R.S. Bindra, J.C.
1. This criminal revision petition by Sushila Ghosh springs from a case instituted by her under Section 133 of the Criminal Procedure Code against Was Deb Mutreja and raises the question whether the provisions of Section 528 of the Code apply to such a case.
2. How this question arose between the parties can be stated in a few words. On 30th of March, 1966, Sushila Ghosh presented a petition under Section 133 of the Code before Shri P. Majumdar. the then District Magistrate, Tripura. The conditional order was made by the latter on 21-4-1966 and the respondent Was Deb was summoned by him to show cause against that order. Objections against the order were filed by Was Deb on 11-5-1966 but before any other step could be taken in the case, Shri P. Majumdar was transferred and succeeded by Shri S. M. Kanwar, and the latter, by his order dated 20th of September, 1966, transferred the case to the Sub-Divisional Magistrate, Sadar. The Sub-Divisional Magistrate had recorded only a part of the evidence by 5-5-1967 when Was Deb applied to the District Magistrate under Section 528 of the Code for withdrawing the case from the Sub-Divisional Magistrate and placing it either on his own file or making it over to some other competent Magistrate. The District Magistrate issued notice of that application of Sushila Ghosh for the next day, viz., 6-5-1967, and on that day he made an order withdrawing the case from the Sub-Divisional Magistrate and placing it on his own file. It is mentioned in the relevant order that the transfer was being made at the request of the counsel for the parties and for the reason that no effective steps had been taken by the Sub-Divisional Magistrate although a number of hearings had been fixed in the case. After the transfer order, dated 6-5-1967, statements of some witnesses were recorded by Shri A. Bhattacharjee, the Acting District Magistrate, when Shri S. M. Kanwar went on leave, and another two witnesses were examined by the latter after he joined back the office. For recording rest of the evidence, the case was fixed by him for 31st of August, 1967. However, one day before that date Sushila Ghosh moved the instant revision petition challenging the validity of the order dated 6-5-1967, by which the District Magistrate had withdrawn the case from the file of the Sub-Divisional Magistrate and had placed it on his own. It was alleged in the petition that all the proceedings that had taken place after 6-5-1967 were without jurisdiction and as such void, The prayer made was that the case should be sent back to the Sub-Divisional Magistrate of Sadar for disposal according to law.
3. Shri N. L. Choudhary urged for the petitioner Sushila Ghosh that Section 133 of the Code forms part of Chapter X and that the scheme of various sections of that Chapter indicates that the proceedings instituted under Section 133 have to be dealt with right from the beginning until they conclude by the Magistrate who begins the enquiry and by none else. In other words, tersely put, the point canvassed was that Section 528 of the Code has no applicability to the proceedings initiated under Chapter X of the Code. In support of this contention he placed reliance on the authority reported in Jhatu Charan Das v. Bhanu Chandra Das : AIR1956Cal220 . Shri H. Dutta, representing Was Deb, submitted, on the other hand, that Section 528 covers the subject of transfer of 'cases' and that the expression 'cases' is wide enough to include a case under Section 133 of the Code. He invited my attention to a number of authorities according to which the security proceedings under Chapter VIII and the proceedings under Sections 144, 145, 488 and 491 of the Code have been declared to be cases and as such liable to transfer under Section 528. He, therefore, assailed the correctness of the view taken in the case of Jhatu Charan Das by the Calcutta High Court.
4. Shri Dutta submitted further that the order of transfer dated 6-5-1967 had been made at the request of the parties' counsel and as such the revision petition merited dismissal on that score alone. Shri N. L. Choudhury conceded that the parties' counsel had agreed to the transfer of the case on 6-5-1967, but that fact, he urged, could not confer jurisdiction on the transferee Magistrate, namely, the District Magistrate, Tripura to deal with the case. I agree that if the transfer order dated 6-5-1967 is bad in law, then the mere consent of the parties' counsel to the transfer of the case could not confer jurisdiction on the District Magistrate to deal with it. A joint prayer by the parties to a case that it should be tried by a court cannot confer jurisdiction on that Court, if in terms of the law that Court cannot have jurisdiction in the matter. Hence, the objection of Shri Dutta against the maintainability of the petition founded on the request made by the present petitioner's counsel to the transfer of the case on 6-5-1967 cannot by itself foil the revision petition though it may be correct that in the context of that request the challenge to the transfer order may not stand the test of the principles of ethics in the Gandhian sense.
