Full Judgment Text
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PETITIONER:
P. C. GULATI
Vs.
RESPONDENT:
LAJYA RAM KAPUR AND OTHERS
DATE OF JUDGMENT:
19/08/1965
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SARKAR, A.K.
RAMASWAMI, V.
CITATION:
1966 AIR 595 1966 SCR (1) 560
ACT:
Code of Criminal Procedure, 1898 (5 of 1898), s. 526 (ii)-
Transfer of case from Magistrate’s court to Sessions-Power
of High Court.
HEADNOTE:
When s. 193 of the Code of Criminal Procedure prohibits the
Court of Session, from taking "cognizance of any offence as
a court of original jurisdiction" unless the accused is
committed to it by a Magistrate or there is any other
express provision of the Code, on the question whether the
High Court is competent under s. 526(1)(ii) of the Code to
transfer a case from the Court of a Magistrate to the Court
of a Sessions Judge,
HELD : (Per Sarkar & Dayal, JJ.) The High Court is
competent.
Cognizance of an offence as a court of original jurisdiction
means the initiation of proceedings for the first time in a
court and not in a subsequent inquiry or trial necessary for
the disposal of the case. When a case is committed to the
Court of Sessions, it proceeds with the trial of the case
only when it considers the commitment good in law. It is in
this context that Sessions Court has to take ’cognizance’ of
the offence as a court or original jurisdiction and it is
such cognizance that is referred to in s. 193. The
provisions of the various sections in Part B of Chapter XV
of the Code dealing with initiation of proceedings also make
out the difference between the taking of cognizance of a
case and the subsequent inquiry and trial of the offences of
which cognizance has been LA-en. 1567 B, C, D; 568 Al
There are no reasons which could have induced the
legislature to contemplate tile limiting of cl. (ii), of
sub-s. (1) of s. 526 to the transfer of cages from the court
of a Magistrate to the court of any other Magistrate of
equal or superior jurisdiction. Further, when under the
Code the High Court is competent to transfer a case from the
court of a Magistrate to itself and try it would be
incongruous to bold that the High Court is not competent to
Transfer a case to the Court of Sessions. [568 D-E]
The omission to provide specifically the procedure to be
followed in the trial of a case transferred to the Court of
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Sessions by the High Court in the exercise of its powers
under s. 526 of the Code will not make the transfer illegal,
when the language of cl. (ii) of sub-s. (1) confers the
power on the High Court of transferring a case from the
Court of a Magistrate to a Court of superior jurisdiction.
There is no difficulty in the Court of Sessions trying the
case transferred to it in accordance with the provision of
Ch. XXIII which deals with the procedure of trial& before
the High Courts and Courts of Sessions. The Court of
Session.-, has to follow the procedure laid down in this
Chapter so far as that be applicable to the cases to be
tried by it. The special procedure laid down for particular
type of cases and proceedings will be followed in those
cases as special provisions over-ride general Provisions of
Chapter XXIII. [563 F; 564 C--E]
Section 193, therefore, does not bar further proceedings by
the Court of Sessions in a case transferred to it by the
High Court. [568 C]
561
Per Ramaswami, J. (Dissenting) : The High Court has no power
to transfer a case from the Court of a Magistrate to the
Court of Sessions without a proper commitment having been
made. [573 C-D]
While s. 526(2) is an express provision with regard to the
trial of the case transferred by the High Court to itself
from any other criminal court other than the court of a
Presidency Magistrate, section 526 does not expressly
provide for the procedure to be followed by a Sessions Judge
it, a case transferred to it by the High Court. it follows,
therefore, that the legislature has not enacted any express
provision to the control within the meaning of s. 193(1).
[571 E-F]
The language of s. 526(1) (ii) cannot be read in isolation
and cannot be given effect to without regard to the
mandatory provisions of s. 193. The powers of transfer
given to the High Court under s. 526(1)(ii) must be
interpreted as not to conflict with the language of s. 193.
[578 A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 86
and 88 of 1965.
Appeals by special leave from the judgment and order dated
March 13, 1964 of the Punjab High Court (Circuit Bench)
at Delhi in Criminal Revision No. 30-D of 1964 and Criminal
Misc. ....No. 63-D of 1964.
