BIMAL KUMAR CHANDRA Vs. STATE
LAWS(CAL)-1976-6-31
HIGH COURT OF CALCUTTA
Decided on June 23,1976

Bimal Kumar Chandra Appellant
VERSUS
STATE Respondents


Referred Judgements :-

B.N. AGARWALA V. STATE [REFERRED TO]
ANANT COPAL SHEOREY VS. STATE OF BOMBAY [REFERRED TO]
JAMUNA SINGLI VS. BHADAI SHAH [REFERRED TO]
DAYAWATI VS. INDERJIT [REFERRED TO]
NANI GOPAL MITRA VS. STATE OF BIHAR [REFERRED TO]
JINDAL OIL MILLS SOMALAL NATHJI VS. GODHRA ELECTRICITY COMPANY LIMITED [REFERRED TO]
SARDAR VS. STATE [REFERRED TO]



Cited Judgements :-

MUKHTAR ALI VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1998-7-70] [REFERRED TO]


JUDGEMENT

P.K.CHANDA, J. - (1.)THE Rule, in Criminal Revision No. 531 of 1975 has been issued at the instance of four petitioners, namely, Bimal, Swapan, Shyamal and Nimai to show cause why the order No. 1 dated 8 -5 -75 by the learned Additional Sessions Judge, Alipore, fifth court in sessions trial No. 3 of May, 1975 and order dated February 10, 1975 by the learned Magistrate, Alipore, in G. R. Case No. 3155 of 1971 should not be set aside.
(2.)APART from the controversy raised in this reviskmal application another revisional application has been filed by Biswanath Mondal alias Bishu and that has given rise to Criminal Revision No. 908 of 1975 against the self -same orders. Additional ground taken in this application is that the learned Additional Sessions Judge acted illegally in appointing a lawyer of his own choice for the petitioner's defence at the State expenses. Both the revisional applications were filed after the Criminal Procedure Code, 1973 came into operation.
By the order dated 10 -2 -75, the learned Magistrate has committed the petitioners before us to stand their trial under Sections 148, 302/149 and 307/149, I.P.C. It is alleged by the petitioners that the learned Magistrate acted illegally and wrongfully in committing the petitioners to the court of session under Section 209 of the New Criminal Procedure Code without recording any evidence. In developing this contention the endeavour of Mr. Mukherjee appearing on behalf of the petitioners was to impress upon us that the proviso to Section 484(2) of the Criminal Procedure Code of 1973 (Act II of 1974) could not take away the petitioners' right and privilege under the old Act to the effect that the prosecution witnesses of the alleged occurrence were to be examined before the petitioners' commitment to the Court of Session. It appears that Mr. Mukherjee while raising this contention had in his mind Kirpal Singh's case reported in : 1965CriLJ636 where the Supreme Court observed that in inquiries of serious offence like murder, normally the Magistrate should insist upon examination of the principal witness to the actual commission of offence. The Supreme Court did not rest there. It added that failure to examine such witness may be justified in exceptional cases. Mr. Mukherjee has further urged that his clients had also the right of discharge in the court of the Magistrate under the old Criminal Procedure Code and this right being a valued right could not be taken away by the plea of procedural amendment. In other words, his contention is that where rights and procedures are dealt with together, the procedural amendment affects rights also. There was no scope on the part of Mr. Mukherjee to challenge the constitutionality of the proviso to Section 484(2) of the said Code under Article 14 in view of the fact that the operation of Article 14 of the Constitution has been suspended.

(3.)THE first information report on the. basis of which investigation started was lodged on August 10, 1971. In other words, investigation commenced and charge -sheet was submitted when the old Act was in force but the commitment procedure was neither adopted nor completed under that Act. After the new Act came into force the learned Magistrate in view of the proviso to Section 484(2) of the new Code committed the petitioners to the court of session without recording evidence and framing charge. The proviso to Section 484(2) of the said Code lays down: Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.
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