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TMI Blog1976 (4) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... er that the complaint has taken a long time, because it was difficult to get the accused served. On 22nd September, 1975, I expressed some doubt as to whether this court had original criminal jurisdiction to entertain the criminal complaint as it was not a court of original criminal jurisdiction, Arguments have been addressed on this question and I now proceed to deliver the judgment. I first take up the position under the Code of Criminal Procedure, 1898, which was in force when this complaint was instituted. In section 28, it was provided that offences under the Indian Penal Code could be tried by the High Court, the court of session or any other court specified in the eighth column of the Second Schedule. In section 29, it was stated that any offence under any other law could be tried in a court mentioned in this behalf by that law. However, when no such court was mentioned, the trial would be in the High Court or any other court mentioned in the eighth column of the Second Schedule as being the appropriate court. An examination of the entries in the Second Schedule relating to offences against other laws shows that such offences can be tried either in the court of session ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The purpose of that provision was to enable the court which had passed a winding-up order or appointed a provisional liquidator to take cognizance of offences under section 454(5) concerning the failure to file a statement of affairs before the liquidator. The section would have been quite redundant if the provisions of section 446(2) were wide enough to enable the liquidator to file a complaint before the High Court. In my view, the question whether this court has jurisdiction has not to be decided by trying to determine the intention of the legislature by referring to section 446(2) or even to the other provisions of the Companies Act, 1956. In my view, the proper procedure is to examine the Criminal Procedure Code, as it stood in 1898, to see the necessary steps which have to be taken in order that criminal proceedings can be initiated. There is no doubt that the court of session can try a case under the Criminal Procedure Code. But, even in the case of the court of session, the cognizance of the offence can only take place under section 193 and the High Court can only take cognizance under section 194. The wording of section 194 which is concerned with the taking of cognizance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this case, if it wants to do so, by exercise of other powers. I have up-to-now examined the position only under the Criminal Procedure Code of 1998. As the judgment is being given after the Code of 1973 has come into force, I would like to examine the position also under the new procedure and note if there is any change in the position. I am doing so because of the importance of the question. Under the Criminal Procedure Code of 1973, the courts empowered to try criminal offences are mentioned in section 26; they are the High Court, the court of session or any other court by which the offence is shown as triable in the First Schedule of the Code. This is the position with regard to offences under the Indian Penal Code. In respect of offences under any other law, the courts competent to try are the High Court or any other court by which such offence is shown as triable in First Schedule of the Code. Therefore, there is no doubt that the High Court is a court which is competent to try an offence under the Companies Act, 1956, if we look at section 26 by itself. However, as I have already noticed in the above analysis, there are two stages in the trial of a criminal offence. First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings, is due to the historical background of the English law. At one time, the Grand Assizer could first consider an indictment and then the actual trial would take place before a Little Assizer. The corresponding procedure is reflected in our law in the fact that in serious cases a magistrate has to commit for trial before the court of session. This procedure is applied in England only for the trial of felonies. In the case of lesser offences or petty offences the proceedings had to be initiated either before a justice of the peace or before a magistrate. That is exactly the position in respect of lesser offences under our law also, the only difference is that under the existing Code of 1973, all proceedings have to be initiated before a magistrate. The only exception I can think of is the one given by section 454 of the Companies Act, 1956, which enables the High Court to directly take cognizance of an offence without a magistrate interfering. Thus, the position with respect to complaints before this court is that it has no jurisdiction to take cognizance of the same, which must be filed before a magistrate. One more explanation is necessary to show how the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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