S.N. Andley, Rameshwar Nath and Mahinder Narain, for the
appellants (in all the appeals).
Ram Lal Anand, and J. B. Dadachanji, for respondents Nos. 1
and 2 (in all the appeals).
R.N. Sachthey, for respondent No. 3. (in all the
appeals).
The Judgment of Sarkar and Raghubar Dayal, JJ. was delivered
by Dayal J. Ramaswami, J. delivered a dissenting Opinion.
Ragubhar Dayal, J. The sole question which determines these
appeals is whether the High Court can transfer a case
pending in the Court of a Magistrate to the Court of the
Additional Session Judge.
It is urged for the appellant, who had actually moved for
the transfer of the case, that the High Court has no such
power. The respondents contend that the High Court has such
power.
Chapter XLIV of the Code of Criminal Procedure, hereinafter
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called the Code. deals with transfer of criminal cases.
Section 526, in that Chapter, empowers the High Court to
pass the following orders whenever it is made to appear to
the High Court that the requirements of either of clauses
(a) to (e) of sub-s. (1) hereof exists
562
"(i) that any offence be inquired into or
tried by any Court not empowered under ss. 177
to 184 (both inclusive), but in other respects
competent to inquire into or try such offence;
(ii)that any particular case or appeal, or
class of cases orappeals, be transferred
from a Criminal Court subordinate toits
authority to any other such Criminal Court of
equal or superior jurisdiction;
(iii) that any particular case or appeal be
transferred to and...tried before itself; or
(iv) that an accused person be committed for
trial to itself or to a Court of Session."
The language of clause (ii) is wide enough to
provide for an order transferring a case from
the Court of a Magistrate to a Court of
Session as both the Courts, are subordinate to
the High Court and the Court of Session is a
Court superior in jurisdiction to that of a
Magistrate.
Reference may be made to s. 6 which reads
"Besides the High Courts and the Courts
constituted under any law other than this Code
for the time being in force, there shall be,
five classes of Criminal Courts in India,
namely --
I.-Courts of Session;
II.-Presidency Magistrates;
III.-Magistrates of the first class;
IV.-Magistrates of the second class;
V.-Magistrates of the third class;
It is clear that the Courts are mentioned in the order of
their superiority in respect of jurisdiction. It is not
urged for the appellant that the language of cl. (ii) if
sub-s. (1) of s. 526 does not give power to the High Court
to transfer the case from a Court of a Magistrate to that of
a Sessions Judge. What is urged for the appellant is that
the provisions of sub-cl. (ii) should be so construed as to
limit its provisions to the transfer of cases from the Court
of a Magistrate to another Court of a Magistrate, as
otherwise there would be difficulties in the trial of the
case by the Sessions Court when it is transferred to it from
-the Court of a Magistrate.
563
The first difficulty urged is that s. 193 of the Code inter
alia provides that except as otherwise expressly provided by
the Code on by other law for the time being in force, no
Court of Session shall take cognizance of any offence as a
court of original jurisdiction unless the accused has been
committed to it by a Magistrate duly empowered in that
behalf; that there is no express provision in the Code which
empowers the Court of Session to take cognizance of the case
as a Court of original jurisdiction when it be transferred
to it by a High Court and that therefore the Court of
Session is incompetent to take cognizance of such a case and
try it.
Another difficulty suggested is that neither s. 526 nor any
Other provision of the Code provides for the procedure to
be, followed by the Sessions Judge in the trial of the case
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transferred to it by a High Court and that the procedure
laid down for the trial of a case by the Court of Session
will not be suitable for the trial of the transferred case
as s. 271 of the Code requires the Court of Session to
commence the trial by reading the charge, a charge which
according to other provisions of the Code is to be framed by
the Magistrate who commits the case.
We do not consider any of these contemplated difficulties in
the trial of the transferred, case by the Court of Session
to be of any significance.
