BASANTA KUMAR DAS Vs. STATE
LAWS(CAL)-1976-8-38
HIGH COURT OF CALCUTTA
Decided on August 02,1976

BASANTA KUMAR DAS Appellant
VERSUS
STATE Respondents


Referred Judgements :-

P PHILIP VS. DIRECTOR OF ENFORCEMENT NEW DELHI [REFERRED TO]


JUDGEMENT

A.N. Banerjee, J. - (1.)This Rule is for quashing of a proceeding under Sec. 145 of the Code of Criminal Procedure pending in the Court of an Executive Magistrate. On September 8, 1974, the opposite party No. 2 describing himself as an Assistant Registrar, Co -operative Societies, Government of West Bengal, functioning on deputation as the Executive Officer of Dr. B.C. Roy Co -operative Colony Society Ltd. filed an application under Ss. 144, 107/114/173(4) of the Code of Criminal Procedure against the Petitioner and another before the Sub -divisional Magistrate, Barrackpore. On such petition, the learned Magistrate called for the report from the police On February 11, 1974, the learned Magistrate drew up a proceeding under Sec. 145 of the Code of Criminal Procedure directing both the parties to file affidavits, objections, documents, etc., in respect of actual possession of the land concerned. The learned Magistrate also attached disputed land and appointed Officer -in -charge, Baranagore P.S., as Receiver. As against such order of the learned Magistrate a revisional application was moved on behalf of the 2nd parties, but by an order dated April 30, 1974, the learned Additional Sessions Judge rejected it. After the record came back the learned Magistrate recorded an order dated June 1, 1974, directing both the parties to appear on July 9, 1974, for further orders. It appears that on June 1, 1974, the record was put up before Sri T.K. Ganguly, an Executive Magistrate. Evidently Sri Ganguly on that day was doing the file of Sub -divisional Magistrate. On the next day, i.e. July 9, 1947, another Magistrate directed the record to put up before Sri Ganguly. In order to make such an order valid Sri V. Subramanium, Sub -divisional Magistrate, passed an order dated August 16, 1947. By the said order he withdrew the case to his file and transferred it to Sri T.K. Ganguly, an Executive Magistrate, for disposal. Thereafter, certain other petitions were filed before transferee Magistrate and we are not concerned with such petitions for the present. What is now being contended before me is that Sri Subramanium, learned Sub -divisional Executive Magistrate, have had no jurisdiction to withdraw the proceeding to his file and then to transfer it to the file of another Executive Magistrate. It is also being contended that the present transferee Magistrate Sri Ganguly is not competent to dispose of the proceeding.
(2.)Mr. N.C. Banerjee, learned senior Advocate, with Mr. Arun Mukherjee appearing for the Petitioners, contended before me that since the proceeding under Sec. 145 of the Code of Criminal Procedure was pending from before the Code of Criminal Procedure, 1973, came into force, it would be guided and governed by the provisions of the old Code, i.e. Code of Criminal Procedure, 1898 and that as such the Sub -divisional Executive Magistrate had no power to withdraw the proceeding to his file and then to transfer it to an Executive Magistrate for disposal. Similarly, the Executive Magistrate to whom the proceeding was transferred will have no jurisdiction to deal with it. Mr. Banerjee submitted further that in view of the revisional application against the order dated February 11, 1974, drawing up proceeding under Sec. 145 of the Code was rejected by the learned Additional Sessions Judge, he was not pressing his other objections. Mr. Chaitanya Ch. Mukherjee, learned Advocate with Mr. Sisir K. Datta appearing for the added opposite party No. 3, submitted that pending proceeding under Sec. 145 of the Code of Criminal Procedure, 1898, could not either be obliterated or remain in vacuum after introduction of the Code of Criminal Procedure, 1973. According to him, the learned Sub -divisional Executive Magistrate has power under Sec. 411 of the Code of Criminal Procedure, 1973, to withdraw any case from, or recall any case which he had made over to any Magistrate subordinate to him and dispose of such proceeding himself or refer it for disposal to any other Magistrate. Mr. S.K. Palit, learned Advocate appearing for the State, submitted that there was nothing wrong or illegal in the withdrawal of the case to the file of the learned Sub -divisional Magistrate and then in the transfer of it to another Magistrate. It is thus seen that the main point is what will happen to a proceeding under Sec. 145, Code of Criminal Procedure, 1898, pending on April 1, 1974 i.e. on the date the Code of Criminal Procedure, 1973, came into force. Sec. 484 of the new Code repeals the old Code but made provisions relating to pending matters. Thus, Sub -section (2a) of Sec. 484 lays down:
Notwithstanding such repeal, if, immediately before the date on which this Code comes into force, there is any appeal, application, inquiry or investigation pending then, such appeal, application, trial inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898), is in force immediately before such commencement as if this Code had not come into force.

