# P. C. 'GULATI v. LAJYA RAM KAPUR AND OTHERS

- **Citation:** [1966] 1 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 1965-08-19
- **Case number:** Criminal Appeals Nos. 86 and 88 of 1965
- **Bench:** A. K. Sarkar, Raghubar Dayal, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-c-gulati-v-lajya-ram-kapur-and-others-3648
- **Pages:** 14

## Headnote

Code of Criminal Procedure, 1898 (5 of 1898), s. 526 (ii)-Transfer
of case fro1n Magistrate's court to Sessions-Power of High Court.
When s. 193 of the Code of Criminal Procedure prohibits the Court
A.
B·
of Sessions from taking "cognizance of any offence as a court of original
jurisdiction" unless the accused is committed to it by a Magistrate or
C:
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 S-..ssions Judge,
HELD : (Per Sarkar & Dayal, JJ.) The High Court is competent.
Cognizance of an offence as a court of original jtirisdiction means the
initiation of proceedings for the first time in a court and not in a $Ubsequent inquiry or trial necessary for the disposal of the case.
When a
Dease 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 refer·
red 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 th~ offences of which
cognizance
has
&
been taken. [567 B, C, D; 568 A)
There arc no reasons which could have induced the legislature to
contemplate the limiting of cl. (ii), of sub-s. (1) of s. 526 to the transfer
of cases fron1 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~ it would be incongruous to hold 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 follo\VCd in
the trial of a case transferred to the Court of S-..ssions 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. XXIJI which deals with the procedure of trials
before the High Courts and Courts of Sessions.
The Court of Sessions
has to follo\V the procedure ]aid down in this Chapter so far as that be
applicable to the cases to be tried by it. The special procedure~ laid <lawn
for particular type of cases and proceedings \viil be followed in
tho~c
cases as special provisions over-ride general provisions of Chap~er XX.III.
[563 F; 564 C-E]
'
Section 193, therefore, does not bar flirther proceedings by the C.ourt
of Sessions in a case transferred to it by ,the High Court. [568 CJ
F'
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•
•
A
B
c
D
P. c. GULATI v. L. R. KAPUR (Dayal, J.)
561
J>er Ramaswami, J. (Di9senting) : The High Court has no power: to
tr:insfcr a case from the Court of a Magistrate to the Court of Sessions
without a proper comn1itmcnt having been made. [573 C-D]
\Vhih: s. 526(2) is an express provision wi,th 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 Jv1agistrate, section 526 does
not expressly provide for the procedure to be follo\vcd by a Sessions
Judge in a case transferred to it by the Hjgh Court.
It fol~o.ws, there--
fore, that the legislature has not enacted any express prov1s1on to the
contrary within the meaning of 9. 193(1). [571 E-Fl
The language of s. 526( I) (ii) cannot be read in isola.ti?n and cannot
be given effect to wilhout regard to the mandatory prov1s1ons of s. 19'3.
The powers of transf·~r gi