We may deal with the second contention first. The omission
to provide specifically the procedure to be followed in the
trial of a case transferred to the Court of Session by the
High Court in, the exercise of its powers under s. 526 of
the Code will not make the transfer illegal, when the
language of cl. (ii) of sub-s. (1) confers the power on the
High Court of transferring a case from the Court of a
Magistrate to the Court of superior jurisdiction, which a
Court of Session is. Support for this contention was
sought, for the appellant, from sub-s. (2) of s. 526 which
provides that when the High Court withdraws for trial before
itself any case from any Court other than a Court of a
Presidency Magistrate, it shall, except as provided for in
s. 267, observe in such trial the same procedure which that
Court would have observed if the case had not been so
withdrawn. If the withdrawal of the case is equivalent to
the transfer of a case in exercise of powers conferred by
cl. (iii) which empowers the High Court to order any
particular case to be transferred to and tried before
itself, the provision of sub-s. (2), though providing for
the procedure to be followed by the High Court in the trial
of cases withdrawn from
564
the Court of a Magistrate other than a Presidency Magistrate
does not provide for the procedure to be followed by the
High Court when it withdraws the case from the Court of a
Presidency Magistrate. It is clear therefore that the mere
omission of the procedure to try a case withdrawn from the
Court of a Presidency Magistrate does not mean that the High
Court cannot withdraw a case from his Court in view of the
clear words of cl. (iii).
There is no difficulty in our opinion in the Court of
Session trying the case transferred to it in accordance with
the provisions of Chapter XXIII which deals with the
procedure of trials before High Courts and Courts of
Session. The Court of Session has to follow the procedure
laid down in this Chapter so far as that be applicable to
the cases to be tried by it. This is clear not only from
the heading of the Chapter but also from the provisions of
s. 268 which require all trials before, a Court of Session
to be either by jury or by the Judge himself, and of s. 270
which require the Public Prosecutor to conduct the
prosecution in every trial before a Court of Session. Of
course, special procedure laid down for particular type of
cases and proceedings will be, followed in those cases as
special provisions over-ride general provisions ,of Chapter
XXIII. Such special provisions are to be found in ss.
198B(5), 481. and 485A of the Code.
Section 271 provides that when the Court. is ready to com-
mence the trial, the accused shall appear or be brought
before it, and the charge shall be read out in Court and
explained to him, and he shall be asked whether he is guilty
of the offence charged, ,or claims to be tried. It does not
say that the charge to be read must be the charge framed by
the Magistrate who commit,; the case. It is the Sessions
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Judge who is to read out the charge, on which the accused is
to be tried by him. It may be that in the cases committed
to the Court of Session, the Sessions Judge mostly reads the
same charge which has been framed by the Magistrate. It is
however open to him to reframe the charge and read out the
charge as framed by him. In Practice the Session Court does
amend and add to the charge before proceeding with such
cases and it is the charge as amended by him which is read
out to the accused, the whole object of the charge being
that the accused should know what offences he has to meet at
the trial. The Sessions Judge can follow a similar
procedure when a case is transferred to his Court after the
Magistrate has framed the charge. ’When the Magistrate has
not framed a charge, the Sessions Judge can do so on the
basis of the prosecution allegations.
565
The other procedure for the trial of the accused is what is
to be normally followed in the trial of warrant cases, and
is laid down in ss. 286 to 292 and ss. 309 to 311. In
certain cases the provisions of s. 287 and 288 cannot
however be complied with in the trial of cases transferred
to the Court of Session by the High Court if the accused has
not been examined by the Committing Magistrate and if no
evidence is recorded by him. Such a contingency can arise
in the trial of cases committed by a Magistrate in pursuance
of the provisions of s. 207A as it is not incumbent on him
to examine any witness or the accused before committing him
to the Court of Session : Shri Ram v. State of Maharashtra
(1).
The provisions of s. 291 which refer to the summoning of
witnesses for the accused may create a difficulty inasmuch
as the accused is not given the right to have any witness
summoned except as provided in ss. 207A, 211 and 231. The
difficulty would be more theoretical than practical, as no
Court will think of not affording an opportunity to the
accused to summon defence evidence when in view of the
transfer of the case by the High Court the accused could not
comply with such provisions which require him in commitment
proceedings to give a list of witnesses in the Court of the
Committing Magistrate.
We therefore do not consider that there arises any
difficulty in the trial of the accused by the Court of
Session in a case transferred to it by the High Court from
the Court of a Magistrate.
We may now deal with the first objection which is really the
main objection of the appellant about the trial of the case
by a Sessions Judge on its being transferred to him by the
High Court. Section 193 of the Code prohibits the Court of
Session to take cognizance of any offence as a Court of
original jurisdiction unless the accused is committed to it
by a Magistrate or there is any other express provision in
the Act. Such express provisions, according to the
appellant, are to be found in a few sections of the Code.
