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5. That the amending Act came into effect w.e.f. 6th February, 2003, therefore complaint instituted under Section 138 of the Act prior to 6th February, 2003 can be tried by the Court of Session because it is only, after the amendment that a separate Forum of trial has been prescribed. Submission of the petitioners that summons case can only be tried by a Magistrate and not by Court of Session is misconceived. Because any Code governing the procedure is an enabling enactment and only bars or limits certain acts when specifically provided for. There is no bar specifically provided under the Code for the trial of summon cases by the Court of Session. The impugned order was passed under Article 227 of the Constitution upon the principle enunciated under Section 407 of the Code Section 142(c) of the Act does not provide that cases under Section 138 of the Act would be friable only by the Court of Metropolitan Magistrate or Judicial Magistrate First Class. No exclusive jurisdiction has been conferred under the Act on the Magistrate, 1st class. Only provision made is that the complaint under Section 138 would not be tried by any Court inferior to the Court of Metropolitan Magistrate or Judicial Magistrate, First Class. Tht the amendment and insertion of Section 143 makes it clear that it is not retrospective. It will apply prospectively. That no right of the petitioner has been affected by the transfer of cases nor the petitioner has been discriminated.

Thus, the non obstante limb provided in Section 142 of the N.I. Act is not intended to expand the powers of a Magistrate of First Class beyond which is fixed in Chapter III of the Code."

11. We find force in the submission of Mr. Anil Kumar Sharma, Advocate for the petitioners that the High Court on the administrative side by invoking the provision of Article 227 of the Constitution or for that matter Section 497 of the Code could not have widen or expanded the powers beyond what is fixed under the Act. Section 142 of the Act in fact over-rides the powers vested under Section 407 of the Code. In view of the specific provision no case under Section 138 friable by Judicial Magistrate of First Class can be transferred nor this specific provision provided under the special Act can be circumvented by invoking the plenary jurisdiction of the High Court under Article 227 of the Constitution. In support reference can be made to the decision of our own High Court in the case of Jindal Photo Films Limited v. State, 91 (2001) DLT 34 (DB)=II (2001) CCR 207 (DB)=2001 II AD (Cr.) DHC 178. This Court while relying on the decision of Supreme Court in the case of Pankajbhai Nagjibhai Paid (supra), held that under Section 138 no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate, First Class shall try the offences under Section 138 of the Act. But by inference it cannot be contended that if jurisdiction of Court inferior to Magistrate, First Class is barred the Court superior to Magistrate, First Class would get the jurisdiction. This sort of interpretation would not only be against the provisions of special statute i.e. N.I. Act but also the mandate given under Section 4(2) and Section 26(b)(ii) of the Code. Apex Court in the case of A.R. Autulay v. R.S. Nayak and Anr. , was called upon to reconsider and recall its directions given earlier on 16.2.1984 in the case reported as K.S. Nayak v. A.R. Autulay, Apex Court in A.R. Autulay's case was considering the powers of the Court to transfer cases vis-a-vis the provisions of special legislation and came to the conclusion that it could not have transferred the case from the Court of Special Judge to the High Court of Bombay. The facts in R. S. Nayak's case (supra), are that the Apex Court while holding that a Member of Legislative Assembly is not a public servant set aside the order of the Special Judge. Instead of remanding the case to the Special Judge for disposal the Apex Court of its own withdrew the case from Special Judge and transferred the same to the Bombay High Court with a request that those cases be assigned to a sitting Judge of the High Court for holding the trial on day-to-day basis. These directions were challenged by A.R. Autulay which came up before the Larger Bench. While interpreting the provision of the Criminal Law Amendment Act (46 of 1952) (hereinafter called 1952 Act) and in particular Section 7 of the 1952 Act which provides that notwithstanding anything contained in the Code of Criminal Procedure, or any other law the offences specified in Sub-section (1) of Section 6 shall be friable by Special Judge only, the Apex Court observed that the law provides for a trial by Special Judge and this is notwithstanding anything contained in Sections 406 and 407 of the Code of Criminal Procedure. While answering the reference Their Lordships observed that in view of provision of Section 7(2) of the 1952 Act and Articles 14 and 21 of the Constitution the directions given by them earlier were legally wrong. It was also observed that directions given on the ground of expeditious trial by transferring the cases to the High Court of Bombay was contrary to the statutory provisions of the 1952 Act and as such violative of Article 21 of the Constitution.

