Bithal and Another vs State of Another

H.N. Kapoor, J.—This revision is directed against the order dated 11-5-1974 of the Judicial Magistrate, Sadar, Mathura fixing a date for providing copies to the accused u/s 208 Code of Criminal Procedure and to pass orders u/s 209 Code of Criminal Procedure on that very date.

The allegations are that the accused persons have been summoned u/s 307/34 IPC on the basis of the complaint filed by Dina opposite apart. The prosecution evidence had been recorded during the commitment proceedings under Chapter XVIII of Code of Criminal Procedure, 1898 but the statement of the accused could not be recorded, nor they could get any opportunity to adduce evidence u/s 208 Code of Criminal Procedure (old). The new Code of Criminal Procedure of 1973 came into force during the pendency and the complainant applied for committing the accused to the court of Sessions u/s 209 Code of Criminal Procedure. The learned Magistrate then passed the impugned order.

One of the grounds taken in this revision is that Section 484(2) is discriminatory and violates Article 14 of the Constitution of India. It was argued that u/s 209 Code of Criminal Procedure (new) the Magistrate is required to commit those cases only to the court of Sessions which in his opinion are triable by the court of Sessions and he may still retain some cases which in his opinion may be triable by Magistrate and ultimately commit them under provisions of the old Code of Criminal Procedure as some cases were triable by court of Sessions as well as by Magistrate. This argument is without force because under the new Code of Criminal Procedure all the offences are either triable by the court of Sessions or Magistrate. No offence is triable by court of Sessions and by the Magistrates concurrently.

The learned Counsel for the Applicants prayed that the hearing of the case may remain suspended during the Emergency as Article 14 of the Constitution of India has been suspended. Since I find no force in the ground taken with regard to the Article 14 of the Constitution of India, I do not find it necessary to suspend the hearing of this revision for that reason.

The learned Counsel for the opposite party has raised preliminary objection that no revision lies against interlocutory order and as such the revision is not maintainable u/s 397 Sub-Section (2) Code of Criminal Procedure (new).

The learned Counsel for the Applicant argued that the filing of the revision in this case will be governed by old Code of Criminal Procedure as the proceedings in the committing court were pending at the time of the enforcement of the new Code of Criminal Procedure. I do not agree with this contention. Revision is a discretionary remedy and it cannot be filed as a right. A person cannot acquire any substantive right of filing revision simply because the proceedings were pending at the time of the commencement of new Code of Criminal Procedure. In case of appeal, it is a different matter. An appeal can be filed as of right. Mathur, C.J. has taken the view in the case of Surjit Kaur Vs. Gurmail Singh and Another, that in such a case appeal can be filed before the High Court or Sessions according to old Code of Criminal Procedure because appeal can be filed as of right as a person acquired substantive right to file appeal. The same is not true with regard to the revision. There is therefore force in the argument of the learned Counsel for the opposite party that the revision itself is not maintainable as it is against interlocutory order.

The learned Counsel for the Applicants has also argued that it amounts to the passing of final order as the judicial ''Magistrate has decided that the new Code of Criminal Procedure will be applicable. I do not agree with that contention as the order is only to provide copies and the order u/s 209 Code of Criminal Procedure is yet to be passed.

On merit also, there is no force in the revision as under new Code of Criminal Procedure the Magistrate is bound to commit a case which is triable by Sessions u/s 209 Code of Criminal Procedure. Proviso 484 Sub-Section (2) clearly provides that enquiry under Chapter XVIII of the old Code will be dealt with in accordance with the provisions of this new Code. There is thus no force in this revision, which is accordingly dismissed. The stay order is vacated. The record shall be sent back to the lower court to proceed expeditiously with the case.