Section 198B empowers the Court of Session to take
cognizance of an offence under s. 500 I.P.C. on a complaint
of the Public Prosecutor without the case being committed to
it for trial.
Section 480 empowers any Civil, Criminal or Revenue Court
to take cognizance of the offences mentioned in that
section and s. 485A empowers a Criminal Court to take
cognizance of the offence committed by a witness on account
of his non-attendance in obedience to a summons. It is to
be noticed that ss. 408 and 485A
(1) A. I. R. 1961 S. C. 674.
566
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do not specifically mention the Court of Session, but these
provisions can be availed of by that Court in view of the
expression ’criminal Court’ being wide enough to include a
Court of Session.
Reference was also made to ss. 437 and 478, but they speak
of commitment of the accused to the Court of Session in
certain circumstances.
Section 193 and the other sections of the Code refer to the
taking of cognizance of an offence by the Court of Session.
The question is what amounts to the taking of cognizance of
an offence by a Court and whether the Court of Session’s
proceeding with a case transferred to it by the High Court,
amounts to its taking cognizance of the offence under trial
in the case.
Chapter XV of the Code deals with jurisdiction of criminal
Courts in inquiries and trials. Part A consisting of ss.
177 to 189 deals with the place of inquiry or trial. These
sections deal with the territorial jurisdiction of various
Courts to enquire into, or try offences. Part B deals with
the conditions requisite for initiation of proceedings and
therefore with the conditions governing the power of a Court
to commence, for the first time, proceedings in connection
with offences about which the party aggrieved or the State
desires to take action. Part B of Chapter XV consists of
ss. 190 to 199B.
In R. R. Chari v. The State of Uttar Pradesh (1) this Court
approved of the following observations of Das Gupta J., in
Remembrancer of Legal Affairs, West Bengal v. Abani Kumar
Bannerjee (2) :
"What is taking cognizance has not been
defined in the Criminal Procedure Code and I
have no desire to attempt to define it. It
seems to me clear however that before it can
be said that any magistrate has taken cogni-
zance of any offence under section 190(1) (a),
Criminal Procedure Code, he must not only have
applied his mind to the contents of the
petition but he must have done so for the
purpose of proceeding in a particular way as
indicated in the subsequent provisions of this
Chapter-proceeding under section 200 and
thereafter sending it for inquiry and report
under section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections of
this Chapter, but for taking action of some
other kind, e.g.,
(1) [1951] S.C.R. 312.
(2) A. 1. R. 1950 Cal. 437.
567
ordering investigation under section 156(3),
or issuing a search warrant for the purpose of
the investigation, he cannot be said to have
taken cognizance of the offence."
When the Sessions Court receives a case on transfer by the
High Court it is not to consider whether it should proceed
or not with the case. It has to proceed with the case as it
has been transferred to it by the High Court. ’Mere is
therefore no occasion for the Court of Session to take
cognizance of the offence in the sense that it has to
determine whether the proceeding should be initiated in
connection with the offence or not. The proceedings have
been already initiated by the Magistrate and have been
simply transferred to it. It has simply to proceed with the
inquiry or trial as the case may be as the case has been
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made over to it by the High Court.
A consideration of the provisions of the various sections in
Part B of Chapter XV of the Code dealing with initiation of
proceedings also makes out the difference between the taking
of cognizance of a case and the subsequent inquiry and trial
of the offences of which cognizance has been taken. Section
190 provides that Magistrates can take cognizance of a case
in either of the three ways mentioned in sub-s. (1).
