D. M. CHANDRA SHEKHAR, CJ.

This is an application under Sec tion 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) by the accused in complaint Case No. 212 of 1973 on the file of the Judicial Magistrate, Kotwali, Kanpur. They have prayed for quashing the proceedings before the learned Magistrate.

Opposite party No. 1 herein had filed a complaint before the lear ned Magistrate against the accused alleging that they had committed an offence punishable under Section 395 I. P. C. After examining the complainant and one other witness under Section 200 of the Code of Cri minal Procedure, 1898 (hereinafter referred to as the old Code), the lear ned Magistrate issued summonses to the accused (the applicants herein.) Before the learned Magistrate proceeded to take evidence under Section 208 of the old Code, the new Code came into force on April 1, 1974. The learned Magistrate did not proceed with taking evidence under Sec tion 208 of the old Code, but decided by his order dated February 19, 1976 to commit the accused to the Court of Sections under Section 209 of the new Code.

In this application Sri R. D. Upadhya, learned counsel for the ap plicants, has contended that in view of coming into force of the new Code during the pendency of the proceedings before the learned Magis trate, those proceedings should be quashed leaving it open to the learned Magistrate to follow the procedure under the new Code.

In support of his contention Sri Upadhya has relied on the decision of Asthana, C. J. , in Criminal Misc. Case No. 4944 of 1974, Gyanendra Nath Awasthi and others v. State and others. There, on a private complaint of offences under Sections 395 and 397 I. P. C. the Magistrate had, under the provisions of the old Code, issued summonses and bail able war rants to the accused. During the pendency of that case the new Code came into force and the accused made an application praying for recalling the summonses and warrants They had contended that under provisions of the new Code the learned Magistrate was bound to examine all the complainants witnesses before issuing summonses or bail able warrants to the accused and that since all such witnesses had been examined before the Magistrate had issued summonses and warrants under the old Code, de novo proceedings had to be started under the provisions of the new Code. That application had been rejected by the learned Magistrate. His Lordship allowed the application under Section 482 of the new Code, quashed the order of the learned Magistrate, cancelled the summonses and warrants issued under the old Code and directed the learned Magis trate to follow the procedure under the new Code.

The aforesaid decision of this Court clearly supports the contention of Sri Upadhya.

However, the learned Government Advocate urged that the afore said decision of this Court requires reconsideration. He argued that when the proviso to sub-section (2) of Section 484 of the new Code, states that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of the new Code, shall be dealt with and disposed of in accordance with the provisions of the new Code, it was clear that whatever had been validly done under the provisions of the old Code prior to the new Code coming into force, was not rendered invalid by the repeal of the old Code. He maintained that since the order of the learned Magistrate issuing summonses and warrants, was valid order under the provisions of the old Code, that order should stand unaffected and that the provisions of the new Code should be followed for the subsequent stages of the proceedings.

In the aforesaid decision his Lordship had pointed out the course suggested by the learned Government Advocate would lead to incongruity and anomalous results. The view taken in the above decisions receives support from the decision of the Madras High Court in Paranjothi Udyar and others v. State and others 1976 Cr. L. J. 598.

However, the l

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