O.P.Pradhan - (1.) THIS revision by the State of U.P. is directed against the order dated 17.12.1981, passed by II Additional Sessions Judge, Lucknow in Sessions Trial No. 483 of 1978 whereby be transferred the case for trial by the Chief Judicial Magistrate, Lucknow.
(2.) SHORN of unnecessary details, the facts giving rise to this revision are that seventeen seers of illicit opium which was being carried in a parcel by Grand Trunk Express was intercepted at Jhansi [Railway Station by Police on 3.8.1956 at 00.58 hours. A case was registered and ultimately a charge-sheet was submitted by C.B.C.I.D. of U.P. in 1963 against several accused persons who were involved in the conspiracy in the smuggling of opium from one place to the other. By virtue of Notification No. 1731, VI-760/1963 dated September 3,1964, the State Government created a Court of Special Magistrate, I Class at Lucknow to try this case. The charge-sheet had been submitted under Sections 120B, 468 and 420 I.P.C. as also under Section 9 Opium Act and Sections 13, 14, 15 and 19 of the Dangerous Drugs Act. Accordingly, the Special Magistrate proceeded with the trial of the case. Co-accused v. Ram and Madan Lal pleaded guilty and they were convicted accordingly. Some accused persons died during the pendency of the case in the Court of the learned Special Magistrate and the case against them was accordingly abated. Accused D. M. Raman, Kedar Nath and Mohan Lal turned approvers and their statements on oath were also recorded by the learned Special Magistrate, who after recording his prima facie satisfaction that the accused are guilty of the offences punishable under Sections 120B, 468 and 420, I.P.C, as also Section 9 Opium Act and Sections 13,14,15 and 18 of the Dangerous Drugs Act, committed all the opposite-parties who were accused before him, to the Court of Sessions for trial, by means of the order dated 15.12.1978. This gave rise to S.T.No 483 of 1978. By means of the impugned order dated 17.12.1981. The II Additional Sessions Judge, Lucknow, who was seized of the Sessions trial, transferred the case to the Court of C.J.M. Lucknow on the premise that proviso to Section 484 (2) (a), Cr. P.C., was applicable to the case and the commitment made by the learned Special Magistrate had to be dealt with in accordance with the provisions of new Code of Criminal Procedure. It is this order of the learned Additional Sessions Judge which is the subject-matter of challenge in this revision. I have heard the learned Government Advocate as also the learned counsel for the opposite-parties and perused the lower court record. The only contention which arises for consideration in this revision is if the commitment made by the learned Special Magistrate had to be dealt with in accordance with the old Code of Criminal Procedure or new Code of Criminal Procedure. The learned Government: Advocate, urged before this Court that the learned Special Magistrate had already proceeded with the trial of the accused persons and he had also framed charges against them. He further submitted that two co-accused persons had pleaded guilty before the learned Special Magistrate and they were accordingly convicted by him. He also drew the attention of the Court that accused D.M. Raman, Kedar Nath and Mohan Lal turned approvers and their statements on oath were concluded on 28.11.1978. The learned government Advocate, therefore, submitted that it was a trial held by the learned Special Magistrate and therefore the provisions of Old Criminal Procedure Code would apply in view of Section 484(2) (a) of the New Cr. P.C, which had already come into force while the trial was pending before the learned Special Magistrate. He further submitted that the learned Special Magistrate had no option but to commit the accused for trial to the Court of Sessions once he found that three accused persons had turned approvers and had accepted the tender of pardon and also had been examined on oath under sub-section (2) of Section 337 Cr.P.C, (Old).
(3.) THE learned counsel appearing for the opposite parties, on the other hand, contended that if it is taken to be an inquiry by the learned Special Magistrate, then proviso to Section 484 (2) (a), Cr. P.C, (New) would apply and in that view of the matter, the learned Special Magistrate could not commit the case for trial to the Court of Sessions. I have given my anxious consideration to the facts and circumstances of the case. As already indicated earlier, the Court of Special Magistrate having been created for the trial of this opium smuggling case, the learned Special Magistrate had already taken cognisance of the case and had also started trial inasmuch as he recorded the plea of guilty of two co-accused persons, namely, V. Ram and Madan Lal and decided their case in his capacity as Special Magistrate. When accused D.M. Raman, Kedar Nath and Mohan Lal turned approvers, the learned Special Magistrate tendered pardon to these accused persons and recorded their statements on oath. Since the aforesaid three accused persons had accepted a tender of pardon and had been examined on oath by the learned Special Magistrate, the accused persons/opposite-parties were committed for trial to the Court of Sessions after the learned Special Magistrate was satisfied that there were reasonable grounds for believing that the accused persons/opposite-parties had committed the offences aforesaid. Since the impugned order of commitment to the Court of Sessions was passed during trial of the case in the Court of learned Special Magistrate, the provisions of Section 337 (2A), Cr.P.C. (Old) applied to the case and the learned Additional Sessions Judge fell into error of law by assuming that the commitment of the accused persons to the Court of Sessions was made in an inquiry. He further fell into an error when he thought that proviso to Section 484 (2) (a) would apply to the case. Clearly the commitment by the learned Special Magistrate having been made during the trial of the case, the commitment was governed by Section 337 (2A), Cr. P.C, (Old). In this view of the matter, the impugned order of the learned Additional Sessions Judge cannot be sustained in law and has to be set aside.;