Section 191 provides for the transfer or commitment of the
case in which the Magistrate has taken cognizance of the
offence under sub-s. (1) (c) of s. 190, i.e., on information
received from any person other than a police officer or upon
his own knowledge or suspicion that an offence has been
committed, if the accused objects to being tried by that
Magistrate. The provisions of this section make a
distinction between the taking of cognizance of an offence
and its subsequent trial by that Magistrate or by another
Court. Similarly, s. 192 provides for the transfer of a
case, of which the Magistrates mentioned in the section have
taken cognizance for inquiry or trial, to another Magistrate
subordinate to the particular Magistrate. The language
indicates that the Magistrate to whom the case is to be
transferred has not to take cognizance of the case afresh
but has simply to proceed with the inquiry or trial of the
case. Section 193 is the section which we have considered
and, in the context of the various sections, the taking of
cognizance of an offence as a Court of original jurisdiction
must amount to the initiation of the proceedings for the
first time in a Court and not in the subsequent enquiry or
trial necessary for the disposal of the case. The other
sections in this Part simply provide restrictions for the
taking of cognizance of offences in certain circumstances.
L7Sup./ 65-8
568
When a case is committed to the Court of Session, the Court
of Session has first to determine whether the commitment of
the case is proper. If it be of opinion that the
commitment is bad on a point of law, it has to refer the
case to the High Court which is competent to quash the
proceeding under s. 215 of the Code. It is only when the
Sessions Court considers the commitment to be good in law
that it proceeds with the trial of the case. It is in this
context that the Sessions Court has to take cognizance of
the offence as a Court of original jurisdiction and it is
such a cognizance which is referred to in s. 193.
We are therefore of opinion that the further proceedings by
the Court of Session in a case transferred to it by the High
Court are not barred by S. 193 of the Code.
Further it would be incongruous if the High Court be com-
petent to transfer a case from the Court of a Magistrate to
itself and try it but it be not competent to transfer a case
to the Court of Session. There does not appear to be any
reason which would have induced the legislature to
contemplate the application of cl. (ii) of sub-s. (1) of S.
526 to the transfer of cases from the Court of a Magistrate
to the Court of any other Magistrate of equal or superior
jurisdiction and not to the Court of Session. Clause (iv)
expressly mentions the power of the High Court to order com-
mitment of an accused person for trial to itself or to a
Court of Session. Such an order can however be passed only
when the proceedings in the Court of the Magistrate have
reached that stage when it be possible for the High Court to
direct the committal of the accused to the Court of Session
or to itself. An order for the commitment of the accused
cannot be passed at any earlier stage while the transfer of
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a case can be made at any stage at which the case may be
when transfer is sought.
Lastly, reference may be made to s. 527 of the Code which
empowers the Supreme Court to direct that any particular
case or appeal be transferred from one High Court to another
High Court or from a criminal Court subordinate to one High
Court to another Criminal Court of equal or superior
jurisdiction subordinate to another High Court. The
language of the section empowers this Court to transfer a
case from the Court of a Magistrate tinder one High Court to
a Court of another Magistrate of equal or superior
jurisdiction, or to a Court of Session, subordinate to
another High Court. This Court actually transferred one
case from the Court of a Magistrate to the Court of an
Additional Sessions Judge as is clear from the judgment of
569
this Court in Harbajan Singh v. State(1). It may also be
mentioned that there is nothing in s. 527 about the
procedure which the transferee Court has to adopt for the
further progress of the case. Sub-s. (3) of s. 527 simply
gives an option to the transferee Court to act on the
evidence already recorded or partly so recorded and partly
recorded by itself or to resummon witnesses and recommence
the inquiry or trial.
We are therefore of opinion that the High Court is competent
under s. 526 ( 1 ) (ii) of the Code to transfer a case from
the Court of a Magistrate to the Court of the Sessions
Judge.
The order under appeal in Cr. A. 88 of 1965 dated March 13,
1964, transferring the case to the Court of the Additional
Sessions Judge is therefore correct. We therefore dismiss
this appeal. Cr. A. 86 of 1965 is also against the order of
the High Court dated March 13, 1964 allowing the revision
against the order of the Sessions Judge refusing to transfer
the case from the Court of the Magistrate. That order being
correct, we dismiss Cr. A. 86 of 1965.
Cr. A. 87 of 1965 is against the order of the High Court
refusing to review its order of transfer dated March 13,
1964. That appeal is therefore dismissed as infructuous.
Ramaswami, J. I regret that I do not agree to the judgment
pronounced by my learned brother Dayal, J.
