Desai, J. - (1.) Consequent upon the order made by a Constitution Bench of this Court on February 16, 1984 in the Judgment rendered in Criminal Appeal No.356 of 1983 and Transferred Case No. 347 of 1983 along with Transferred Case No. 348 of 1983, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of the Special Judge, Greater Bombay (Shri R. B. Sule) were withdrawn and stood transferred to the High Court of Bombay. In compliance with the direction given in the same judgment, the learned Chief Justice of the High Court of Bombay assigned both the cases to Mr. Justice S. N. Khatri, a sitting Judge of the High Court. The learned Judge called upon the parties to appear before him on March 12, 1984. When the cases were taken up for hearing, certain preliminary objections were raised on behalf of the accused which we were told have been dealt with by the learned Judge in his order dated March 16, 1984. In respect of two issues further consideration was postponed. These issues turn upon the question of procedure to be adopted by the learned Judge in the trial of the two cases and who should be in charge of the prosecution. In our opinion, if the judgment of this Court was read with care and precision, these two questions would have hardly arisen. However, two misc. petitions were moved in this Court for clarification of the judgment so as to thwart avoidable delay in the trial of cases.
(2.) The operative portion of the judgment which has a bearing on the question raised reads as under: "Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay Shri R. B. Sule are withdrawa and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court". In the penultimate paragraph of the judgment while allowing the appeal this Court directed as under: "This appeal accordingly succeeds and is allowed. The order and decision of the learned Special Judge Shri R. B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged."
(3.) Reading two directions together, it clearly emerges that the learned Judge has to hold trial according to the procedure prescribed in Chapter XIX-B i. e. the procedure prescribed in Sections 244 to 247 of the Code of Criminal Procedure 1973. To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate. This position is clear and unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred Case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of Judicature at Bombay against the order of the learned Special Judge Shri R. B. Sule discharging the accused. If the criminal revision application was not withdrawn to this Court, the High Court while hearing criminal revision application could have under Section 407 Code of Criminal Procedure, 1973 transferred the Special case from which criminal revision application arose to itself for trial before itself and in such a situation the High Court under Section 407 (8), Code of Criminal Procedure, 1973 would have to follow the same procedure which the Court of Special Judge would have followed if the case would not nave been so transferred. It is not in dispute that the learned Special Judge while holding the trial was required to follow the procedure prescribed by the Code of Criminal Procedure, 1973 for trial of warrant cases by Magistrates and in the facts of this case the procedure would be in respect of cases instituted otherwise thanon police report. The trial was to proceed further from the stage when the accused was discharged. This in our opinion is obvious and needs no further clarification. Section 8 (1) of the Criminal Law Amendment Act, 1952 as interpreted by this Court in Criminal Appeal No. 247 of 1983 decided on February 16, 1984 makes this position unambiguous and abundantly clear.;