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PETITIONER: M. R. DHAWAN

       Vs.

RESPONDENT: DELHI ADMINISTRATION & RAJA PRATAP BHANU PRAKASH SINGH

DATE OF JUDGMENT13/03/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1978 AIR 1011            1978 SCR  (3) 488  1978 SCC  (2) 184

ACT: Constitution  of  India,  1950,  Art.  136-Interference   by Supreme Court in the discretionary powers of High Court.’ Criminal  Procedure  Code (Act 5), 1898- S.  437  Revisional Powers of the High Court. Criminal Procedure Code, (Act II of 1974), 1973 Section 484, Scope of.

HEADNOTE: A  complaint filed by respondent Pratap Bhanu Prakash  Singh alleging  that  the appellant to whom he has  entrusted  the 27000 shares purchased by him from Rohtas Industries against a  loan  of  Rs.  1.82 lacs  advances  by  the  latter,  has committed  a  breach of trust of the amount covered  by  the shares  by selling them against his express directions,  was inquired  into the trial magistrate and was dismissed  later on  28-10-71.  The revision filed before the Sessions  Judge Delhi  failed.  In the further revision, the High Court  set aside the order of discharge and directed that the appellant be committed to the Court of Sessions. Dismissing the appeal by special leave, the Court HELD  :  1.  it is not for the Supreme Court  in  appeal  by special leave to go into the sufficiency or insufficiency of the  material  before  the magistrate  which  may  afford  a justification for passing an order of discharge.  Under sec- tion 213, sub-clause     (2) of the Crl.  Procedure.   Code, 1898, a magistrate can discharge the accused if   he   finds that  there  are no sufficient grounds  for  committing  the accused.  [490 B-D] 2.  Under section 437 of the Criminal Procedure  Code  1898, the revisional Court in hearing a  revision petition against an order of discharge passed by the magistrate may direct  a commitment  without  any inquiry at all or he may  direct  a fresh     inquiry.   There  are  two  courses  open  to  the revisional Court : (1) either to   set  aside the  order  of disc  charge  and direct a fresh inquiry to  be  made  under Section  436 in which case, the inquiry  will  automatically revive or (2) that instead of directing any fresh inquiry an order  committing  the accused for trial to  the  Court  of Sessions.   An  order of the second category amounts  to  an order of commitment and there is no necessity of any further inquiry at all. [491 E-F, H, 492 A]

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3.  The  first  part of Section  484  clearly  excludes  the application of 1973 code to any appeal, application,  trial, inquiry  etc. pending at the time when the 1973  Code  comes into  force.  The provision to section- 484 (1)  (2)  carves out  an exception to the general rule contained  in  Section 484(2)  (a) and provides that where a commitment inquiry  is pending  at the commencement of the 1973 Code, it is  to  be governed by 1973 Code and not by 1898 Code. In the instant case, the High Court has not passed any order to the effect that the commitment inquiry was to be revived, but  has in absolutely clear and unequivocal terms  ordered, "the,   respondent  shall stand committed to  the  Court  of Sessions  u/s  409." Since by virtue of the High  Court  the magistrate  had no control or siesin of the case at  all,the of  any inquiry pending before him does not arise.  [491  B, C,E 492 B-C] 489

