SUDHAMAY BASU, J. - (1.) THIS rule is directed against an order dated 19th of February, 1975 passed by the Sessions Judge, Midnapore in Criminal Motion No. 4 of 1975 rejecting the same. The said motion was filed by the complainant against an order dated 23rd of November, 1974 passed earlier by the Judicial Magistrate, 1st Class, Contai, in case No. 305C of 1972 rejecting a prayer to commit the case to the Court of Session.
(2.) IT appears that the petitioner, Ram Chandra Maity filed a complaint egainst the respondents whereupon the S.D.J.M., Contai, took cognizance and directed issue of warrant of arrest against them under Section 467, I.P.C An enquiry under Chapter XVIII of the old Code of Criminal Procedure was pending before the learned Magistrate as an offence under Section 467, I.P.C. was triable exclusively by the court of session under the old Code. After the new Criminal Procedure Code came into force on the 1st of April 1974 the petitioner prayed for committal of this case to a Court of Session. On 23 -11 -1974 the learned Magistrate rejected the prayer and fixed a date namely, 25th of January, 1975 for examination of P.Ws. as under the new Code the offence under Section 467 I.P.C has been made triable by a Magistrate, 1st Class. Against that order the petitioner went up in revision to the learned Sessions Judge who also rejected the motion on contest. It is the said order which is challenged before us. Mr. Sengupta, the learned advocate, appearing in support of the motion submitted that the Indian Penal Code provides for life imprisonment or a sentence up to 10 years of imprisonment for offence under Section 467 I.P.C. but in terms of the schedule to the new Code of Criminal Procedure the offence is no longer triable by a court of session. In terms of the schedule the offence under Section 467 I.P.C. is now triable by a Magistrate having 1st class powers. According to Mr. Sengupta, this introduces an anomaly. The punishment contemplated by the Penal Code, according to him, cannot be enforced by the mechanism provided in the Criminal Procedure Code. A Magistrate having 1st class powers can sentence a person only up to three years and even if the Magistrate makes over the case to a Chief Judicial Magistrate even the latter cannot punish a person with imprisonment for more than seven years. In this situation Mr. Sengupta submitted that the Court might construe the sections in such a way as to maka effective both the provisions.
(3.) HE submitted for this purpose that when an enquiry under Chapter XVIII of the old Code is pending the operation of the provision viz, that an offence under Section 467 of the Penal Code is triable by a Magistrate of 1st Class in the new Code may be suspended So that the offence may continue to be exclusively triable by Sessions Judge as under the old Code of Criminal Procedure, According to him, this would not offend the proviso to Section 484(2)(a) namely, that a pending enquiry under Chapter XVIII of the old Code should be dealt with in accordance with the provisions of the new Code. According to him, if in such cases the new Code is applied the Magistrate has to proceed under Section 209 which makes it incumbent on a Magistrate to commit the case to the Sessions 'when it appears to him that the offence is exclusively triable by the Court of Session'. If the Courts hold that in pending cases the old Criminal Procedure Code will apply with regard to Section 467 i.e., to say if an offence under Section 467 is deemed to be exclusively triable by Sessions in pending cases then proviso to Section 484(2)(a) would not be interfered with.;