12. Mr. Anil Kumar Sharma, rightly contended that exclusive jurisdiction conferred on the Metropolitan Magistrate or Judicial Magistrate, First Class would preclude the exercise of power under Section 407 of the Code. Section 407 is subject to the overriding mandate given in Section 142 of the Act. If that be so then the contention of Mr. Neeraj Kaul has no force when he submitted that the High Court by invoking the plenary jurisdiction under Article 227 of the Constitution could transfer the cases under Section 138 of the Act to Courts of Sessions which Courts are not inferior to the Metropolitan Magistrate or Judicial Magistrate, First Class. Mr. Neeraj Kaul admitted that High Court has not transferred the cases by invoking the provision of Section 407 of the Code. If that be so it can safely be said that if the High Court cannot transfer the cases by invoking the provision of Section 407 of the Code it can also not transfer the same by invoking its power of superintendence. We are also not convinced with the arguments of Mr. Neeraj Kaul that the bar under Section 142 is only to the extent that Court inferior to the Magistrate, First Class will have no jurisdiction. In fact what the Legislature intended was not only Magistrate, First Class will try those cases and not any Magistrate as stipulated in First Schedule Part-II of the Code. By relying on Article 227 of the Constitution the respondent cannot be permitted to expand the jurisdiction or the scope of the special Act nor the jurisdiction as envisaged under Section 142 of the Act. We also find no merit in the contention of Neeraj Kaul that in A.R. Antulay's case case unlike Section 7(2) of the 1952 Act, no specific bar is provided under Section 142(c) of the Act. No doubt under 1952 Act it was provided that the cases shall be friable by Special Judge only. But reading of the N.I. Act does not indicate that under Section 142(c) unlimited jurisdiction vests with various Courts to try cases under Section 138 of the Act. Even though the words "only has not been written in Section 142(c) but the intention of the Legislature can be inferred. When we say that cases under Section 138 would not be tried by any Court inferior to the Metropolitan Magistrate or Judicial Magistrate, First Class it does not automatically expand the jurisdiction to superior Courts. In fact the reading of Section 142(c) makes it clear that cases under Section 138 of the Act being summons cases are to be tried by Metropolitan Magistrate or Judicial Magistrate, First Class. First Schedule Part-11 of the Code provides that if the offence is punishable with imprisonment for less than 3 years or with fine only, then such an offence is friable by "Any Magistrate". It is with a view to circumvent "Any Magistrate" that the Legislature in its wisdom incorporated in Section 142(c) of the N.I. Act which is special provision that only Magistrate of First Class will try offences under Section 138 of the Act and not any Magistrate. This does not mean that jurisdiction under Section 142(c) has been expanded and can vest with Courts superior to the Court of Magistrate, First Class. Reliance by Mr. Neeraj Kaul on the case of Ranbir Yadav v. State of Bihar, , is misplaced. In that case the Court transferred the case from the Court of one Magistrate to the Court of another Magistrate for the reason that there was shortage of accommodation in the first Court. That is not the case in hand. It was not a case where the jurisdiction was transferred from the Court of Magistrate to the Court of Sessions.

13. No doubt the provision of Section 143 came into existence after the impugned order was passed but the contention of Mr. Kaul that such an amendment would not have any retrospective effect because the concept of clarificatory legislation is alien to the constitutional scheme and that the petitioner's reliance upon the amendment to try and establish that amended provisions existed even in the pre-amended Act is ex facie misconceived is contrary to the well established law for the reason that though clarification came by way of amendment but that by itself does not lead to the conclusion that prior to amendment power to try cases under Section 138 of the Act could vest with either the Magistrate, First Class or any superior Court i.e. the Court of Sessions. Offences under Section 138 being summons cases cannot be tried by the Court of Sessions. Section 4(2) of the Code as reproduced above makes it clear as to with whom the jurisdiction, will vest for trying such cases and that is with Magistrates. Similarly Section 26(b) makes it clear that offence under any law, when any Court is mentioned in this behalf, the case shall be tried by such Court. It is only when no Court is mentioned that the trial can be by any other Court by which such offence is shown, in the First Schedule to be triable. In the First Schedule Part-II special offences are shown to be friable by any Magistrate. By special provision in Section 142(c) of the Act it has been prescribed to be Magistrate of First Class. Therefore, the summons case which are friable by the Court of Magistrate, 1st Class cannot be tried by the Court of Sessions. The specific provision under Section 142(c) of the Act, to our mind, excludes the jurisdiction of the Court of Session and, therefore, the transfer of case from the Court of Metropolitan Magistrate to the Court of Sessions is in violation of the provision of special enactment i.e. N.I. Act. The Apex Court in the case of P.C. Gulati v. Lalya Ram and Ors., , was not dealing with transfer of case under the special legislation. Even otherwise no order under Section 407 of the Code could have been passed in view of judgment of Supreme Court in A.R. Antulay's case (supra). The procedure prescribed under the special enactment i.e. N.I. Act cannot be circumvented by either invoking he provision of Section 407 of the Code or Article 227 of the Constitution. By doing so this High Court acted contrary to the relevant statutory provision as envisaged under Section 142(c) of the Act.