Where a case is pending for trial before the Sessions Court on the date of coming into force of the new Code, it is liable to be tried in accordance with the provisions of the old Code.

Headnote:
CRIMINAL PROCEDURE - SECTION 484 - SECTION 494 - SECTION 397 - SECTION 435 - Where a case was already committed to the Court of Session before the new Code came into force, the Sessions Judge alone had jurisdiction to try it.
Fact of the Case:

The accused were charged with offences under section 120-B read with Sections 420/511, 467, 471 I.P.C. read with section 5 of the Imports and Exports (Control) Act, 1947. The Magistrate recorded the evidence and passed an order on March 18, 1974 committing the accused to the Sessions Court for trial. The record of the case was received by the Sessions Court before April 1, 1974. However, the case was registered by the Sessions Court after April 1, 1974.
Finding of the Court:

The Sessions Judge transferred the case to the Chief Metropolitan Magistrate, Bombay, holding that under the new Code the Chief Metropolitan Magistrate had jurisdiction to try these offences. The Additional Chief Metropolitan Magistrate referred the case to the High Court for retransfer of the case to the Sessions Court for trial.
Issues: Whether a case already committed by the Magistrate before the Code of Criminal Procedure, 1973, came into force on April 1, 1974, but which was taken up for trial by the Sessions Court after that date, should be tried under the old Code by the Sessions Court or whether it should be tried by the Magistrate since under the new Code the Magistrate is competent to try the offence.
Ratio Decidendi: Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force.
Final Decision: The reference is accepted and it is directed that Criminal Case No. 2118/S of 1973 which was already committed by the Metropolitan Magistrate to the Court of Session where it was numbered as Sessions Case No. 288 of 1974 be transferred from the Court of the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Bombay to the Court of Session for Greater Bombay for trial according to law.

JUDGMENT - M.S. APTE, J.:---A short point which is raised on this reference made by the Additional Chief Metropolitan Magistrate is whether a case already committed by the learned Magistrate before the Code of Criminal Procedure, 1973, came into force on April 1, 1974, but which was taken up for trial by the Sessions Court after that date, should be tried under the old Code by the Sessions Court or whether it should be tried by the Magistrate since under the new Code the Magistrate is competent to try the offence.

2. The facts giving rise to this reference are shortly these : The three respondents were challenged by the police before the Additional Chief Metropolitan Magistrate on a charge for offences under section 120-B read with Sections 420/511, 467, 471 I.P.C. read with section 5 of the Imports and Exports (Control) Act, 1947, before the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) came into force on April 1, 1974.

3. The learned Magistrate recorded the evidence and passed an order on March 18, 1974 committing the accused to the Sessions Court for trial. The record of the case was received by the Sessions Court before April 1, 1974. However, it appears that actually the case was registered by the Sessions Court in its register after April 1, 1974.

4. When the case came up for trial before the Additional Sessions Judge, Mr. Thorate, he framed a charge against the accused for offences but he was of the view that under the new Code the Chief Metropolitan Magistrate had jurisdiction to try these offences. He, therefore, passed an order transferring the case for trial to the Chief Metropolitan Magistrate, Bombay.

5. In taking this view, the Additional Sessions Judge relied upon an unreported decision of Vimadalal, J. in (Criminal Revision Application No. 399 of 1974 decided on January 27, 1975)1

6. When the matter came up before the Additional Chief Metropolitan Magistrate, he found that there were two decisions in which contrary view was taken one of a Division Bench of this Court in (Janardan Sarvottam v. State of Maharashtra)2, 78 Bom.L.R. 380, and the other of the Supreme Court in (State of Karnataka v. K.H. Annegowda)3, A.I.R. 1977 S.C. 357. He has, therefore, made this reference to this Court for retransfer of the case to the Sessions Court for trial.

7. It is true that Vimadalal, J. in that case on facts quite similar to the facts of the present case upheld the order made by the Sessions Judge for retransfer of the case back to the Magistrate who had committed it before the new Code came into force as in his view the provisions of the new Code were applicable to such a case.

8. However, the Supreme Court has now taken a contrary view in the aforesaid decision in State of Karnataka v. K.H. Annegowda. In that case, a case was registered on October 13, 1973 at the Police Station for murder against the respondents-accused in that case. After completing the investigation, charge-sheet was put up against the respondents in the Court of Judicial Magistrate. The Magistrate held inquiry in accordance with the provisions of Chapter XVIII of the old Code as that Code was then in force and passed an order committing the accused for trial to the Court of Session for an offence under section 302 read with section 34 of the Indian Penal Code on March 15, 1974.

9. Pursuant to this order the record of the case was also transmitted to the Court of Session by March 23, 1974.

10. Before the Sessions Court the case came up for trial on July 15, 1974, that is after the new Code came into force on April 1, 1974.

11. It appears that on behalf of the prosecution the Public Prosecutor having made an application praying for permission to withdraw from the prosecution under section 494 of the old Code, the learned Sessions Judge by an order passed on June 29, 1974 accorded permission prayed for and discharged the accused.

12. Thereafter the State ordered fresh investigation into the offence and in consequence of fresh

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