SHRIYANS PRASAD JAIN Vs. SHANTI PRASAD JAIN

JUDGEMENT

(1.) THESE two petitions arise out of an order passed by the Chief Metropolitan Magistrate in Criminal Case No. 1/p of 1972 on an application dated 3rd February 1975 by original accused No. 1. The order was passed on 18th July 1975, Against that order original accused No. 1 went in revision to the Court of Session, Greater Bombay, being Criminal Revision Application No 242 of 1975. That application was disposed of on 1st October 1975. Being aggrieved by this final order giving certain directions original accused No. 2 has filed Criminal Application No. 442/76 and original accused No. 1 has filed Criminal Application No. 909/76. Though the points of view of the parties involved are different, the arguments are common and they are addressed against the same order of the learned Magistrate as varied by the Addl. Sessions Judge. Hence these petitions are heard together and will be disposed of by this common order.

(2.) THE relevant facts for the purpose of deciding these petitions are not in dispute. On a complaint lodged by the Deputy Secretary to the Government of India, Department of Company Law Administration addressed to the Additional Inspector General of Police, C. B. I. , S. P. E. New Delhi, an offence Under Section 409 and Section 409 read with Section 120-B of the Penal Code was registered and the investigation was carried out by the C. B. I. Having completed the investigation, the Police applied on 4th July 1969 to Shri M. M. Dhruv, the Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, for granting pardon to two accused persons named P. L. Sah and T. P. George. They were granted pardon by the Magistrate on that day. Immediately after obtaining the order of pardon the Police filed charge-sheet on the same day in the same Court, viz. the Court of the Addl. C. P. M. 3rd Court, Esplanade, Bombay, presided over by Mr. M. M. Dhruv. Nothing (happened in the case for some time. On 5-1-1970 another application was filed requesting the Magistrate to grant pardon to present respondents Nos. 3 and 4 J. C. Jain and P. K. Roy. That application was in due course rejected by an order dated 19-10-1970. On 19-7-1971 examination-in-chief of T. P. George commenced obviously Under Section 337 (2) of the old Code. When this case was instituted Cr. P. C. , 1898 was in force and it was replaced by Cr. P. C. , 1973 as from 1st April 1974. Since both these Codes are relevant, in this case, they will be refer-ed to as the old Code and the new Code respectively.

(3.) THIS examination and the cross-examination continued till 1st of January 1972 when the Presiding Magistrate Mr. Dhruv was promoted and appointed as the Chief Presidency Magistrate. After taking charge of his new assignment Mr. Dhruv in his capacity as the C. P. M. withdrew this part-heard case from the file of the Addl C. P. M. 3rd Court, Esplanade, Bombay, to his own court by an order dated 4th January 1972. The original case which was numbered as 485/p of 1969 in the Court of the Addl. C. P. M. 3rd Court, Esplanade, Bombay, was marked as Case No. 1/p of 1972. The part finished cross-examination of T. P. George was completed by 21st August 1972. The examination of the second approver P. L. Sah was commenced on 10th October 1972. His cross-examination was still in progress when the new Code came into force on 1-4-1974.