STATE Vs. ACHHRU RAM

JUDGEMENT

(1.) ACTING under Section 438, Criminal Procedure Code, 1898, briefly the old Code, the learned Additional Sessions Judge, Sangrur, has reported this case with the recommendation that for the reasons set out therein the order dated July 28, 197(sic), passed by the learned Judicial Magistrate 1st Class, Malerkotla, during the trial of a case under Section 9 of the Indian Opium Act should be quashed and a direction issued to the Magistrate to record the statement of S. I. Surjit Singh before proceeding further. By the said order the Magistrate virtually closed the case of the prosecution and adjourned the case to August 5, 1972 for the examination of the accused and his defense, if any.

(2.) FACTS narrated by the learned Additional Sessions Judge in his referring order are not in dispute. Those which stand out and need be mentioned are ; (1) That S. I. Surjit Singh was concerned with the investigation of the case and thus indubitably had his own importance from the point of view of the prosecution ; (2). That he was present in the Court on one of the dates when he could well be examined. On that occasion the Magistrate gave effect to the objection of the accused that the prosecution evidence should not be examined piecemeal; (3). That he was on leave up to August 18, 1972, a fact which was brought to the notice of the Magistrate. These facts deserved notice and in particular the fact that grant of opportunity to the prosecution to examine S. I. Surjit Singh on the adjourned date would not have hindered the progress of the case. The order made was not based on sound discretion. I am satisfied in view of the aforementioned facts that the learned Magistrate acted in haste in placing a positive barrier in the way of the prosecution and that the order suffers from impropriety.

(3.) INDISPUTABLY a revision petition at the instance of the State against the order of the Magistrate was pending disposal at the time when on April 1. 1974, the New Code came into force. The argument that the revision petition is outside the saving provision is adequately negatives by the use of the word 'application' in Sub -section (3) of Section 397 and the words 'application for revision' in Sub -section (3) of Section 399 of the New Code. Then apart from the setting in which the word 'application' is placed in the saving provision there is ample evidence in the New Code itself to justify the view that the word 'application' has to be understood in the sense of a petition invoking revisional jurisdiction under the old Code.