## Text

560
P. C. 'GULATI
v.
LAJYA RAM KAPUR AND OTHERS
August 19, 1965
[A. K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.]
Code of Criminal Procedure, 1898 (5 of 1898), s. 526 (ii)-Transfer
of case fro1n Magistrate's court to Sessions-Power of High Court.
When s. 193 of the Code of Criminal Procedure prohibits the Court
A.
B·
of Sessions from taking "cognizance of any offence as a court of original
jurisdiction" unless the accused is committed to it by a Magistrate or
C:
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 S-..ssions Judge,
HELD : (Per Sarkar & Dayal, JJ.) The High Court is competent.
Cognizance of an offence as a court of original jtirisdiction means the
initiation of proceedings for the first time in a court and not in a $Ubsequent inquiry or trial necessary for the disposal of the case.
When a
Dease 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 refer·
red 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 th~ offences of which
cognizance
has
&
been taken. [567 B, C, D; 568 A)
There arc no reasons which could have induced the legislature to
contemplate the limiting of cl. (ii), of sub-s. (1) of s. 526 to the transfer
of cases fron1 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~ it would be incongruous to hold 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 follo\VCd in
the trial of a case transferred to the Court of S-..ssions 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. XXIJI which deals with the procedure of trials
before the High Courts and Courts of Sessions.
The Court of Sessions
has to follo\V the procedure ]aid down in this Chapter so far as that be
applicable to the cases to be tried by it. The special procedure~ laid <lawn
for particular type of cases and proceedings \viil be followed in
tho~c
cases as special provisions over-ride general provisions of Chap~er XX.III.
[563 F; 564 C-E]
'
Section 193, therefore, does not bar flirther proceedings by the C.ourt
of Sessions in a case transferred to it by ,the High Court. [568 CJ
F'
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•
A
B
c
D
P. c. GULATI v. L. R. KAPUR (Dayal, J.)
561
J>er Ramaswami, J. (Di9senting) : The High Court has no power: to
tr:insfcr a case from the Court of a Magistrate to the Court of Sessions
without a proper comn1itmcnt having been made. [573 C-D]
\Vhih: s. 526(2) is an express provision wi,th 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 Jv1agistrate, section 526 does
not expressly provide for the procedure to be follo\vcd by a Sessions
Judge in a case transferred to it by the Hjgh Court.
It fol~o.ws, there--
fore, that the legislature has not enacted any express prov1s1on to the
contrary within the meaning of 9. 193(1). [571 E-Fl
The language of s. 526( I) (ii) cannot be read in isola.ti?n and cannot
be given effect to wilhout regard to the mandatory prov1s1ons of s. 19'3.
The powers of transf·~r given to the Hi3:h Court under s. 526(1) (ii) must
be interpreted as not to conflict with the lauguagc of s. 193. [578 A-B]
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, Rameshivar Nath and Mahinder N&ain,
for
the appellants (in all the appeals) .
Ra111 Lal Anand, and .T. B. Dadachanji, for respondents Nos.
E
1 and 2 (in all the appeals).
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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 dis'senting
Opinion.
Raghubar 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 Sessions
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 called the Code, deals with transfer of ciiminal 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 s,;b-s. ( l)
thereof exists :
562
SUPREME COURT
REPORTS
[ 1966] I S.C. R.
"(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 or appeals, be transferred from a Criminal Court
subonlinatc to its authority to any other such Criminal
Court of equal or superior jurisdiction;
(iii) that any p"rticular case or appeal be transferred to and tried before itself; or
A
B
(iv) that an accused person be committed for trial to
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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 :-.fagistrate 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
D
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 live classes of Criminal Courts
in India, namely:-
[.-Courts of Session;
IL-Presidency Magistrates;
JII.-Magistrates of the first class;
IV.-Magistrates of the second class;
V.-Magistrates of the third class;
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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. (I) of s. 526 does
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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
11rged 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 Ma!!istrate to another Court of a
Magistrate. as otherwise there would be difficulties in the trial of H
the case by the Sessions Court when it is transferred to it Crom
the Court of a Magistrate.
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B
c
D
P. c. GULATI v. L. R: KAPUR (Dayal, I.)
563·
The first difficulty urged is that s. 193 of the Code inter alia·
provides that except as otherwise expressly provided by the Code
or by other law for the time being in force, no Court of Session·
shall take coognizance of any offence as a court of original juris·
diction unless the accused has been committed to it by a Magis·
trate 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 diffirnlty 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 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 transferre,d case by the Court of Session to be of
E 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·
F
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
G 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 Hi!!h Court to ordelr
H
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
SUPREME COURT REPORTS
[1966] l S.C.R.
the Court of a Magistrate other than a Presidency Magistrate,
A
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).
B
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
C
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
D
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 commence 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,
E
or claims to be tried. It does not say that the charge to be read
must be the charge framed by the Magistrate who commits the F
case. It is the Sessions Judge wh6 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 re-frame the charge and read out the
charge as framed by him.
Jn practice the Session Court does
G
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 C:ourt after the Magistrate has framed the charge.
H
When the Magistrate. has not framed a charge, the Sessions Judge
can do so on the basis of the prosecution allegations.
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c
D
P. c. GULATI v. L. R. KAPUR (Dayal, J.)
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 Comtting 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. 207 A 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(').
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 exc~pt
as provided in ss. 207 A, 211 and 23 I. 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.
E
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.
F
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.
G
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 offenc.es mentioned in that section and
s. 485A empowers a Criminal Court to take cognizance of the
H
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
-----------
(I) A. T. R. 196! S. C. 674.
566
SUPREME COURT REPORTS
[1966) I S.R.C.
do not specifically mention the Court of Session, but these proviA
sions 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.
B
Section I 93 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.
C
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
D
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
s.s. 190 to l 99B.
In R. R. Chari v. The Stare of Urrar Pradesh(1) this Court
approved of the following observations of Das Gupta J., in Remembrancer of Legal Affairs, West Renga/ v. Abani Kumar Bannerjee(') :
