Pritam Singh Pattar, J. - (1.) THIS is a reference made by Shri R.L. Lamba, Additional Sessions Judge, Hissar, under Section 395(2) of the Code of Criminal Procedure, 1973, for decision on points of law mentioned in his order dated 16th May, 1975.
(2.) THE facts of this case are that Phula accused was arrested by the police of Police Station, Rania, Tehsil and District Sirsa, in case First Information Report No. 236 registered under Sections 337 and 324, Indian Penal Code, and Section 27 of the Indian Arms Act. It is alleged that on 10th October, 1973, Kishan, Baj Singh and Phula accused, residents of Ferozabad, were taking liquor at the house of Kishan. At about 2 P.M., when they were taking meals there was an altercation between Kishan and Phula accused and they exchanged fist blows and slapped each other. Kishan accused out of fear entered the house of Resham Singh complainant. Phula accused followed him having a licensed gun in his hand. He abused Resham Singh to turn out Kishan from his house. He also fired a shot from the gun and some of the pellets struck on the right arm of Resham Singh. On the report made by Resham Singh, this case was registered. After the investigation of the case, Phula accused was challaned under Sections 337 and 324, Indian Penal Code, and Section 27 of the Arms Act. The counsel for the accused contended before the Judicial Magistrate, 1st Class, Sirsa, that after the coming into force of the Code of Criminal Procedure, 1973, with effect from 1st April, 1974, the offence under Section 27, Arms Act, has also become exclusively triable by the Judicial Magistrate and, therefore, this case should be tried by that Court. The challan in this case was filed in his Court on 20th March, 1974, and admittedly at that time the offence under Section 27 of the Arms Act was exclusively triable by the Court of Session. After hearing the counsel for the parties, the Judicial Magistrate, 1st Class, Sirsa, held in his order dated 18th May, 1974, that the offence under Section 27 of the Indian Arms Act was exclusively triable by the Court of Session and, therefore, in view of the provisions of Section 209 read with Section 484(2) of the Code of Criminal Procedure, 1973, he committed Phula accused to stand his trial in the Court of Session under Sections 324 and 337, Indian Penal Code, and Section 27 of the Arms Act. When the case came up for framing of charges before Shri R.L.I (sic) Sessions Judge, Hissar, an objection was raised by the Public Prosecutor that the case may be sent back to the Court of the Judicial Magistrate as all the offences were exclusively triable by him. The counsel for the accused, however, contested this objection. After hearing the counsel for the parties, the Additional Sessions Judge came to the conclusion that there are no specific provisions in the new Code of Criminal Procedure for quashing the order of commitment of the case and in his opinion the order of commitment was not proper but since there was no authoritative pronouncement on the point of law involved in the case, he referred the following questions of law for decision of the High Court under Section 395(2), Criminal Procedure Code: (1) Whether, in the particular facts of the case, the commitment of the case to the Court of Sessions is valid or invalid. (2) Whether the Judicial Magistrate, 1st Class, would commit any irregularity or illegality if, instead of committing the case he decides to frame the charges, and to try the accused for the offence under Section 27, Arms Act, which he is now competent to try under the New Code? (3) Whether the Court of Session should record a formal declaration that the commitment of the case is illegal, when the commitment is not in accordance with law for the reasons stated before? (4) Whether the Court of Session can ignore the illegal commitment and return the case to the Judicial Magistrate, 1st Class, with a direction that he should frame the charges and try the accused himself? (5) Whether the views expressed in this order; are in accordance with the new Code or not? Notices were given to the counsel for the State and also to the counsel for Phula accused and arguments have been heard.
(3.) ADMITTEDLY , the offences under Section 337 and 324, Indian ' Penal Code, are exclusively triable by a Judicial Magistrate, 1st Class. It is undisputed that before the coming into force of the new Code of Criminal Procedure, 1973, with effect from 1st April, 1974, the offence under Section 27 of the Arms Act was exclusively triable by the Court of Session. However, after the coming into force of new Code of Criminal Procedure, the offence under Section 27 of the Arms Act is how triable by a Judicial Magistrate, 1st Class. The challan in this case was filed against the accused in the Court of the Judicial Magistrate, 1st Class, Sirsa, on 20th March, 1974. I set out below the provisions of the Code of Criminal Procedure, which are relevant for the decision of this case: Section 484 (1)........ (2) Notwithstanding such repeal, - - (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial inquiry or investigation pending, then, such appeal, application, trial, injury 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, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force: 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. Section 209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - - (a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.;