Raja Madhu Sudan Dev and Others vs Panu Parhi

Macpherson, J.—This rule was originally granted to consider whether the case pending against the petitioners in the Court of Mr. M.N. Bose, Deputy Magistrate of Cuttack, should be not transferred to another Court for trial substantially on the ground that the Magistrate had on 21st May altered, to the prejudice of the petitioners, charges which he had framed against them on the preceding day. When the rule was being heard by Bucknill, J., Sir Ali Imam for the petitioners took a fresh ground that the trying Magistrate had no jurisdiction to try the case and the learned Judge referred the case to a Division Bench, by which the rule was extended to cover both grounds. Mr. Manohar Lal, on behalf of the petitioners, has pressed both grounds.

The first ground cannot prevail. From the report of the Magistrate on the matter the reason for the alteration is manifest. When the charges as originally framed were read over to the accused on the 20th May, the pleader for the prosecution pointed to illustration (d) to Section 383 of the Indian Penal Code and submitted that it would be more appropriate to charge Petitioner No. 1 with the substantive offence punishable u/s 384 and Petitioner No. 2 with abetment of that offence. Just then the Magistrate was called away to other duties and he accordingly adjourned the case to the following day, at the same time informing the pleader for the prosecution that his contention would be considered then. On taking up the case on the following day the Magistrate having considered the law and the evidence on the record, acceded to the contention of the pleader for the prosecution. Any submissions against the alteration in the charge which the defence cared to make would have had patient hearing and consideration but none were forthcoming. It is clear that the Magistrate acted correctly and that the accused have no grievance whatever.

The plea that the Magistrate has no jurisdiction to try the case is supported in the following manner. The Sub-Divisional Magistrate in whose Court the complaint against the petitioners was preferred, after making an inquiry u/s 202, dismissed the complaint u/s 203 of the Code of Criminal Procedure. Upon application made to him the Sessions Judge directed "a further inquiry into the complaint which has been dismissed." The complainant then moved the Circuit Court for a transfer of the case from the file of the Sub-divisional Magistrate and Ross, J., passed the following order:

In my opinion there ought to be a transfer of this case. The Magistrate held a local inquiry and disbelieved the complaint and further enquiry was ordered by the learned Sessions Judge, but he did not direct the transfer of the case to another Magistrate. The application has now been made. I think it is expedient for the ends of justice that as the Magistrate has held an inquiry and expressed a decided opinion on the merits of the case the case should be transferred to some other Magistrate.

I therefore direct that the further enquiry be held by a competent Magistrate other than Mr. Misra to whom the learned District Magistrate may make over the case.

The District Magistrate thereupon made over the case to Babu M.N. Bose for disposal. That Magistrate examined the witnesses of the complaint whom the Sub-divisional Magistrate had failed to examine and, finding that a prima facie case had been made out, issued summons upon the petitioners under various sections of the Penal Code, heard the evidence adduced by the prosecution and thereupon, as has been said, framed charges on the 20th May and amended them on the next day.

The contention is not very clear but is substantially as follows: Babu M.N. Bose had no power to issue summons against the accused or to try them. The case was indeed made over to him by the District Magistrate for disposal but the order of the District Magistrate was it is urged, illegal, since all that Ross, J., directed to be transferred was the inquiry u/s 202, so that until the report of that inquiry had been made to the District Magistrate, and the latter had passed orders upon it, the accused could not be placed on their trial at all; still less by Babu M.N. Bose who could not in any case issue summons u/s 204, as he has not been empowered u/s 190(2) to take cognizance of an offence upon receiving a complaint of facts constituting such offence.

In my opinion the submission is unfounded. Admittedly cognizance was taken of the complaint by the Sub-divisional Magistrate and he examined the complainant. It was no doubt open to him u/s 202(1) to direct an inquiry by a Subordinate Magistrate but he did not do so. The transfer of the case under orders of the High Court does not amount to a direction u/s 202(1). On the contrary it contemplates a transfer to an officer competent to try the whole case as it stood before the Sub-divisional Officer dismissed the complaint with the order for further inquiry made by the Sessions Judge super added. No doubt it is implied that the Magistrate to whom the case is transferred will hold an inquiry u/s 202(1) but he will do so as the Magistrate seised of the case and noli in a subordinate capacity with the obligation to report to another Magistrate. In fact the order contemplates complete determination of the case by the Magistrate to whom it is transferred, either by dismissal, if in his judgment there is, after farther inquiry, no sufficient ground for proceeding, or by issue of summons, if in his opinion there is sufficient ground for proceeding.

The District Magistrate is brought in merely so that he may exercise his discretion in the distribution of the work of his district by nominating the particular Magistrate. The case is not transferred to his file nor is he placed in the same position as the Sub-Divisional Magistrate would, it is suggested, have occupied if the latter had u/s 202(1) directed an inquiry by a Magistrate subordinate to him, if the Subdivisional Magistrate acting u/s 192(1) transfers a case of which he has taken cognizance before issue of summons (the provisos to Section 200 show that he may do so) the Magistrate who receives the case on transfer has power to do all that is requisite to try and decide the case, including power to issue summons on the accused. He has the same power where the High Court directs transfer of the case from the file of the Subdivisional Magistrate and the case is transferred to his file in accordance with that direction.

Upon this view this application is without merit and the rule must be discharged. The case has already been pending more than seventeen months and it should be disposed of with all reasonable expedition.