DURGAPADA CHAKRABORTY Vs. STATE
HIGH COURT OF CALCUTTA
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(1.)THIS rule relates to an order dated the 17th of december, 1974 passed by the Judicial Magistrate, Midnapore in G. P. Case No. 2423 of 1973 arising out of Narayan Gar P. S. Case No. 9 dated the 8. 10. 1973.
(2.)ALLEGATION against the accused persons are that they assembled unlawfully, armed with lathis and forcibly entered into the grocery shop of the complainant's brother Birendra Mahapatra and assaulted him and other persons named as witnesses in the charge sheet with lathis causing injuries and looked property valued at Rs. 2000/ -. On the basis of written report the Police made investigation and later on submitted charge sheet to the learned Magistrate under Section 147/445/427/323/380 T. P. C. An application was made by the complainant dated 9. 10. 74 and another by A. P. P. dated the 3. 12. 74 for committing the accused to the court of Sessions by framing charges under section 395 I. P. C. The learned Judicial Magistrate perused the F. I. R. , the statements under section 161 Cr. P. O. heard the learned lawyers and, inter alia, held that he found, prima facie, grounds for framing charges under section 395 I. P. C. against the accused but "evidence of P. W. s was to be taken as provided in chapter XVIII of the Code of Criminal Procedure Code (Old)" before any order under section 207 (6) was passed. He fixed 18. 1. 75 for committal enquiry. The prosecution was asked to produce witnesses on the date fixed. The said part of the impugned order is challenged before this court.
(3.)MR. Banerjee, learned advocate, appearing in support of the rule argued that the learned Magistrate was not justified on the basis of the records to come to a decision for proceeding under chapter XVIII of the Code of Criminal Procedure. According to him, the learned Magistrate could not consider any charge graver than 380 I. P. C. which was mentioned in the charge sheet. But in course of argument at the bar a new point emerged for consideration of this Court viz. , whether the new or the old Criminal Procedure Code was to be followed for the committal enquiry. It must be noted, however, in fairness to Mr. Banerjee that after the hearing commenced he said that he was prepared to withdraw the petition and not press the same as the question of appropriate procedure was not important from the point of view of his client. But when Mr. Roy pointed out that the procedure proposed to be adopted by the learned Magistrate was clearly wrong Mr. Banerjee joined issue and advanced arguments on behalf of his client. As is well known the new Criminal Procedure code of 1974 came into existence on the 1st of April, 1974. The impugned order passed in December, 1974 was passed long after the said date. The trial, of course had commenced under the old Code. Under section 484 of the new Code of Criminal Procedure a pending trial is to be disposed of in accordance with the provision of the Code of Criminal procedure, 1898. Mr. Banerjee contended that the procedure adopted by the learned Judicial Magistrate was correct. As the old Code applied for pending trial the learned Magistrate has to proceed under chapter XVIII of the old Code if he is to embark on an enquiry for committal.
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