Gauri Shanker and Another vs Om Prakash Gupta

M. Wahajuddin, J.—It appears that the case was pending in the court of Sub-Divisional Magistrate, Atrauli. An application, after the decision of the case, was preferred u/s 340, Code of Criminal Procedure for launching prosecution for perjury. The Sub-Divisional Magistrate, Atrauli, moved for transfer of the case u/s 340, Code of Criminal Procedure, mentioning that he is pressurised and does not want to do the case. The case was transferred by the Additional District Magistrate (Administration) exercising the powers of the District Magistrate to another court. The court held that it had no jurisdiction to hear the case u/s 340, Code of Criminal Procedure as the very court has to hear it. The case was sent back again to the court of Sub-Divisional Magistrate, Atrauli, in question. Aggrieved by the same the applicants have preferred this application u/s 482, Code of Criminal Procedure praying that the second order of transfer may be quashed and the case may proceed before the court to which it was transferred.

The relevant portion of Section 340, Code of Criminal Procedure reads as follows:

... Any Court is of opinion that It is expedient in the interest of justice that an inquiry should be made into any. offence...which appears to have been committed in or in relation to a proceeding in that Court....such court may, after such preliminary inquiry, if any, as it thinks necessary-

(a) record a finding to that effect;

(b) make a complaint thereof in writing.

....

It is argued that Section 411, Code of Criminal Procedure providing for transfer of cases, over-rides Section 340, Code of Criminal Procedure and even cases covered u/s 340, Code of Criminal Procedure, can be transferred to any other Magistrate by the proper authority empowered to transfer cases. Section 411(b) Code of Criminal Procedure runs as follows:

411 - Any District Magistrate or Sub-Divisional Magistrate may-

(b) withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other Magistrate.

It Is urged that this confers a wide powers to transfer cases. It is no doubt apparent that powers are wide, but obviously those powers are limited to transfer of cases to a court having a competent jurisdiction. The crux of the matter would always be whether cases u/s 340 Code of Criminal Procedure in which complaint has to be filed before such Magistrate, can be transferred or whether Section 340 Code of Criminal Procedure is a self contained section In itself and it is the provision contained therein and the procedure laid down which alone shall govern. This matter stands resolved by the case of Rameshar Lal Vs. Rajdhari Lal . It deals with the old Section 476. Code of Criminal Procedure providing for filing of the complaint by the original court concerned. That section corresponds to present Section 340, Code of Criminal Procedure. It is urged that this ruling has no relevance, because is does not deal with the interpretation of Section 411 read with Section 340, Code of Criminal Procedure. I have given my anxious consideration to this line of argument urged and I am unable to agree with the submission. Reliance is further placed upon the case of Budhabai v. Alibhai AIR 192 SC Nag 358, in which it was held that Section 476 Code of Criminal Procedure should be read as governed or controlled by Section 526 Code of Criminal Procedure which conferred the High Court with the power to, transfer any case from any file to any other file. I am at present concerned with the scope of Section 340 Code of Criminal Procedure as such and I have to consider whether cases under that section can be transferred exercising the powers u/s 411 Code of Criminal Procedure or not. It is urged that it is not that provisions of Section 340 Code of Criminal Procedure are notwithstanding any other provision. I have considered all these arguments. The crux of the matter to my mind is whether Section 340 Code of Criminal Procedure is a self contained section or not, or whether it is governed by other provisions of the Code of Criminal Procedure. I feel that the framers of these provisions have made their intention abundantly clear. It has been expressly laid down that it is the very court which can file the complaint or it is superior court which can do so. I am fortified in my view by the earlier pronouncement of this Court in case of Rameshar Lal v. Rajdhari Lal (supra). It was held in that case that the transfer provisions cannot be invoked to allow a court other than the court In the course of the proceedings in which a perjury or forgery was committed or a court to which appeal ordinarily lie from that court to entertain the question of preferring a criminal complaint u/s 476, Code of Criminal Procedure. It was also held in that case that old Section 476 Code of Criminal Procedure, (corresponding to new Section 340 Code of Criminal Procedure) is a complete section In Itself and lays down the complete procedure. When that is the position, I am of the view that the case could not have been transferred to any other Magistrate. In fact, if any other, view is taken, the very emphasis contained In Section 340, Code of Criminal Procedure for the matter being enquired into by the very court for filing any complaint or by the court to which appeal lies will be defeated, because in such a case any case can be transferred to any court, which cannot be the intention of the Legislature. The application is misconceived and is, therefore, rejected. But before parting with this case I may no doubt observe that as the very Magistrate says that he is being pressurised, the applicant will be at liberty to move the District and Sessions Judge or the High Court for transfer of the case to any superior court where appeal lies in the special situation and that aspect can be then considered in accordance with law there.

