Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura, in Criminal Motion No. 134 of 1964 with a recommendation for setting aside the order dated 15.5.1984 passed by S.D.M., Udaipur in C.R. Case No. 65 (46) of 1963.
2. The facts leading up to this reference can be briefly stated as follows:
A petition of complaint having been lodged by the petitioner before the A. S.D.M., Amarpur, on 31.6.1963, on an allegation that 8 persons; including the 4 accuse4 opposite-parties Banka Roy Riang, Anada Riang, Karnaram Riang, Jnan Chandra Riang, Ganga Prasad Riang and one Satya Roy Riang formed an unlawful assembly and trespassed into her land forcibly and damaged her paddy crops the accused were summoned under Sections 143, 447 aud 427, I.P.C. by the learned A. S.D.M. Thereafter the case was transferred to the Court of Shri I.B. Dasgupta, Magistrate 2nd Class, Amarpur who examined the prosecution witnesses. On 19.11.1963 a petition having been moved on behalf of the accused opposite parties praying for adjournment on the ground that they wanted to move the superior Court1 for transfer, the learned Magistrate allowed the prayer. Thereafter on 12.12.1963 the learned Magistrate directed the record to be sent to the S.D.M. after recording an order to the following effect:
Seen the order dated 10.12.1963 passed by S.D.M., Amarpur. Recall the W/A issued against the accused. As the ground of transfer is not known to me, I find no scope to offer any comments whatsoever in respect of transfer for the case as called for.
Any way so far I feel, when any one prays for transfer, as the ground is not known, I may well presume that he shows lack of faith upon the trying Magistrate. I would, therefore, feel that the case may kindly be allowed to be transferred to any Court as learned S.D.M., deemed proper in the interest of the dispensation of the justice manifestly.
Send the record to S.D.M., as called for by the date fixed.
Then Shri K.P. Chakraborty, S.D.M., Southern Zone, Udaipur passed an order on 21.12.1963 withdrawing the case to his file. Notice having been ordered to be issued on both the parties, they appeared before the learned S.D.M., and on 19.3.1964 the learned S.D.M., examined the 4 accused opposite parties under Section 342, Cr.P.C., and ordered issue of summons to the defence witnesses. On 21.4.64 the learned S.D.M., adjourned the case to 5.5.1964 after allowing the prayer of the accused opposite parties for issue of summons without costs to two Government employees cited by them as witnesses. On 5.5.64 the case was adjourned to 19.5.1964 on the ground that the concerning Magistrate was out of station. But on 15.5.1964 the learned S.D.M., Shri K.P. Chakraborty passed an order to the effect 'Transferred to the file of Shri P. Dev Choudhury, Magistrate 1st Class for favour of disposal.' The transferee Magistrate Shri P. Dev Choudbury passed an order on 19.5.1964 adjourning the case to 23.6.1964 on the ground that no defence witnesses have been produced. He further passed two orders for two other adjournments on some other grounds and the case was adjourned to 29-7-64 under his order dated 8.7.1964.
Thereafter on 27.7.1964 the petitioner moved the Court of Sessions Judge for transfer of the case under, Section 528(1C) Cr.P.C., alleging inter, alia that the order of the learned S.D.M., transferring the case to the file of Shri P. Dev Choudhury, Magistrate 1st Class, was illegal.
3. The learned Sessions Judge after hearing the Advocates on behalf of both the parties has made this reference for setting aside the order of learned S.D. M., dated 15.5.1964.
4. In this case the sole point for consideration is whether the order dated 15.5.1964 passed by the learned Magistrate is erroneous or not.
