The main legal point established in the judgment is that the court should continue to function as a Court of enquiry and follow the provisions relating to committal in the new Code, rather than dropping the committal proceedings and proceeding with the trial of the case. The trial following the commitment should be in accordance with the new Code.

1. The petitioners are accused 1, 3 and 5 in C C. 251 of 1977 on the file of the Chief Judicial Magistrate, Ernakulam. The petition is filed challenging the order of the Principal Assistant Sessions Judge, Ernakulam, transferring Sessions Case No. 70 of 1975 of that court under S.228 (1) (a) of the Code of Criminal Procedure for trial by the Chief Judicial Magistrate Ernakulam.

2. The proceedings had a very chequered career. The complainant is the Deputy Chief Controller of Imports and Exports. New Delhi. The complaint was filed in 1968 before the District Magistrate, Ernakulam, as he then was, alleging that the 5 accused in the case committed offences punishable under Ss 120B, 420,467 and 471 of the Indian Penal Code and also under S.5 of the Imports and Exports (Control) Act, 1947 and it was registered as Preliminary Enquiry No. 3 of 1968 The case was being adjourned from time to time on the ground that certain records necessary for the trial of the case were produced in an appeal pending before the High Court, Madras. After a number of adjournments, the case was posted for evidence, though the documents had not been received from the Madras High Court. On 12 6 72 the court discharged the accused on the ground that the complainant was absent and no witnessess were produced. The complainant took the matter in revision - CRP. No 33 of 1972-before- the Sessions Judge, Ernakulam. The Sessions Judge allowed the revision petition and directed the District Magistrate to make further enquiry into the complaint and to dispose of the same in accordance with law. This order was passed on 3112 73. The case was re-registered as Preliminary Enquiry No.1 of 1974 in the Court of the Dist. Magistrate. By the time the case came up for disposal, the new Code of Criminal Procedure (hereinafter to be referred to as 'new Code') bad come into force. The District Magistrate, who is redesignated as Chief Judicial Magistrate under the new Code followed the formalities under S.208 of the new Code and committed the case to the Court of Session, Ernakulam, under S.209. The Sessions judge made over the case to the Principal Assistant Sessions Judge for disposal. The Principal Assistant Sessions Judge framed charges against the accused and holding that the offences involved were triable by the Chief Judicial Magistrate, passed the impugned order under S.228(1) of the Code transferring the case to the Chief Judicial Magistrate for disposal.

3. The stand taken by the petitioner is that the Sessions Judge bad no jurisdiction to entertain SC. 70 of 1975 as the order of commitment by the Chief Judicial Magistrate purporting to be one under S.209 of the new Code is bad in law. Under the new Code, the offences involved in the case are triable by a First Class Magistrate. Under S.209 of the new Code, the Chief Judicial Magistrate is competent to commit a case to the Court of Session only if it is exclusively triable by that Court. The order of commitment being wrong, the Court of Session should not have taken cognizance of the case The charge framed by the Asst. Sessions judge and the order transferring the case to the Chief Judicial Magistrate, are, therefore, liable to be set aside. The petitioners contend that the case being one registered on a private complaint, they have got the right to cross-examine the witnesses both before and after the framing of the charge. This right is lost to them by the order of commitment and the impugned order and, therefore, they are entitled to have the order of commitment set aside.

4. The point involved in the case relates to the scope and interpretation of S, 484(2)(a) of the Code of Criminal Procedure, 1973. Relevant portions of S.484 reads:

"484 Repeal and savings. (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed. (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,