SITA RAM PRASAD Vs. HARI LAL SAO

JUDGEMENT

(1.) This application by Sita Ram Prasad under section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Code') it directed against the order dated 27.1.1976 passed by the Sub-divisional Judicial Magistrate, Hilsa at Bihar Sharif, transferring the case from his file to the Sub-divisional Magistrate, Hilsa at Bihar Sharif (Executive Magistrate), after examining the petitioner-complainant on solemn affirmation under section 200 of the Code on 6.12.75 on the ground that when the complainant was filed by the petitioner on 14.10.69, the provisions contained under the old Code were applicable. The relevant portion of the impugned order which is in Hindi reads thus : <IMG>JUDGEMENT_82_BLJ_1978Image1.jpg</IMG>

(2.) In this case the petitioner, as mentioned earlier, had lodged a complaint against the opposite party under sections 147, 148, 380 and 427 of the Indian Penal Code relating to a loot committed in the shop of the petitioner, in which he had filed a protest petition on 13.10.69 and complaint petition on 14.10.69. The Sub-divisional Magistrate, Bihar Sharif, did not examine the petitioner on solemn affirmation ; nor did he take cognizance and accepted the final report, which the police submitted, by order dated 14.8.71, against which order the petitioner came to this Court in Criminal Revision No. 2466 of 1971 and that was allowed by this Court on 26.7.74 whereby it was ordered for examination of the petitioner on solemn affrmation and the case was remanded to the Sub-divisional Magistrate, Bihar Sharif, for needful. Sub-divisional Magistrate, Bihar Sharif, sent the cass to the Court of the Sub-divisional Judicial Magistrate, Hilsa, for disposal, who after receipt of the record, examined the petition on solemn affirmation on 6.12.76 and was pleased to examine one of the witnesses Lallo Ram in support of the prosecution case, out of several witnesses present on 12.12.75, and when other witnesses were going to be examined, the other opposite party appeared through an Advocate and objected to the examination of witnesses on the ground that he had no jurisdiction to try the case and subsequently on 22.12.75 filed certified copy of the order sheet dated 24.7.74 of this Court in Criminal Misc. No. 1512 of 1974. Thereupon, the Sub-divisional Judicial Magistrate transferred the case by the impugned order dated 27.1.76 to the Sub-divisional Magistrate, Hilsa (Executive Magistrate) for disposal. The Sub-divisional Magistrate directed the petitioner for fresh examination and had fixed 5.4.76.

(3.) Learned counsel for the petitioner has assailed the impugned order, the relevant portion of which has been quoted above and he has contended that in this case the provision of the new Code would be apolicable. In order to find support to his contention he has relied on Bhubneshwar Singh v. The State of Bihar, (1976 BBCJ 496) and drew my attention to paragraph 7 of the judgment, which reads thus : Lastly it is urged that immediately before the commencement of the new Code the proceeding was pending and therefore, this case is covered by section 484 (2) of the new Code and hence notwithstanding of the repeal of the old Code processes should have been issued and this should have been disposed of in accordance with the provisions of the old Code by the S. D. O. Lakhisarai. There is no substance in this argument. The wordings of sub-sections (2) (a) of section 484 of the new Code are quite clear. This case does not come under clause (a) of sub-section (2) of section 484 of the new Code. The words of the statute. When there is doubt about their meaning, are to be understood in the sense, in which they best harmonised with the aspect of the enactment and the object which the Legislature had in view. We have to seek aid from other provisions of the new Code in order to arrive at the proper meaning of the words used in sub-section (2) of section 484 and that interpretation should be accepted, which would result in properly carrying out the intention of the Legislature in enacting the new Code. In the old Code Executive Magistrate could exercise powers under sections 190, 192 and 200 to 204 but they can not do so now. As pointed out above, the intention of the Legislature in enacting the new Code is that the Judicial Magistrates should exercise the powers of Magistrates under sections 190, 192 and 200 to 204 of the new Code. These changes have been introduced with the clear object of separation of the judiciary from the executive, which the new Code seek to bring about. Under the new Code the courts of Executive Magistrate cannot exercise powers and functions of a Magistrate under sections 190, 192 and 200 to 204. Section 20 (4) says that :