# M. R. DHAWAN v. DELHI ADMINISTRATION & RAJA PRATAP BHANU PRAKASH SINGH

- **Citation:** [1978] 3 S.C.R. 488
- **Court:** Supreme Court of India
- **Decided:** 1978-03-13
- **Case number:** Criminal Appeal No. 343 A of 1977
- **Bench:** S. Murtaza Fazal Ali, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-r-dhawan-v-delhi-administration-raja-pratap-bhanu-prakash-singh-7352
- **Pages:** 5

## Headnote

Constitution of India, 1950, Art. 136-Interference by Supreme Court in
the di.Jcretionary powers of High Court.
Criminal Procedure Code (Act 5) 1898- S. 437 Rerisional Powers of the
High Court.
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Criminal Procedure Code, (Act II of 1974), 1973 Section 484. Scope of.
A complaint filed by respondent Pratap Bhanu Praka5h 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
!"lelling them against his express directions, ,.vas inquired into the trial magistrate
and was dis1nissed 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.
D·ism.issing the appeal by special ]eave, 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 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
Cou1t : ( 1) either to set aside the order of discharge 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 pass an order committing the accused for trial to the Court of Sessions.
An order of the second
category amounts to an order of commitmeint and there h; no necessity of any
further inquiry at all.
[491 E-F, H, 492 Al
3. The :first part of Section 484 claer1y 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 proviso to section 484 (1)(2) carves out
an exception to the general rule contained in Section 484(2) (a) .a.nd provides
that where a commitment iiriquiry is pending at the commencement of
the
1973 Code, it is to be governed by the 1973 Code and not by 1898 Code.
In the instant case, the ff,jgh Court has not passed any order to the effect
that the commitment inquiry was to be revived, but has in absolutely dear
;;ind unequivocal terms ordered, "that.. the respondent 5hall stand committed
to the Court of Se!sions u/s 409." Since by virtue of the High Court the
magistrate had no control or siesin of the case at all, the question af any
inquiry pending before him does not arise. [ 491 H, C, E. 492 B-C]
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DHAVAN v. DELHI ADMINISTRATION (Fazal Ali, !.)
489

## Text

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488
M. R. DHAWAN
v.
DELHI ADMINISTRATION & RAJA PRATAP BHANU
PRAKASH SINGH
March 13, 1978
[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.]
Constitution of India, 1950, Art. 136-Interference by Supreme Court in
the di.Jcretionary powers of High Court.
Criminal Procedure Code (Act 5) 1898- S. 437 Rerisional Powers of the
High Court.
'
Criminal Procedure Code, (Act II of 1974), 1973 Section 484. Scope of.
A complaint filed by respondent Pratap Bhanu Praka5h 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
!"lelling them against his express directions, ,.vas inquired into the trial magistrate
and was dis1nissed 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.
D·ism.issing the appeal by special ]eave, 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 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
Cou1t : ( 1) either to set aside the order of discharge 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 pass an order committing the accused for trial to the Court of Sessions.
An order of the second
category amounts to an order of commitmeint and there h; no necessity of any
further inquiry at all.
[491 E-F, H, 492 Al
3. The :first part of Section 484 claer1y 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 proviso to section 484 (1)(2) carves out
an exception to the general rule contained in Section 484(2) (a) .a.nd provides
that where a commitment iiriquiry is pending at the commencement of
the
1973 Code, it is to be governed by the 1973 Code and not by 1898 Code.
In the instant case, the ff,jgh Court has not passed any order to the effect
that the commitment inquiry was to be revived, but has in absolutely dear
;;ind unequivocal terms ordered, "that.. the respondent 5hall stand committed
to the Court of Se!sions u/s 409." Since by virtue of the High Court the
magistrate had no control or siesin of the case at all, the question af any
inquiry pending before him does not arise. [ 491 H, C, E. 492 B-C]
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DHAVAN v. DELHI ADMINISTRATION (Fazal Ali, !.)
489
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 343
A
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 were 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
the 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 placed 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 mane 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 cons of the case found that no prima
facie case was established and he accordingly discharged the appellant
by his order dated 28-10-1971.
The complainant unsuccessfnlly
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
committment was made out and set aside the order of discharge passed
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
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 learnd counsel
for the appellant.
In tbe first place, it was urged !bat having regard
B 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 !bat we have already given it
is not possible for us to hold that tbe order of the High Court suffers
from the infirmity pointed out. The High Court has arrived at a finding
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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
suffici<J_nt 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
1he second argument of Mr. Ashoke Sen 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 proc<fodings 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")
F
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 competant 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 !'xtract the relevant portion of the 1973 Code.
The relevant sec!!on
484 runs thus :-
"484(1) The Code of Criminal Procedure, 1898, is hereby repealed, (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, inquiry 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 commence-
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DHAVAN v. DELHI ADMINISTRATION (Fazal Ali, J.)
491
men!, (hereinafter referred to as the "Old Code"), as
if.
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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".
In view of the order passed by the
fl'igh 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 dis-
<charge 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 J 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 a fresh inquiry order him to
be committed for trial upon the matter of which he has
been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged".
It is 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
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[1978] 3 s.c.R.
C!liC the inquiry will automatically revive or (2) that instead of directing any freah inquiry pass an order committing the accused for trial
to the Court of Session.
An order of the second category amount• 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 furtboc 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 iii terms of the order of the High Court. In that <;_ase, 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 d~missed.
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