"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 magistr;ite has taken cognizance of any offence under 'cction 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 Ma!!istratc 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 ..
(I) (1951] S.C.R. 312.
(2) A. I. R. 1950 Cal. 437.
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P. c. GULATI v. L. R. KAPUR (Dayal, J.)
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.
There 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
C 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 made over to it by the High
Court.
A consideration of the provisions of the various sections
in
D
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
offonces of which cognizance has been taken. Se;ction 190 provides that Magistrates can take cognizance of a case in •ither of
E
F
the three ways mentioned in sub-s. ( 1 ). Section 191 provides for
the transfer or commitment of the case in which the Magiitrate 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 Magistrate6 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
G
not to take cognizance of the case afresh but ha~ simply to proceed
with the inquiry or trial of the case. Section I 93 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.
H
L 7SKP./65-8
568
SUPREME
COURT
RIOPORTS
[1966] I S.C.R.
When a case is committed to the Court of Session, the Coun
A
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 procecd;ng 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
B
context that the Sessions Court has to take cognizance of the
offence as a Court of original jurisdiction and it is such a cogni7.ance which is referred to in s. 193.
We are therefore of opinion that the further proceedings by
t~ Court of Session in a case transferred to it by the High Court
C
arc not barred by s. 193 of the Code.
Further it would be incongruous if the High Court be competent 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. ( I ) 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 commitment oi an accused person for trial to itself or to a Court of
Session.
Such an order can however be passed only when the
proceeding<; in the Court of the Magistrate have reached that stage
when it be possible for the High Coun 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 a case can be made at any stage at which the
c~.>e may !>'! 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 he transferred from one High Court to another High Court
•ll"
from
a
criminal
Court subordinate
to one
High
Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
Th.e language of
the section empowers this Court to transfer a case from the Court
of a Magistrate under one High Court to a Court of another
Magistrate of equal or superior juri<diction, or to a Court of Ses-
,ion, 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
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P. c. GULATI v. L. R. KAPUR (Ramaswami, ].)
569
this Court in Harbajan Singh v. State('). 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 re-summon witnesses and re-comB
mence 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 daied 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
0
Magistrate. That order being correct, we dismiss Cr. A. 8 6 of
1965 .
Cr. A. 87 of 1965 is against the order of the High Court refllSing to review its order of transfer dated March 13, 1964. That
appeal is therefore dismissed as infructuous.
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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
F 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
G Bench of the Punjab High Court against t11e-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 tlle Revision PetiH
tion and also tlle application under s. 526 of the Criminal Procedure Code and transferred tlle Criminal case to the Court of Sri
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(!) [1965) 3 S.C.R. 535.
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SUPREME
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[1966] l S.C.R.
P. N. Thukral, Additional Sessions Judge, Delhi for disposal. The
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appellant then realised that the Additional Sessions Jud~-:. Delhi
had no jurisdiction to try and dispose of the Criminal Petition in
view of the provisions of s. 193 (I ) 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
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application was d~missed 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/6'4 and Criminal
C
Miscellaneou> 63-D of 1964 trarn;ferring the complaint to the
Court of the Additional Sessions Judge, Delhi for disposal. Criminal appeal no. 87 of 1965 is brought, by spcdal Jeaw, against
the order of the Learned Chief Justice, Punjab High Court dated
March 12. 1965 refusing to revidw his previous order dated March 0
13, 1964.
The first <Jlicstion ari.,ing for detemtination in this case is
whethe< the Additional S=ion.~ Judge, Delhi has jllrisdiction to
try the Criminal case filed by the appellant without any order of
commitment of the respondents by a competent Magi,tratc. Section 193 ( 1 ) of the Criminal Procedure Code state'\ :
·· 19 3. ( I ) Exctjpt as otherwise expressly provided by
thi~ Code or by any other law for the time being in force,
no Court of Session shall take cognizance of any offence
:ts 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 ~tates :
"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 Cllds of ju'<-
ticc, or is required by any provision of thi$ Code:
it may order1 i) ...................................... ..
(ii) that any particular case or appeal, or class of cases
or appeals, be transferred from a Criminal Court subordiE
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P. c. GULATI v. L. R. KAPUR (Rama.swami, J.)
57 I
nate to its authority to any othet such Criminal Court
of equal or supetior 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 case in view of the ordet of transfet made
by the High Court and the procedure to be followed should be
that of a warrant case as contemplated bys. 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 by the
High Court for trial before itself from any othlll' 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 (I), 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 :
"l 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
SUPREME
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REPORTS
(1966) I S.C.R.
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 sufliciCflt
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 ( I ) , unless the complaint is
made within six months from the date on which the
offence is alleged to have be.m committed.
( 5) When the Court of Session takes cognizance of an
offence under sub-section ( I ) , 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 dil'l?Cts, be examined as a witness for the prosocution.
"
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There is no provision in the Criminal Procedure Code similar to F
s. 198B or s. 526(2) with respect to the mode of trial of the
Criminal cases which arc transferred direct from the 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
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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
Procedure1 Code contained no limitation and that it was open
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P. c. GULATI v. L. R. KAPUR (Ramaswami, J.)
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 effeot
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 .Qf 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 tlie Additional Sessions Judge without a proper order of commitment being
made.
The order of the learned Chief Justice of the Punjab
D
High Court dated March 13, 1964 is erroneous in law and must
be accordingly set aside.
For the rea~ons 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
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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
F become infructuous and is accordingly dismissed.
G
ORDER
In accordance with the majority judgment the appeals are
dismissed.