Sardar Khan Sahib vs Attaulla

Madhavan Nair, J.—These are petitions for revising the order of the District Magistrate of Salem transferring G.C. Nos. 113A and 113 of

1923 from the file of the Dharmapuri, Sub-Divisional Magistrate to the file the Treasury Deputy Magistrate, Salem.

These cases were tried before Mr. Pinto, while he was the Sub-Divisional Magistrate of Dharmapuri, but before the trial was over he was

transferred to Salem as the Treasury Deputy Magistrate. Mr. Pinto''s successor at Dharinapuril 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 as Jago Singh v. Emperor 53 Ind. Cas. 820, it has been held by a Bench of the Patna High Court in

similar circumstances that when, on the transfer of a Magistrale, 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, Cr. P.C. since Mr. Pinto is only a Treasury Deputy Magistrate.