Emperor vs Babu Hansanali Mujawar

Fawcett, J.—It is objected that the First Class Magistrate, having had the case transferred to him by the Sub-Divisional Magistrate, had no power to transfer the case again to the Third Class Magistrate who finally disposed of it, There is no doubt authority for this proposition in Bashir Husain v. Ali Husain I.L.R.(1913) I But assuming that this is so, still in our opinion the case is one that falls under Clause (f) of Section 529, Criminal Procedure Code. The First Class Magistrate was not empowered by law to transfer the case to the Third Class Magistrate, but he erroneously and in good faith did so transfer it. There is nothing to show that the Magistrate did not believe that ha had power to transfer; and we should, in the absence of anything to the contrary, assume bona fides. Accordingly his proceedings are not to be set aside merely on the ground of his not being so empowered. That, in our opinion, means that his order of transfer should not be treated as so invalid as to prevent the Third Class Magistrate, who took cognizance upon the transfer, from having jurisdiction to try the accused.

Mr. Joshi for the applicant contends that the case falls under Clause (p) of Section 530, Criminal Procedure Code. But this is not a casa of a Magistrate having no legal power to try the accused for the offence in question. He had that power, but the proceedings are merely alleged to be vitiated because of the order of transfer that I have mentioned, That being so, the transfer of the case is the vital defect, and not the trial of the offender. We do not think, therefore, that there are sufficient grounds for our interference on that point.

As regards the second point Mr. Joshi alleges that, as there was no common object specified in the charge, the trial is vitiated, and in support of this he cites Sabir v. Queen-Empress or show cause no be is which a for and not should that in Court to the application of any other p Code this been has with are there some his Procedure hand, then many sections trial set aside merely error charge, unless misled defence, justice resulted: instance Sections 232, 536 537, Clause (a), Criminal Code. agree below nothing omission prejudiced accused resulted failure justice. We, therefore, see reason interfere, dismissed.

Mirza, J.

I agree.