The revisional jurisdiction under section 397 of the new Code of Criminal Procedure, 1973, is discretionary and not a right vested in a party.

APTEJ.- The short point which arises in this revision application, filed by the original accused Nos. 1 and 2 against the interlocutory order made by the learned Additional Chief Metropolitan Magistrate on April'9, 1974, framing a charge against the petitioners for an offence under section 420 read with section 34 of the Indian Penal Code in Criminal case No. 25 /W of 1973, is whether this revision application is maintainable.

2. This case arises on a private complaint filed by respondent No. 1 R. K. Gurnani, who alleged in substance that the two accused had induced him to part with a sum of Rs. 1,35,000 on making false representations. The complaint was filed on February 19, 1973 and after issuing process against the accused, the learned Magistrate started recording of evidence preparatory to the framing of a charge on October 12, 1973. The r6cording of evidence was concluded on January 16, 1974. Thereafter, for some reason or the other, the case was adjourned from time to time without passing any order as to the framing of the charge.

3. In the meantime, on April 1, 1974, the Code of Criminal Procedure, 1973 came into force and thereafter, as already noted above, the interlocutory order framing the charge against the accused for the aforesaid offence was made by the learned Magistrate on April 9, 1974.

4. Under the new Code, the powers of revision of this Court are to a certain extent curtailed, inasmuch as sub-section (2) of section 397 provides that the powers of revision conferred by sub-section (1) of that section shall not be exercised either by this Court or by the Sessions Court in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. It is in view of this provision that the question as to the maintainability of the present revision application arises since the interlocutory order against which the present revision petition has been directed has been passed after the new Code came into force.

5. Now, section 484 of the new Code is the repealing and saving section. By sub-section (1) of that section, the Code of Criminal Procedure, 1898 has been repealed. Sub-section (2), however, provides:

"(2) Notwithstanding such repeal,-

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 or'1898), as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force."

The proviso to this clause, which perhaps is not relevant .for our purpose, is to the effect that every inquiry under Chapter XVIII of the old Code, that is to say, inquiry into cases triable by Court of Session or High Court, which in pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code, that is, the new Code. In other words, excepting proceedings relating to' inquiry into cases triable by the Court of Session or the High Court, pending proceedings, such as, appeal, application, trial, inquiry or investigation are to be disposed of, continued, held or made according to the old Criminal Procedure Code.

6. After this revision application was filed in this Court, an objection was raised by the office that in view of the aforesaid provisions of sub-section (2) of section 397 of the new Code, this revision petition is not maintainable. The matter was then placed before a single Judge (Gandhi J.), who on April 24, 1974 issued rule for the limited purpose of the preliminary objection and ordered interim stay of the proceedings in the trial Court.

7. The matter was again placed before Gandhi J. on two occasions, as the rule was not served on the other side. Ultimately, the matter came before Shah