P. C. GULATI versus LAJYA RAM KAPUR AND OTHERS

Citation: [1966] 1 S.C.R. 560 · Decided: 19-08-1965 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Dismissed

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Judgment (excerpt)

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 $Ubse-
quent inquiry or trial necessary for the disposal of the case. 
When a 
D-
ease 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 Magis-
trate ,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 Ses-
sions. [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' 
H 
j 
f 
.. 
• 
• 
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 Punj

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