The appellant, P. C. Gulati filed a criminal complaint under
s. 500, Indian Penal Code against the respondents Lajya Ram
Kapur and Diwan Chand Kapur in the Court of the Sub
Divisional Magistrate, New Delhi. Later on, the appellant
made an application under s. 528, Criminal Procedure Code to
the Sessions Judge praying for the transfer of the case from
the Court of the Sub Divisional Magistrate to another Court
of competent jurisdiction, but the application was
dismissed. The appellant thereafter filed a Revision
Petition, Criminal Revision no. 30-D/64 in the Circuit Bench
of the Punjab High Court against the order of the Sessions,
Judge refusing transfer of the case. The appellant also
filed an application, Criminal Miscellaneous 63-D of 1964
under s. 526, of the Criminal Procedure Code in the Circuit
Bench of the Punjab, High Court for transfer of the case.
On March 13, 1964 the learned Chief Justice of the High
Court allowed the Revision Petition and also the application
under s. 526 of the Criminal Procedure Code and transferred
the Criminal case to the Court of Sri
(1) [1965] 3 S.C.R. 535.
570
P. N. Thukral, Additional Sessions Judge, Delhi for
disposal. The appellant then realised that the Additional
Sessions Judge, Delhi had no jurisdiction to try and dispose
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of the Criminal Petition in view of the provisions of s. 193
(1 ) of the Criminal Procedure Code and therefore applied to
the Punjab High Court under s. 561-A of the Criminal
Procedure Code praying that the Criminal complaint may be
transferred to a Magistrate of competent jurisdiction. This
application was dismissed by the learned Chief Justice of
the Punjab High Court on March 12, 1965 on the ground that
the High Court had no power to review its previous order.
Criminal Appeals 86 & 88 of 1965 are brought, by special
leave, against the order of the learned Chief Justice,
Punjab High Court dated March 13, 1964 in Criminal Revision
no. 30-D/64 and Criminal Miscellaneous 63-D of 1964
transferring the complaint to the Court of the Additional
Sessions Judge, Delhi for disposal. Criminal appeal no. 87
of 1965 is brought, by special leave, against the order of
the learned Chief Justice, Punjab High Court dated March 12,
1965 refusing -to review his previous order dated March 13,
1964.
The first question arising for determination in this case is
-whether the Additional Sessions Judge, Delhi has
jurisdiction to try the Criminal case filed by the appellant
without any order of commitment of the respondents by a
competent Magistrate. Section 193(1) of the Criminal
Procedure Code states :
"193. (1) Except as otherwise expressly
provided by this Code or by any other law for
the time being in force, no Court of Session
shall take cognizance of any offence as a
Court of original jurisdiction unless the
accused has been committed to it by a
Magistrate duly empowered in that behalf."
Section 526 of the Criminal Procedure Code
states
"526. (1) Whenever it is made to appear to the
High Court :-
(a)that a fair and impartial inquiry or trial
cannot be had in any Criminal Court
subordinate thereto, or ...................
(e)that such an order is expedient for the
ends of justice, or is required by any
provision of this Code; it may order-
(i).........................................
(ii)that any particular case or appeal, or
class of cases or appeals, be transferred from
a Criminal Court subordi-
571
nate to its authority to any other such
Criminal Court of equal or superior
jurisdiction;
On behalf of the respondents it was submitted by Mr. Anand
that the Additional Sessions Judge has jurisdiction to
proceed with the trial of the Criminal cam in view of the
order of transfer made by the High Court and the procedure
to be followed should be that of a warrant case as
contemplated by s. 526(2) of the Criminal Procedure Code
which states :
"526. (2) When the High Court withdraws for
trial before itself any case from any Court
other than the Court of a Presidency
Magistrate, it shall, except as provided in
section 267, observe in such trial the same
procedure which that Court would have observed
if the case had not been so withdrawn."
It was conceded by the learned Counsel that the provision of
s. 526 (2) applies only to a case which has been withdrawn
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by the High Court for trial before itself from any other
Criminal Court subordinate to it but it was contended that
the principle of that sub-section should apply also to a
criminal case transferred by the High Court to the
Additional Sessions Judge from the Court of a Magistrate.
