STATE OF MAHARASHTRA Vs. SHANTI PRASAD JAIN

JUDGEMENT

(1.) THIS is a reference by the Additional Chief Metropolitan Magistrate, third Court, Esplanade, Bombay, under Section 395(2) of the Criminal Procedure Code. He has formulated the following three points for decision of the High Court; (1) Additional Chief Metropolitan Magistrate, Bombay, being invested with all the judicial powers of the Chief Metropolitan Magistrate, whether Additional Chief Metropolitan Magistrate can be considered on par with the Chief Metropolitan Magistrate for the purpose of Section 306 of the Criminal Procedure Code? (2) Whether in Sub -clause (i) of Clause (a) of Sub -section (5) of Section 306 viz. '... or if the Magistrate taking cognizance is the Chief Judicial Magistrate', the expression 'Chief Judicial Magistrate (Chief Metropolitan Magistrate in Bombay)' includes Additional Chief Metropolitan Magistrate? (3) Whether if the Magistrate taking cognizance of the offence under Section 306 is Additional Chief Metropolitan Magistrate, he like the Chief Metropolitan Magistrate, has to commit the case for trial to the Court of Session under Sub -clause (0 of Clause (a) of Sub -section (3) of Section 306 or whether he has to make over the case for trial to the Chief Metropolitan Magistrate under Clause (b) of Sub -section (5) of Section 306?

(2.) ON behalf of the accused persons a technical objection is raised to the maintainability of the reference itself. What is alleged is that the criminal case pending on the file of the learned Magistrate was once before this Court as revision applications were filed by the accused persons against the order of the then Chief Metropolitan Magistrate on whose file the case was once pending. The decision of a Division Bench of this Court is reported in Shriyans Prasad v. Shanti Prasad .

(3.) WHILE he was recording the evidence of the other witness, prosecution made an application that the provisions of the new Code applied to the present proceedings and the case should be forthwith transferred to the Court of Session. This application was rejected by the learned Magistrate. On hearing arguments of other side he felt that he had to complete the recording of the statements under Section 337 of the old Code and he had also the right to assess the evidence under Section 173 and pass an appropriate order. That order led to two separate applications being filed, which were disposed of by the above mentioned reported judgment.