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BOMBAY HIGH COURT
DESHMUKH AND NAIK, JJ.
Shriyans Prasad Jain, Petitioner
versus
Shanti Prasad Jain and others, Respondents.
Criminal Applns Nos. 442 and 909 of 1976,
Decided on : 9 -9 -1976.
The Court held that the proceedings before the Chief Metropolitan Magistrate (CMM) from 4-1-1972 were unlawful as he was not the Magistrate taking cognizance of the offence and therefore lacked jurisdiction to record the statements of the approvers or pass any order under Section 306(5)(a)(i) of the new Code. The Court directed the transfer of the case from the CMM's file to the file of the Additional Chief Metropolitan Magistrate (ACMM) 3rd Court, Esplanade, Bombay, for completion of the recording of the statements of the approvers under Section 306(4) and passing an appropriate order under Section 306(5)(b) of the new Code.
Fact of the Case:
The case involved a criminal proceeding where pardon was granted to two accused persons during investigation and a charge-sheet was presented before the Additional Chief Presidency Magistrate (ACPM) 3rd Court, Esplanade, Bombay. The case was subsequently transferred to the file of the Chief Presidency Magistrate (CPM), who withdrew the case from the ACPM's file and recorded statements of the approvers. The CPM then passed an order committing the accused to the Court of Session. The accused challenged the legality of the CPM's order, arguing that the recording of statements by the CPM was unlawful and that the case should have been disposed of under the provisions of the old Code, which was in force at the time of the institution of the case.
Finding of the Court:
The Court held that the recording of statements by the CPM was unlawful as he was not the Magistrate taking cognizance of the offence. The Court found that the Magistrate taking cognizance was the ACPM 3rd Court, Esplanade, Bombay, and that the CPM had no authority to withdraw the case from the ACPM's file under Section 528(2) of the old Code, as this provision could not override the specific provisions of Section 337(2) of the old Code, which required the recording of the approver's statement in the Court of the Magistrate taking cognizance.
Issues: 1. Whether the recording of statements by the CPM was lawful. 2. Whether the case should have been disposed of under the provisions of the old Code or the new Code.
Ratio Decidendi: 1. The Court held that the recording of statements by the CPM was unlawful as he was not the Magistrate taking cognizance of the offence. The Court found that the Magistrate taking cognizance was the ACPM 3rd Court, Esplanade, Bombay, and that the CPM had no authority to withdraw the case from the ACPM's file under Section 528(2) of the old Code, as this provision could not override the specific provisions of Section 337(2) of the old Code, which required the recording of the approver's statement in the Court of the Magistrate taking cognizance. 2. The Court held that the case should have been disposed of under the provisions of the new Code, as the new Code came into force on 1-4-1974 and the case was pending at that time. The Court found that the proviso to Clause (a) of sub-section (2) of Section 484 of the new Code applied to the case, as the proceeding before the Magistrate was a committal proceeding under Chapter XVIII of the old Code.
Final Decision: The Court quashed the entire proceeding before the CMM from and after 4-1-1972 and directed the transfer of the case to the ACMM 3rd Court, Esplanade, Bombay, for completion of the recording of the statements of the approvers and passing an appropriate order under Section 306(5)(b) of the new Code.
DESHMUKH, J.:- These two petitions arise out of an order passed by the Chief Metropolitan Magistrate in Criminal Case No. 1/P of 1972 on an application dated 3rd February 1975 by original accused No.1. The order was passed on 18th July 1975. Against that order original accused No. I went in revision to the Court of Session Greater Bombay, being Criminal Revision Application No. 242 of 1975. That application was disposed of on 1st October 1975. Being aggrieved by this final order giving certain directions original accused No.2 has filed Criminal Application No. 442/76 and original accused No.1 has filed Criminal Application No. 909/76. Though the points of view of the parties involved are different, the arguments are common and they are addressed against the same order of the learned Magistrate as varied by the Addl. Sessions Judge. Hence these petitions are heard together and will be disposed of by this common order.
2. The relevant facts for the purpose of deciding these petitions are not in dispute. On a complaint lodged by the Deputy Secretary to the Government of India, Department of Company Law Administration addressed to the Additional Inspector General of Police, C.B.I., S.P.E. New Delhi, an offence under S.409 and S.409 read with S.120-B of the Penal Code was registered and the investigation was carried out by the C.B.I. Having completed the investigation, the Police applied on 4th July 1969 to Shri M.M. Dhruv, the Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, for granting pardon to two accused persons named P.L. Sah and T.P. George. They were granted pardon by the Magistrate on that day. Immediately after obtaining the order of pardon the Police filed charge-sheet on the same day in the same Court, viz. the Court of the Addl. C.P.M. 3rd Court, Esplanade, Bombay, presided over by Mr. M.M. Dhruv. Nothing happened in the case for some time. On 5-1-1970 another application was filed requesting the Magistrate to grant pardon to present respondents Nos. 3 and 4 M/s. J.C. Jain and P.K. Roy. That application was in due course rejected by an order dated 19-10-1970. On 19-7-1971 examination-in-chief of T.P. George commenced obviously under S.337(2) of the old Code. When this case was instituted Cr. P.C., 1898 was in force and it was replaced by Cr. P.C., 1973 as from 1st April 1974. Since both these Codes are relevant, in this case, they will be refered to as the old Code and the new Code respectively.
3. This examination and the cross-examination continued till 1st of January 1972 when the Presiding Magistrate Mr. Dhruv was promoted and appointed as the Chief Presidency Magistrate. After taking charge of his new assignment Mr. Dhruv in his capacity as the C.P.M. withdrew this part-heard case from the file of the Addl C.P.M. 3rd Court, Esplanade, Bombay, to his own court by an order dated 4th January 1972. The original case which was numbered as 485/P of 1969 in the Court of the Addl. C.P.M. 3rd Court, Esplanade, Bombay, was marked as Case No. 1/P of 1972. The part finished cross-examination of T.P. George was completed by 21st August 1972. The examination of the second approver P.L. Sah was commenced on 10th October 1972. His cross-examination was still in progress when the new Code came into force on 1-4-1974.
4. On 2nd May 1974 the prosecution made an application that the provisions of the new Code apply and without conducting any further inquiry the Magistrate should immediately commit the case to the Court of Session. This application was rejected by the Magistrate by his order dated 8-7-1974. He pointed out that the application was premature and he had to complete the recording of the evidence of the second approver without which no further action can be taken. This examination of P.L. Sah was concluded on 3rd February 1975 on which day original accused No. 2, now respondent No. 2, made the application in question which has led to the filing of these two petitions in view of certain orders pa
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