M. R. Dhawan Vs. Delhi Administration
& Raja Pratap Bhanu Prakash Singh  INSC 66 (13 March 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1978 AIR 1011 1978 SCR (3) 488 1978
SCC (2) 184
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
Criminal Procedure Code, (Act II of 1974),
1973 Section 484, Scope of.
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
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 section 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]
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 the of any inquiry pending before him does not arise. [491 B, C,E 492 B-C]
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
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.
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- 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 directing 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 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 inquiry 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
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.