The main legal point established in the judgment is that the Additional Chief Metropolitan Magistrate should be deemed in law to be the Chief Metropolitan Magistrate for the purpose of section 306(5) of the Criminal Procedure Code, and as such, had to pass an order committing the case to the Court of Session.

DESHMUKH J.- This is a reference by the Additional Chief Metropolitan Magistrate. 3rd Court, Esplanade, Bombay, under section 395 (2) of the Criminal Procedure Code. He has formulated the following three points for decision of the High Court:

(1) Additional Chief Metropolitan Magistrate, Bombay, being invested with all the judicial powers of the Chief Metropolitan Magistrate, whether Additional Chief Metropolitan Magistrate can be considered on par with the Chief Metropolitan Magistrate for the purpose of section 306 of the Criminal Procedure Code?

(2) Whether in sub-clause (i) of clause (a) of sub-section (5) of section 306 viz. ".. or if the Magistrate taking cognizance is the Chief Judicial Magistrate" the expression "Chief Judicial Magistrate" (Chief Metropolitan Magistrate in Bombay) includes Additional Chief Metropolitan Magistrate.

(3) Whether if the Magistrate taking cognizance of the offence under section 306 is Additional Chief Metropolitan Magistrate, he like the Chief Metropolitan Magistrate, has to commit the case for trial to the Court of Session under sub-clause (i) of clause (a) of Sub-section (5) of section 306 or whether he has to make over the case for trial to the Chief Metropolitan Magistrate under clause (b) of sub-section (5) of section 306?

2. On behalf of the accused persons a technical objection is raised to the maintainability of the reference itself. What is alleged is that the criminal case pending on the file of the learned Magistrate was once before this Court as revision applications were filed by the accused persons against the order of the then Chief Metropolitan Magistrate on whose file the case was once pending. The decision of a Division Bench of this Court is reported in Shriyans Prasad v Shanti Prasad1.

3. While disposing of those criminal applications this Court gave clear direction in paragraph 67 that the only function of the Magistrate was to follow those instructions and pass appropriate orders. This is a technical objection. The objection on merits is that the, Additional Chief Metropolitan Magistrate cannot be equated with Chief Judicial Magistrate for the purpose of section 306, Criminal Procedure Code and the relevant clause under which the learned Magistrate must act, as rightly pointed out earlier, is clause (b) of sub-section (5) of section 306. The learned Magistrate's reasoning that he having all the powers of the Chief Judicial Magistrate or the Chief Metropolitan Magistrate the relevant clause for passing the final order would be clause (a) and not (b). The learned Magistrate was then promoted as a Chief Metropolitan Magistrate (then the Chief Presidency Magistrate). He felt that having done the major work in a longish case, he would be in a better position to complete the recording of the approver's statements. Hence by an administrative order under section 528 of the old Code he withdrew the case from the file of the Court of the 3rd Additional Chief Metropolitan Magistrate and took it on his own file.

4. While he was recording the evidence of the other witnesses, prosecution made an application that the provisions of the new Code applied to the present proceedings and the case should be forthwith transferred to the Court of Session. This application was rejected by the learned Magistrate. On hearing arguments of other side he felt that he had to complete the recording of the statements under section 337 of the old Code and he had also the right to assess the evidence under section 173 and pass an appropriate order. That order led to two separate applications being filed, which were disposed by the above mentioned reported judgment.

5. While disposing of those applications it was held that the new Code applies and section 306 must be given its effect. Accordingly, it was held that the only Magistrate who could have the jurisdiction to record the statements of the approver was the Magistrate who took cognizance. The cognizance is taken only once and that was done