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 343  of 1977. (Appeal by Special Leave from the Judgment and Order dt. 21- 10-75  of the Delhi High Court in Criminal Revision No.  118 of 1973). A .K. Sen & A. K. Nag for the Appellant. R. N. Sachthey & S. P. Nayar for Respondent No. 1. V. Prabha and S. P. Nayar for Respondent No. 2. The Judgment of the Court was delivered by FAZAL  ALI,  J.-This  appeal by special  leave  is  directed against  the judgment of the High Court of Delhi dated  21st October, 1975 by which the High Court set aside the order of the  Magistrate discharging the appellant and  directed  his commitment to the Court of Session. The facts of the case have been detailed in the judgment  of the  High  Court and that of the trial Court and it  is  not necessary for us to repeat the same all over again.  It will be  enough to say that the complainant Pratap Bhanu  Prakash Singh purchased 27,000 shares of Rohtas Industries which are entrusted  to the appellant against a loan of Rs. 1.82  lacs advanced  by the appellant.  Accordingly the allegation  was made in the complaint that the appellant committed a  breach of trust of the amount covered by the shares by selling them against   express   directions   of   the    complainant.The allegations  were denied by the appellant who put forward  a plea that there was no entrustment and that the shares  were pi  iced  in  the hands of the appellant as  security  and therefore the question of breach of trust did not arise.  In view of the allegations and counter allegations more by  the parties,  we are not inclined to go into the merits  of  the case particularly when we propose to uphold the order of the High  Court  directing commitment of the  appellant  to  the Court of Session.  Any observations which may be made by  us on merits are likely to prejudice either party at the  trial and  therefore  we refrain from going into  merits  at  this stage.  We are, however, satisfied that having regard to the reasons  given by the High Court it cannot be said that  the High  Court  was in error in exercising  its  discretion  by setting   aside  the  order  of  discharge   and   directing commitment to the Court of Session. It  appears  that  the  appellant was  tried  by  the  trial Magistrate,  who  after entering into pros and con;  of  the case  found that no prima facie case was established and  he accordingly discharged the appellant by his order dated  28-

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10-1971.   "he complainant unsuccessfully filed  a  Revision against  this  order before the Sessions  Judge,  Delhi  who affirmed the order of the Magistrate.  Ultimately the matter came up in revision before the High Court which after  going through  facts  and circumstances of the case found  that  a prima  facie case for commitment was made out and set  aside the order of discharge passed 490 by  the  Magistrate  and upheld by the  Sessions  Judge  and directed  that  the appellant be committed to the  Court  of Session.  Hence this appeal by special leave before us. Two points were argued by Mr. Ashoke Sen, the leaned counsel for  the appellant.  In the first place, it was  urged  that having regard to the admitted facts and circumstances of the case  no prima facie case against the accused was  made  out and   the  trial  Magistrate  was  therefore  justified   in discharging  the appellant and the High Court exceeded  its jurisdiction  in  reversing the order of discharge  and  di- recting  commitment.  For the reasons that we  have  already given  it is not possible for us to hold that the  order  of the High Court suffers High Court suffers from the infirmity pointed  out.   The High Court has arrived at a  finding  of fact  that  a prima.facie case was made  out  for  directing commitment to the Court of Session and this Court would  not normally interfere with the discretion exercised by the High Court.  We would like to point out that under Sec. 213  sub- cl. (2) of the Code of Criminal Procedure, 1898 (hereinafter referred  to as the "1898 Code") a Magistrate can  discharge the accused if he finds that there are no sufficient grounds for  committing  the accused.  It is obvious that  the  High Court has applied its mind to the facts and circumstances of the  case and it is not for this Court in appeal by  special leave  to go into the sufficiency or insufficiency  of  the, material   before   the  Magistrate  which  may   afford   a justification  for passing an order of discharge.  In  these circumstances the first argument put forward by the  learned counsel  for the appellant is overruled and we refrain  from saying anything more on this aspect. The second argument of Mr. Ashoke was that even if the  High Court  was right in directing commitment, by  setting  aside the order of discharge the position will be that by  virtue of  a  legal  fiction,  the  commitment  proceedings   which culminated in the discharge of the appellant would revive so as  to  attract  the  operation  of  the  Code  of  Criminal Procedure, 1973 (hereinafter referred to as the "1973 Code") as  a result of which the case against the  appellant  would cease  to be one which would be exclusively triable  by  the Sessions  Court  and  therefore  the  Magistrate  would   be competent to try the, case himself under the 1973 Code.   In order  to  appreciate the argument advanced by  the  learned counsel  for  the appellant it may be necessary  to  extract the,  relevant  portion  of the- 1973  Code.   The  relevant section 484 runs thus :-               "484(1) The Code of Criminal Procedure,  1898,               is  hereby repealed, (2) Notwithstanding  such               repeal,               (a) if, immediately before the ate on which a&               Code  comes  into force, there is  any  appeal               application,  trial, 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 C de of Criminal  Procedure,               1898,  as  ’in force immediately  before  such