5. The order of learned S.D.M., dated 15.5.1964 transferring the case to Shri P. Dev Choudhury, Magistrate 1st Class cannot be an order under Section 192, Cr.P.C., for the simple reason that he is not the Magistrate who took cognizance of the case. In this case it was alleged that the case was transferred to the S.D.M., Shri K.P. Chakraborty from the file of Shri I.B. Dasgupta, Magistrate 2nd Class, under the orders of the District Magistrate, Sri P. Dev Choudhury, Magistrate First Class, who was called upon to furnish explanation against the grounds of transfer petition has furnished an explanation by observing that the opposite parties moved the District Magistrate to transfer the case to any other competent Court and accordingly the District Magistrate transferred the same to the Court of Shri K.P. Chakraborty, S.D.M,, Udaipur. But that order is not on this record. If the S.D.M,, Shri K.P. Chakraborty, had received the case on transfer under the orders of the District Magistrate, the law is clear to the effect that the transferee Magistrate has no further power to transfer the case and it was the clear duty of the S.D.M., to try the case himself. The order for transfer made by the S.D.M., Shri K.P. Chakraborty is, therefore, illegal.
In the absence of any materials on record to show that the District Magistrate passed an order transferring the case to the S.D.M., Shri K.P. Chakraborty, it will be taken that there was no such order. The order of Shri I.B. Dasgupta dated 12.12.1963, however, shows that he had received an order dated 10.12.1963 passed by A.S.D.M., Amarpur and that he directed the record to be sent to the S.D.M., as called for. This order dated 12.12.1963 further shows that the order dated 10.12.1963 of the S.D.M., referred to therein related to the transfer of the case. Moreover, the order of Shri K.P. Chakraborty, S.D.M., dated 21.12.1963 clearly mentions 'withdrawn to my file'. Although the petition for transfer, if any, filed by the opposite parties as also the order dated 10.12.1963 of the S.D.M., Amarpur referred to in the order dated 12.12.63 of Shri I.B. Das Gupta are not found on the record. But I find that orders dated 12.12.63 and 21.12.1963 prima facie show that the case was withdrawn to the file of Shri K.P. Chakraborty, S.D.M., under his own order.
6. Sub-section (2) of Section 528, Cr.P.C., empowers a Sub-Divisional Magistrate to withdraw any case from any Magistrate subordinate to him and either to try such case himself or refer it for trial to any other subordinate Magistrate competent to try the same. There can be no room for doubt that the Sub-Divisional Magistrate has a wide discretionary power to withdraw a case under Sub-section (2) of Section 528, Cr.P.C.; but the words 'And may enquire into or try such case himself or refer it for enquiry and trial to any other such Magistrate competent to enquire into or try the same' lay down to alternative courses open to the Magistrate passing the order of withdrawal. He may after such a withdrawal try the case himself or transfer the same to some other Magistrate for disposal. No other course is open to him.
In this case the order-sheet of the case shows that after withdrawing the case on 19.3.1964 the learned S.D.M., examined all the 4 accused persons present under Section 342, Cr.P.C. and further passed an order for issue of summons to D.Ws. It follows, therefore, that he had started proceeding with the trial of the case after withdrawing the same to his file. There is no provision anywhere in law for the learned S.D.M., to make any order for transfer after he has himself taken up the trial of the case in accordance with the' provisions of Sub-section (2) of Section 528, Cr.P.C. The order of the S.D.M., Shri K.P. Chakraborty dated, 15.5.1964 transferring case to the file of Shri P. Dev Choudhury, Magistrate 1st Class for favour of disposal is, therefore, clearly illegal.
7. Further it would appear from the pre-tom order dated 5.5.1964, that on that date the case was adjourned to 19.5.1964, The order transferring the case to the file of Shri P. Dev Choudhury, Magistrate 1st Class was passed by the learned S.D.M., on a date which was not fixed for the case and without notice to the complainant. The order of transfer, therefore, must be held to have occasioned a failure of justice too.
8. In view of my foregoing discussions, I find that the order of the learned Magistrate dated 15.5.1964 transferring the case to the file of Shri P. Dev Choudhury, Magistrate First Class is illegal. I have therefore, no option but to accept the reference and set aside the order of the Magistrate. Hence, the reference is accepted and the order of the learned Magistrate is hereby set aside.