Decided on June 06,1976

STATE Appellant
Bikash Ch. Majumdar Respondents


H.N.SEN, J. - (1.)THIS is a reference under Section 395(2) Cr. P.C. by Sri S. C, Mazumdar, Chief Metropolitan Magistrate, Calcutta, in connection with G. R. Case No. 123/1974.
(2.)THE facts leading to the reference of the case may be, briefly stated, as follows: The aforesaid G. R. Case was started on a Police Report in which ultimately charge -sheet was submitted against the accused under Sections 420, 467/471, I.P.C. on 6 -2 -1974. It was pending before a Metropolitan Magistrate for committal enquiry on l -4 -1974, the date of commencement of the new Code. Following the provisions laid down in the proviso to the Section 484(2)(a) of the new Code the case was committed to the City Sessions Court by order dated 22 -4 -1974. The learned Judge, City Sessions Court, however, referred back the case to the Chief Metropolitan Magistrate under Section 228(1), Criminal Procedure Code after framing charges under Sections 420, 467, 468 and 471, Indian Penal Code.
The learned Chief Metropolitan Magistrate, Calcutta felt that the referring back of the case was fraught, with difficulties because a situation might arise when imposition of adequate punishment would not be possible for the Chief Metropolitan Magistrate within the powers laid down in Section 29 of the new Code and when Section 325 of the new Code did not provide as to what the Chief Metropolitan Magistrate would do if the punishment called for exceeded 7 years. In the opinion of the learned. Chief. Metropolitan Magistrate Section 323 of the new Code could not be resorted to as it did not mention Chief Metropolitan Magistrate. As such he has opined that Section 26 of the Code should be availed of and the case should be directed for trial before the Court of Session.

(3.)MR . Prasun Chandra Ghosh appearing for the State justified the order of the Sessions Judge referring back the case to the Chief Metropolitan Magistrate and he admitted that the difficulties felt by the learned Chief Metropolitan Magistrate were more imaginary than real and should any situation arise during trial before the Chief Metropolitan Magistrate recourse may be taken to the provisions laid down in Section 323 of the New Code for commitment to the Court of Session for imposition of adequate punishment.

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