ABANI CHOWDHURY Vs. STATE

JUDGEMENT

(1.) ONE Haradhan Banerjee, an ex-employee of the Union Co-operative Insurance Society Ltd. , gave an information to the police. On 7-10 1969, the police recorded an F. I. R. Investigation was taken up and then on 11 2 1976, charge sheet was submitted against are P. K. Roy Choudhury, the then Claims Officer of that Company, in respect of offences under sections 120b, 409, 467 471 477 and 109 IPC before the Chief Metropolitan Magistrate. He made a confession before the Presidency Magistrate, Calcutta. P. K. Roy Choudhury applied for tendering him pardon and also for being examined as an approver. The defense raised an objection. On 28 8 76, the learned Additional Chief Metropolitan Magistrate granted him pardon and directed his examination under section 306 (4) of the Criminal Procedure Code, 1973. He was examined and cross-examined before the Chief Metropolitan Magistrate. Then on 14/2/1979, he was committed to sessions by rejecting the defense contention that no such commitment could be made. When the matter came up before the learned Judge of the City Sessions Court, Calcutta, various objections were raised by the defense. against the commitment. The learned Judge turned down the objection and stated that in view of the decision of the case of State v. Dilip Kumar Das in 1979 (1) CHN 240, the order of commitment had been made to the Court of Sessions according to the provisions of section 306 (5) (a) (i) of the Code. That order was final and ,he had no option but to try the case. Hence this revisional application by the accused.

(2.) MR. N. C. Banerjee, learned Advocate appearing on behalf of the petitioner, has contended that the decision of the learned Single Judge in the case of State v. Dilip Kumar Das is not correct Though section 360 (5) (a) (i) of the Criminal Procedure Code says that in such a case the Chief Judicial Magistrate can commit to sessions if cognizance had been taken by him, in fact, he has no such power of commitment because that section does not say that such a commitment would be made according to the provisions of section 209 of the Code. Section 323 of the Code says that if in an enquiry into an offence or a trial before the Magistrate, it appears that the case is one which ought to be tried by the Court of Sessions, the Magistrate shall commit it to that Court. By an amendment made in 1978, it has been added at the end of that section that "thereupon the provisions of Chapter XVIII shall apply to the commitment so made. " But no such words have been added to section 306 by any amendment. Since section 20? alone deals with the provisions for commitment and inasmuch as those words are missing from section 306, the Magistrate has no power of commitment.

(3.) MR. B. Miter, learned Public prosecutor, has contended that the case of State vs. Dilip Kumar Das was wrongly decided. Investigation was commenced in this case according to the provisions of the old Criminal Procedure Code. But in view of the saving provisions contained ir. section 484 (2) of the new Code, this case would be governed by the provisions of the old Code. He has referred to sub-section (2), which says that notwithstanding the repeal of the old Criminal procedure Code, if there is any appeal, application, trial, enquiry or investigation pending, then the same shall be reposed of, continued, held or made as the case may be, according to the provisions of the old Code. The proviso to subsection (2) says that "provided that every enquiry under the Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code. "