THE STATE Vs. PHULA, SON OF SHANKER SINGH

JUDGEMENT

(1.) THIS is a reference made by Shri R.L. Lamba, Additional Sessions Judge, Hissar, under Section 395(2) of the Code of Criminal Procedure, 1973, for decision on points of law mentioned in his order dated 16th May, 1975.

(2.) THE facts of this case are that Phula accused was arrested by the police of Police Station, Rania, Tehsil and District Sirsa, in case First Information Report No. 236 registered under Sections 337 and 324, Indian Penal Code, and Section 27 of the Indian Arms Act. It is alleged that on 10th October, 1973, Kishan, Baj Singh and Phula accused, residents of Ferozabad, were taking liquor at the house of Kishan. At about 2 P.M., when they were taking meals there was an altercation between Kishan and Phula accused and they exchanged fist blows and slapped each other. Kishan accused out of fear entered the house of Resham Singh complainant. Phula accused followed him having a licensed gun in his hand. He abused Resham Singh to turn out Kishan from his house. He also fired a shot from the gun and some of the pellets struck on the right arm of Resham Singh. On the report made by Resham Singh, this case was registered. After the investigation of the case, Phula accused was challaned under Sections 337 and 324, Indian Penal Code, and Section 27 of the Arms Act. The counsel for the accused contended before the Judicial Magistrate, 1st Class, Sirsa, that after the coming into force of the Code of Criminal Procedure, 1973, with effect from 1st April, 1974, the offence under Section 27, Arms Act, has also become exclusively triable by the Judicial Magistrate and, therefore, this case should be tried by that Court. The challan in this case was filed in his Court on 20th March, 1974, and admittedly at that time the offence under Section 27 of the Arms Act was exclusively triable by the Court of Session. After hearing the counsel for the parties, the Judicial Magistrate, 1st Class, Sirsa, held in his order dated 18th May, 1974, that the offence under Section 27 of the Indian Arms Act was exclusively triable by the Court of Session and, therefore, in view of the provisions of Section 209 read with Section 484(2) of the Code of Criminal Procedure, 1973, he committed Phula accused to stand his trial in the Court of Session under Sections 324 and 337, Indian Penal Code, and Section 27 of the Arms Act.

(3.) ADMITTEDLY , the offences under Section 337 and 324, Indian ' Penal Code, are exclusively triable by a Judicial Magistrate, 1st Class. It is undisputed that before the coming into force of the new Code of Criminal Procedure, 1973, with effect from 1st April, 1974, the offence under Section 27 of the Arms Act was exclusively triable by the Court of Session. However, after the coming into force of new Code of Criminal Procedure, the offence under Section 27 of the Arms Act is how triable by a Judicial Magistrate, 1st Class. The challan in this case was filed against the accused in the Court of the Judicial Magistrate, 1st Class, Sirsa, on 20th March, 1974. I set out below the provisions of the Code of Criminal Procedure, which are relevant for the decision of this case: