Sardar Khan Sahib vs Athanlla

Madhavan Nair, J.—These cases were tried before Mr. Pinto, while he was the Sub-divisional Magistrate of Dharmapuri; but before the

trial was over, he was transterred to Salem as the Treasury Deputy Magistrate. Mr, Pinto''s successor at Dharmapuri granted the accused a de

novo trial. The District Magistrate has now ordered the transfer of these cases to the file of Mr. Pinto at Salem on the ground

that the balance of convenience is strongly in favour of the small amount of work still to be done being done by Mr. Pinto at Salem, rather than the

whole case should be heard again by a new Magistrate at Dharmapuri.

It has been assumed by the District Magistrate that Mr. Pinto could go on with the trial of the cases from the point where he had left it. In the

decision reported in Jago Singh v. Emperor 53 IndCas 820 it has been held by a Bench of the Patna High Court, in similar circumstances, that

when on the transfer of a Magistrate, a criminal case pending before him is taken up by another Magistrate and the trial is started de novo, the

proceedings, which had already taken place before the Magistrate, who has been transferred, are wiped out and such Magistrate has no

jurisdiction on his return to the district to proceed with the trial from the point where he had left it. Applying the principle of this decision to the facts

of the present case, I am inclined to think that, if Mr. Pinto took up the cases from the point where he left it and went on with the trial, his

procedure would be illegal and the cases would have to be tried de novo. The balance of convenience relied upon by the District Magistrate as a

justification for the transfer does not, therefore, really exist. The question as regards the hardship and the inconvenience which the transfer of the

cases to Salem will cause to parties and their witnesses, all of whom are alleged to belong to Dharmapuri, has also not been considered by the

District Magistrate.

I therefore set aside the order of the District Magistrate transferring the cases to the file of the Treasury Deputy Magistrate at Salem. The Sub-

divisional Magistrate of Dharmapuri will take up the cases on his file and proceed with their trial.

In this view, it is unnecessary to consider the further question raised by the petitioner''s learned vakil that the District Magistrate had no

jurisdiction to transfer the cases to the file of Mr. Pinto, u/s 528, Criminal Procedure Code, since Mr. Pinto is only a Treasury Deputy Magistrate.