Sait Kasturi Chand and Another vs Addagalla Vaikuntam

Horwill, J.—The complainant in this case gave a complaint under Sections 406 and 409, I.P.C. to the Joint Magistrate of Narsapur to the

effect that he had pledged jewels with certain Marwari bankers (the petitioners in this Court) and that when he redeemed the jewels they were

found to weigh 35 tolas as against 47 tolas entrusted. The Joint Magistrate, after recording the sworn statement of the complainant u/s 200 of the

Criminal Procedure Code, came to the conclusion that the present petitioners were not bankers and that the offence disclosed by the complaint

was one u/s 406, I.P.C., which is triable by a Second Class Magistrate and not one punishable under S- 409, I.P.C., which"" is triable only by a

First Class Magistrate. He therefore exercised his powers tinder Section 192 of the Code of Criminal Procedure and transferred the case to the

Stationary Sub-Magistrate of Narsapur for disposal. The Stationary Sub-Magistrate, instead of proceeding with the case u/s 204 of the Criminal

Procedure Code, referred the matter to the Police for investigation u/s 202 of the Criminal Procedure Code, and upon the Police report the

Stationary Sub-Magistrate dismissed the case u/s 203 of the Criminal Procedure Code. The complainant was not satisfied with that order and took

the matter in revision to the Sessions Judge of West Godavari, who set aside the order of dismissal on the ground that the Stationary Sub-

Magistrate had no jurisdiction to take action u/s 202 of the Criminal Procedure Code.

Section 202 of the Criminal Procedure Code makes express provision for action under that section in cases transferred to a Magistrate u/s 192

of the Criminal Procedure Code; but if that stage had already been passed by the Magistrate who took cognizance of the case, then it appears

clear to me that there cannot be any enquiry u/s 202 of the Criminal Procedure Code For example, if the Magistrate to whom a case is transferred

always has the power u/s 202 of the Criminal Procedure Code to direct the Police to make an investigation, it would mean that he has power

under that section to revise or review the orders of the Magistrate who transferred the case to him. if that Magistrate himself had already taken

action u/s 202 and satisfied himself that there were sufficient grounds for proceeding with the case. The question whether the Stationary Sub-

Magistrate had jurisdiction or not to order an investigation u/s 202 of the Criminal Procedure Code would therefore depend upon whether the

Joint Magistrate had or had not passed beyond that stage when he transferred the case to the Stationary Sub-Magistrate,

The mere fact that the Joint Magistrate transferred the case to the Stationary Sub-Magistrate is itself no indication of the stage which the

Magistrate taking cognizance had reached; because u/s 200 he can transfer the case even before the sworn, statement is taken. The wording of

Section 200 of the Criminal Procedure Code is so wide as to make it permissible for a Magistrate taking cognizance of a case to transfer it at any

stage. Only the Magistrate who took cognizance is in a position to say definitely whether he considered, in the words of Section 204 of the

Criminal Procedure Code, that there was sufficient ground for proceeding. In the absence of an opinion by that Magistrate (I do not think it will be

fair to ask that Magistrate after such a lapse of time to try to recollect what his opinion was then), we have to Judge of the Magistrate''s intention--

if that is possible--by the order which he passed. It is argued for the complainant that the mere fact that the Magistrate said that he took the case

on file itself Indicates that he did not think that it was a case which necessitated investigation or enquiry u/s 202 of the Criminal Procedure Code. I

am not however sure that that is so. ''Taking on file'' is not an expression found in the Code, and I do not think that it has any precise meaning even

in magisterial usage. The Joint Magistrate may have thought that he could not transfer the case to the file of the Stationary Sub-Magistrate unless he

took the case on his own file; and so it may well be that he transferred the case even at the stage of taking of cognizance u/s 200 of the Criminal

Procedure Code. If so, it was open to the Stationary Sub-Magistrate to order an enquiry u/s 202 of the Criminal Procedure Code.

As one cannot be sure that the Sub-Magistrate had no jurisdiction, I do not think that the learned Sessions Judge was right in setting aside the

order of the Stationary. Sub-Magistrate on the ground of want of jurisdiction. We have to presume that he had jurisdiction unless we can be sure

that he had not. This petition is therefore allowed and Cr.R.P. No. 1.7 of 1941 on the file of the Sessions Court, West Godavari, is restored and

the Sessions Judge ordered to dispose of it according to law.