In my opinion, there is no warrant for this argument. It is
manifest that s. 526 of the Criminal Procedure Code does not
expressly provide for the procedure to be followed by the
Additional Sessions Judge in a case of this description. It
follows, therefore, that for the trial of a case of this
description the legislature has not enacted any express
provision to the contrary within the meaning of s. 193 (1 ),
Criminal Procedure Code. This view is supported by
reference to s. 526 (2), Criminal Procedure Code which is an
express provision with regard to the trial of a case
transferred by the High Court to itself from any other
Criminal Court other than the Court of a Presidency
Magistrate. Reference should also be made to s. 198B of the
Criminal Procedure Code which states :
"98B.(1) Notwithstanding anything contained in
this Code, when any offence falling under
Chapter XXI of the Indian Penal Code (Act XLV
of 1860). (other than the offence of
defamation by spoken words) is alleged to have
been committed against the President, or the
Vice-President, or the Governor or Rajpramukh
of a State, or a Minister, or any other public
servant employed in connection with the
affairs of the Union or of a State, in respect
of his conduct in the discharge of his
572
public functions, a Court of Session may take
cognizance of such offence, without the
accused being committed to it for trial, upon
a complaint in writing made by the Public
Prosecutor.,
(2)Every such complaint shall set forth the
facts which constitute the offence alleged,
the nature of such offence and such other
particulars as are reasonably sufficient to
give notice to the accused of the offence
alleged to have been committed by him
(3).......................................
(4)No Court of Session shall take cognizance
of an offence under sub-section (1), unless
the complaint is made within six months from
the date on which the offence is alleged
to have been committed.
(5)When the Court of Session takes cognizance
of an offence under sub-section (1), then,
notwithstanding anything contained in this
Code, the Court of Session shall try the case
without a jury and in trying the case, shall
follow the procedure prescribed for the trial
by Magistrates of warrant cases instituted
otherwise than on a police report and the
person against whom the offence is alleged to
have been committed shall, unless the Court of
Session, for reasons to be recorded otherwise
directs, be examined as a witness for the
prosecution.
...........................................
There is no provision in the Criminal Procedure Code similar
to S. 198B or s. 526(2) with respect to the mode of trial of
the Criminal cases which are transferred direct from the
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Court of the Magistrate to the Court of Additional Sessions
Judge without an order of commitment being made. In the
absence of any express provision it must be held that the
Court of Additional Sessions Judge has no jurisdiction to
proceed with the trial of a Criminal case which has been
transferred to it by the High Court.
If this view is right it follows that the High Court is not
competent to transfer the Criminal case from the file of the
Sub Divisional Magistrate’s Court to that of the Additional
Sessions Judge, Delhi under the provisions of s. 526 (1)
(ii) of the Criminal Procedure Code. The argument was
stressed by Mr. Anand on behalf of the respondents that the
language of S. 526, Criminal Procedure Code contained no
limitation and that it was open
573
to the High Court "to transfer any particular case from a
Criminal Court subordinate to its authority to any other
Criminal Court of equal or superior jurisdiction". I do not
consider that there is any justification for this argument.
The language of s. 526(1) (ii) cannot be read in isolation
and cannot be given effect to without regard to the
mandatory provision of s. 193 of the Criminal Procedure
Code. On the contrary, the power of transfer given to the
High Court under s. 526(1) (ii) must be so interpreted as
not to conflict with the language of s. 193, Criminal
Procedure Code. In other words, the language of s.
526(1)(ii) must be restricted so as to be consistent with
and be harmonious with the requirements of s. 193 of the
Criminal Procedure Code, I am accordingly of the opinion
that the High Court had no power to transfer the criminal
proceedings in the present case from the Court of the Sub
Divisional Magistrate to the Court of the Additional
Sessions Judge without a proper order of commitment being
made. The order of the learned Chief Justice of the Punjab
High Court dated March 13, 1964 is erroneous in law and must
be accordingly set aside.
For the reasons expressed I set aside the order of the
learned Chief Justice of the Punjab High Court dated March
13, 1964 and in its place I direct that the Criminal case
filed by the appellant should be transferred to the Court of
any other 1st Class Magistrate stationed at Delhi to be
selected by the learned Chief Justice of the Punjab High
Court under s. 526(1)(iv) of the Criminal Procedure Code.
Criminal appeals nos. 86 and 88 of
1965 are accordingly allowed
In view of this order Criminal Appeal no. 87 of 1965 has
become infructuous and is accordingly dismissed.
ORDER
In accordance with the majority judgment the appeals are
dismissed.
574