There is a proviso to this sub -section which says that every enquiry under chap. 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. Under Clause (b) of Sub -section (2) of Sec. 484, all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. It is thus apparent from the aforesaid provisions of Sec. 484 that a proceeding under Sec. 145 of the old Code which was pending on the date of the commencement of the new Code will have to be disposed of in accordance with the provisions of the old Code on the footing as if the new Code had not come into force. In a recent case in the Supreme Court a question arose whether a revisional application which was pending before the Sessions Judge when the new Code came into force could be disposed of by the revisional Court in accordance with the provision of Sec. 399(3) of the new Code. The Supreme Court laid down that in view of the provision of Sec. 484(2a) of the new Code Sec. 399(3) of the said Code was not applicable to such pending revisional application and that it would be governed by the provision of old Code: See Philip v/s. Director of Enforcement, New Delhi and Anr. : A.I.R. 1976 S.C. 1185. Now, under the provision of old Code the Sub -divisional Magistrate was competent to withdraw a case to his file and then to transfer it to another Magistrate subordinate to him in accordance with the provisions of either Sec. 192 or Sec. 528 of the old Code. Mr. Banerjee submits that in view of the constitution of the Court as laid down under the new Code there is no Sub -divisional Magistrate or Magistrate of First Class subordinate to him as contemplated under the old Code and that as such the present Sub divisional Magistrate who is an Executive Magistrate cannot take recourse to the provision of old Code in the matter of withdrawal and transfer of a case. I am unable to agree with such contention. A proceeding under Sec. 145 of the old Code can be dealt with by a District Magistrate, Sub -divisional Magistrate or Magistrate of First Class. All Magistrates appointed under Ss. 12, 13 and 14 and all Benches constituted under Sec. 15 of the old Code were subordinate to the District Magistrate who may from time to time make rules or give special orders consistent with the Code as to the distribution of the business amongst such Magistrates or Benches. It was also provided for in Sub -section (2) of Sec. 17 of the old Code that every Magistrate other than Sub -divisional Magistrate and every Bench exercising power of a Sub -divisional Magistrate was also subordinate to the Sub -divisional Magistrate subject, however, to the general control of the District Magistrate. Under Sec. 13(1) the Government may place any Magistrate of the First or Second Class in charge of a sub -division and relieve him of the charge as occasion requires and such Magistrate would be called Sub -divisional Magistrate. Under Sec. 12 of the old Code the Government may appoint as many persons as it thinks fit besides the District Magistrate to be the Magistrate of First, Second or Third Class in any district outside the presidency town. Under Sec. 20 of the new Code in every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. Under Sub -section (4) of Sec. 20 the State Government may place an Executive Magistrate in charge of a sub -division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub -division shall be called the Sub -divisional Magistrate. Therefore, in accordance with the provision of Sub -sections (2a) and (2b) of Sec. 484 of the Code appointment of Sub -divisional Magistrate and appointment of First Class Magistrate under the old Code shall be deemed retrospectively to have been made under the corresponding provisions of the new Code. Therefore, a Sub -divisional Magistrate, a Magistrate of First Class and a Sub -divisional Magistrate appointed by the State Government prior to the coming into force of the new Code, shall be deemed to have been appointed as Executive Magistrate and Sub divisional Magistrate under the corresponding provisions of the new Code. Sub -section (4) of Sec. 3 of the new Code lays down that where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court they shall, subject to the provisions of this Cede, be exercisable by a Judicial Magistrate or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate. Under the provision of this sub -section all matters which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention or would have the effect of sending him for trial before any Court vest in the Judicial Magistrates, under Clause (b) of Sec. 3(4) matters which are administrative or executive in nature and exercisable by an Executive Magistrate. In my view, the words "such as granting of a licence suspension or cancellation of a licence etc. occurring in Clause (b) of Sub -section (4) of Sec. 3 of the new Code are merely illustrative and not exhaustive. That would be apparent on a reference to the provisions of Ss. 107, 133, 144 and 145 of the new Code. Powers under the said Ss. have been conferred upon the Executive Magistrate including the District Magistrate and Sub divisional Magistrate, but such powers do not strictly come within the powers as stated by way of illustration under Clause (b) of Sec. 3(4). Sec. 6 of the old Code classify five groups of Criminal Courts besides High Court and the Court constituted under any law other than the Code for the time being in force. Those were (i) Court of Session (ii) Presidency Magistrate (iii) Magistrate of First Class (iv) Magistrate of Second Class and (v) Magistrate of Third Class. The new Code in the corresponding Sec. 6 refers four kinds of Courts besides High Court and the Courts constituted under any law other than the new Code. Those are (i) Court of Sessions, (ii) Judicial Magistrate of First Class and any Metropolitan Magistrate, (iii) Judicial Magistrate of 2nd Class and (iv) Executive Magistrate. Under Sec. 23 of the new Code every Executive Magistrate exercises power of any sub -division would be subordinate to the Sub -divisional Magistrate subject, however, to the general control of the District Magistrate. A reading of all these section, together along with the provisions as contained in Sec. 484 and Sec. 5 of the new Code will make it clear that the procedure to be followed in a proceeding under Sec. 145 of the Code which was pending on the date the new Code came into force will be guided by the provisions of old Code and that there can be no bar to the Sub divisional Magistrate to withdraw a case to his file and then to transfer to the file of another Magistrate subordinate to him in accordance with the provisions of the old Code. In this connection special reference may be made to Sec. 5 of the new Code. It runs as follows:

Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Section 5 and Sec. 484 of the new Code taken together would give jurisdiction to the Sub -divisional Magistrate to withdraw a case under Sec. 145 and then to transfer it to a Magistrate subordinate to him in accordance with the provision of old Code if such proceeding was pending on the date of the commencement of the new Code. In this view of the matter, I do not think that the Sub -divisional Magistrate, Barrackpore, have had no jurisdiction to withdraw the present case to his file and then to transfer it to a Magistrate subordinate to him. There can be no manner of doubt that the Magistrate to whom the case was transferred was enjoying the powers of a First Class Magistrate prior to the coming into force of the new Code. Accordingly, I find that there is no substance in the objection raised by the Petitioners.

(3.)In the result, the Rule is discharged. Let the records go down immediately.
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