After I have dictated so far, Sri Jagdish Singh Sengar stood up, and submitted that I have not appreciated his arguments and have also not considered the provisions of Sections 406 to 411, Code of Criminal Procedure regarding the transfer of cases from one court to another and their he read out all those sections. I gave a patient hearing adhering to the judicial tradition in the matter, though it already stood concluded. He also sought time to cite Supreme Court cases urging that the Allahabad view that I have cited is not a good law. I adjourned the case.

Today he has cited only two cases, namely, Gurcharan Das Chadha Vs. State of Rajasthan, and In Re: The Special Courts Bill, 1978, relying upon the observations at page 517 paragraph 94. The former case laid down that even if any special court exists the power to transfer the case elsewhere is not taken away. In the latter case it was observed that where there is apprehension of bias, there will be a violation of the fundamental principles of natural justice and a denial of fair play and absence of provisions for transfer of the trials may be undermind the confidence of the people in special courts. That was also a case where the matter of transfer from a special court was involved. I may observe that I have nowhere held that the power to transfer the cases is not wide enough, nor this can be disputed. The law, however, is to be applied to the facts of the cases and not vice-versa. In the present case I have to decide two simple questions. The first question to be decided is whether in view of. the language of Section 340 Code of Criminal Procedure a court other than the court, in which the case was pending and was decided, can file a complaint or not. Secondly, if it cannot file such a complaint, whether any transfer of the case for filing a complaint to another Judicial Officer exercising similar powers will be bad. So far as these two aspects are concerned, as the learned applicant''s counsel offered to cite Supreme Court pronouncement contrary to the view I had taken, I considered it my duty to myself also study the law further and on going through the Supreme Court Cases Digest I have been able to lay hand upon a direct authority covering all these matters. That case is reported in Kuldip Singh Vs. The State of Punjab and Another, . It relates to interpretation of Section 476-A and 476-B, Code of Criminal Procedure corresponding to present Sections 340 and 341, Code of Criminal Procedure and to Section 195 Code of Criminal Procedure. In that case what transpired was that an application was filed for launching prosecution under Sections 193 and 471, Code of Criminal Procedure in the court of ''A'' who had succeeded to ''B'' in that court, ''B'' having tried the main case. Before the application could be heard ''A'' was also transferred and no subordinate Judge of the first class was appointed. Instead of that ''B'' a subordinate Judge of IV class was sent to that area to decide the cases. He reported that he had no jurisdiction, because the offence had been committed in the court of subordinate Judge of first class and other court. The District Judge thereupon transferred the matter to the senior subordinate Judge ''P'' who made the complaint. It was held by the Supreme Court that senior subordinate Judge ''P'' had no jurisdiction to make the complain as be was not the original court which tried the suit and it was also not enough that he too had first class powers, because he was not the same court. It bas, thus, been laid down specifically and categorically that the complaint has to be filed by the very court and not by any other court notwithstanding that such Presiding Officer also excercised similar powers. In that case it was further held that even the Additional District Judge had no jurisdiction to act under that section during appellate proceedings. It was observed that he had no jurisdiction to reject the application for making the complaint. It was further observed at page 393 column second, that there is a bar of taking cognizance u/s 195, Code of Criminal Procedure unless the bar is lifted either by the original court or the court to which it is subordinate within the meaning of Section 195, Code of Criminal Procedure. It was, further, observed that those are the only courts invested with the jurisdiction to lift the ban and make the complaint. In fact, in paragraph 41 of the judgment it was observed that the High Court also had no jurisdiction to act u/s 476, Code of Criminal Procedure. In these circumstances, I again reiterate that the order transferring the case to another Presiding Officer was bad and he rightly returned back the case to the very court. I may also observe that as the Presiding Officer of that court himself observed that he is being pressurised, he would not be able to approach the matter in an unbiased manner. In the circumstances, the proper course would be to move an application before the District & Sessions Judge, who has over all powers in the district. In case the Presiding Officer of the court concerned still holds the office as Presiding Officer of that court, the only other competent court would be court to which that court is subordinate and to which appeals ordinarily lie from the appealable decree or sentences etc. The District & Sessions Judge will go through the directions touching the case of the Supreme Court and provisions of Section 195 (3) & (4) referred to in the Supreme Court judgment. If he himself is the court to which the original court was subordinate and where the appeals lie he can hear the matter himself. If there is any other such court, the matter will be transferred to that court. This can be done only after an application is moved, as aforesaid, and notice is given to the opposite side as well. The Distt & Sessions Judge while hearing such application will bear in mind the observations in the case of Kuldip Singh (Supra) the Head note A and paragraphs 11, 15 and 16 of the judgment and follow it and abide.

With these observations the application is summarily rejected, as the impugned order itself is not bad.