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             commence- 491               ment,  (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." The  first  part  of  this  section  clearly  excludes   the application  of  the 1973 Code to  any  appeal  application, trial,  inquiry etc. pending at the time when the 1973  Code comes into force.  The provisio to sec. 484(1) & (2) however carves  out  an exception to the general rule  contained  in section  484(2)  (a) and provides that  where  a  commitment inquiry  is pending at the commencement of the 1973 Code  it is  to be governed by the 1973 Code and not the  1898  Code. It  was thus argued that the moment the order  of  discharge passed  by  the  Magistrate was  set  aside  the  commitment inquiry  revived  and would be deemed to be pending  on  the date on which the order of the High Court was passed that is to  say 21-10-1975 and thereafter the inquiry would have  to be  regulated  by the provisions of the 1973 Code.   It  was argued that under the 1973 Code a case under section 409  is not exclusively triable by Sessions Court but is triable  by a  First  Class Magistrate and therefore there would  be  no question  of commitment of the case to the Court of  Session but the Magistrate would have to try the case himself as  he was  competent  to  do so being a Magistrate  of  the  First Class.  We have examined this argument carefully but we  are unable to accede to the same.  The High Court has not passed any  order to the effect that the commitment inquiry was  to be  revived  but has, in absolutely  clear  and  unequivocal terms,  ordered "that the respondent ’shall stand  committed to  the Court of Session under sec. 409’  view of the  order passed  by  the High Court there is  no  question  of  any inquiry being received.  Moreover, it would appear from  the perusal  of  sec. 437 of the 1898 Code that  the  revisional Court  in hearing a revision against an order  of  discharge passed the Magistrate may direct Commitment without any  in- quiry  at  all or he may direct a fresh  inquiry.   In  this connection  the relevant portion of section 437 of the  .898 Code runs as follows :-               "When  on  examining the record  of  any  case               under s. 435 or otherwise, the Sessions  Judge               or  District  Magistrate considers  that  such               case  is triable exclusively by the  Court  of               Session  and that an accused person  has  been               improperly  discharged by the inferior  Court,               the Sessions Judge or District Magistrate  may               cause  him to be arrested, and may  thereupon,               instead of directing t fresh inquiry order him               to  be committed for trial upon tie matter  of               which  he  has  been, in the  opinion  of  the               Sessions   Judge   or   District   Magistrate,               improperly discharged". It  therefore, manifestly clear that there are  two  courses open  to  the revisional court (1) either to set  aside  the order  of  discharge and direct a fresh inquiry to  be  made under section 436 in which, 492 case  the  inquiry  will automatically revive  or  (2)  that instead  of  directing  any  fresh  inquiry  pass  an  order committing  the accused for trial to the Court  of  Session.

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An  order  of the, second category amounts to  an  order  of commitment and there is no necessity of any further  inquiry at  all.   In  the instant case as the High  Court  did  not choose  to order any further inquiry but directed  that  the accused  will  stand committed to the Court of  Session  the question  of revival of the inquiry does not arise  at  all. Indeed,  if  the  High Court  would  have  directed  further inquiry into the matter then the matter would have gone back to  the  Magistrate  and the  original  inquiry  would  have revived  in terms of the order of the High Court.   In  that case,  no  doubt, the 1973 Code may have  applied.   In  the instant case since by virtue of the order of the High  Court the  Magistrate had no control or siesin of the case at  all the  question  of any inquiry pending before  him  does  not arise.  For these reasons, therefore, we overrule the second contention put forward by Mr. Ashoke Sen. The  result  is that the appeal fails and is dismissed.   As the case is old,    the   Sessions  Court  will   give   top priority to this case and dispose it    of   as   early   as possible in accordance with law. S. R.                            Appeal dismissed. 493