K.B. Asthana, J. - (1.) I think, on the facts averred in the affidavit filed in support of the application which affidavit has not been controverted, I would be justified to exercise my revisional jurisdiction and quash the order of the learned Magistrate dated 1 -10 -1974.
(2.) IT appears that a complaint for offences under Section 395/397 IPC was filed on 7 -11 -1973 by Babu Lal naming the applicants as accused. The Magistrate took cognizance of the case. After recording the statement of Babu Lal, the complainant, the Magistrate issued summons and bailable warrants against the applicants accused. Meanwhile on 1st April, 1974 the new Code of Criminal Procedure came into force pending the proceedings in the instant case under Chapter XVIII Code of Criminal Procedure (Old). Then on 30th September, 1974 an application was made, on behalf of the applicants accused, by their learned Counsel, praying to the Court to recall its order issuing a bailable warrant and to dispose of the case under the provisions of the New Code of Criminal Procedure as required by law. It was alleged that the offences charged were exclusively boilable by the Court of Session and the learned Magistrate under the provisions of the New Code was bound to examine all the witnesses of the complainant before issuing summons or boilable warrants to the accused and since no such statements had been recorded by the Court under the Old Chapter XVIII of the Old Code the proceedings under the New Code would not further continue without compliance with the provisions of the law. Reliance was placed on the proviso to section 484 of the New Code which says that every inquiry Under Chapter XVIII of the Old Code, shall be dealt with and disposed of in accordance with the provisions of this Code. The learned Magistrate by his order dated 1 -10 -1974 took the view that as the accused had already been summoned under the Old Cod the provision under the New Code that they be not summoned till all the witnesses have been examined, in a case exclusively triable by sessions, will not be attracted, therefore, the question of recording evidence of all the witnesses would not arise under the New Code and rejected the application. I have Heard learned Counsel for the applicants and the learned Government Advocate, I think the learned Magistrate was in error. Section 484 of the New Code repeals the Old Code known as 'the Code of Criminal Procedure 1898.' It provides that notwithstanding such repeal, any appeal, application, trial, inquiry or investigation pending on the day when the New Code came into force, be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898, as in force immediately before the commencement of the New Code as if the New Code had not come into force. But the proviso to sub section (2)(a) of section 484 of the New Code excepts out of the inquiries Under Chapter XVIII of the Old Code from the generally of the savings. It provides that all inquiries Under Chapter XVIII of the Old Code which were pending at the commencement of the New Code shall be dealt with and disposed of in accordance with the provisions of the New Code. From a plain reading of the language used in the proviso there does not appear to be any saving of the proceedings which had taken place Under Chapter XVIII of the Old Code, prior to the commencement of the New Code. I am not impressed with the contention of the learned Government Advocate that whatever had taken place before the Court Under Chapter XVIII of the Old Code will remain preserved and will be binding on the accused onwards from 1st April, 1974, and the further proceedings will continue and be disposed of in accordance with the provisions of the New Code. This could not have been the intention of the law makers. If this argument of the learned Government Advocate is accepted it will create a state of confusion in the application of the law giving rise to incongruity and inconsistency. A perusal of the provisions of Chapter XVIII of the Old Code and of Chapters XV and XVI of the New Code, clearly demonstrate that on or after 1st April, 1974, any pending proceedings Under Chapter XVIII of the Old Code, will not be possible to be fitted in with the provisions of Chapters XV and XVI of the New Code. To my mind the intention is clear that the pending proceedings Under Chapter XVIII of the Old Code from 1st April, 1974, would be held in accordance with the provisions of Chapters XV and XVI of the New Code as the case may be from the very inception. Unless the old proceedings Under Chapter XVIII in the Court which remain incomplete till 30th April 74, are wiped out and ignored, it will not be possible, to my mind, to apply the provisions of the New Code as the scheme under the New Code relating to inquiry is entirely different. One cannot be fitted into the other. The new scheme cannot be fitted into the old scheme.
(3.) IT was next contended by learned Government Advocate that the provision for examination of the prosecution witnesses is contemplated in proviso to sub -Section (2) of Section 202 of Chapter XV of the New Code, and the requirement for furnishing to the accused free of cost a copy of statements recorded under Section 200 or section 202 of all persons examined by the Magistrate, Under Chapter XVI of the New Code, would be provided only where a case is instituted on a complaint after the commencement of the New Code. Learned Government Advocate submitted that it would be section 209 of Chapter XVI of the New Code which would apply and it would be open to the Magistrate without recalling any of his previous orders passed Under Chapter XVIII of the Old Code, to commit the case to the Court of session at once. There is a fallacy in this approach of the learned Government Advocate. If section 202 of Chapter XV and Section 208 of Chapter XVI of the new Code will apply to cases instituted on or after 1st April, 1974 equally then section 209 would apply only to cases instituted on or after 1st April, 1974 in which an accused appears or is brought before the Magistrate.;