5. This brings us to the consideration of the main point in controversy, namely, whether Section 528 applies to proceedings under Section 133. Sub-section (2) of Section 528 provides, inter alia, that any District Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. The expression 'any case' used in the sub section is obviously of widest amplitude, and since that expression has been interpreted to include all varieties of cases that crop up under the various provisions of the Code, say for example, security proceedings under Chapter VIII of the Code and proceedings under Sections 144, 145. 488 and 491 of the Code, if, the Legislature meant to make any exception relating to cases under Chapter X of the Code it was not difficult for it to say so in explicit terms. The language of Sub-section (2) of Section 528 does not admit of the narrow interpretation canvassed on behalf of the petitioner. The provisions of Sub-section (2) have been in existence in their present form right from the year 1898 when the Code came into force in India. Excepting the aforementioned Calcutta authority of 1956, there is no other decision holding that that sub-section does not apply to cases under Chapter X of the Code. It is, therefore, proper that the ratio of the decision of the Calcutta High Court should be looked into for appreciating its correctness or otherwise.
6. The facts of the Calcutta case are that the conditional order was made by the Sub-Divisional Magistrate and he required Jhatu Charan, the person proceeded against, to appear before another Magistrate Shri A. D. Bagchi for showing cause, if any, against that order. Shri Bagchi examined a number of witnesses under Section 139A of the Code and on reaching the conclusion that there was no substantial evidence to support the denial by Jhatu Charan of the public right claimed by Bhanu, Chandra Das, he directed that the case shall proceed in terms of Section 137 of the Code. However, before anything further could be done Shri Bagchi was transferred and in consequence the case was withdrawn from his Court by the Sub-Divisional Magistrate and transferred to the file of Shri A. K Banerjee. another Magistrate at the same station. In course of time, Shri Banerjee made absolute the conditonal order issued by the Sub-Divisional Magistrate. It is against this order that Jhatu Charan went in revision to the High Court. Debabrata Mookerjee, J., held that the order by which the Sub-Divisional Magistrate withdrew the case from Shri Bagchi and transferred it to Shri Banerjee lacked legal sanction and as such all the proceedings that took place before Shri Banerjee and the final order made by him stood vitiated. Mookerjee, J., posed the following question in para 6 of the report:
Question then arises whether during the pendency of proceedings under Section 133 it is open to the Sub-Divisional Magistrate or the District Magistrate to transfer the proceedings to another Magistrate. The power of transfer is given by Section 192, Criminal P.C..
This extract from the judgment indicates that the transfer of the case had probably been ordered by the Sub-Divisional Magistrate under Section 192 of the Code. Mookerjee, J., held, while interpreting that section, that 'the power of transfer under Section 192 is limited to a case of which cognizance has been taken'. 'That means and implies', he added, 'the commission of an offence of which cognizance has been taken'. However, he observed further, 'But in proceedings under Section 133, Criminal P. C., there is no question of taking cognizance of an offence. That being so. Section 192 cannot possibly be called in aid to support an order of transfer of proceedings under Section 133, Criminal P. C.' Having reached that conclusion, in regard to which I need make no comment, because that question does not arise for determination in the present petition since the transfer here was made under Section 528 and not under Section 192, nor was it argued before me, Mookerjee, J., proceeded to observe that, 'Apart from these conditions it must be held that proceedings commenced under Section 133. Criminal P. C., before a Magistrate have to be concluded before him. The reason for such procedure is not far to seek'. He then concluded as follows:
Obviously, the legislature felt that where a person is going to be precluded from exercising his rights on grounds of public health, safety or convenience all matters appertaining to the questions must be heard and disposed of by one and the same Magistrate who has had the advantage of seeing witnesses and hearing evidence during the two stages in which proceedings under Section 133 of the Code divide themselves.
I think, with all respect to Mookerjee, J. that this reasoning only begs the question. The precise point for determination before Mookerjee, J., was whether the Legislature has prescribed anywhere in the Code that a case under Section 133 of the Code cannot be transferred from one Magistrate to another. Instead of finding a reply to that point from within the body of the Code. Mookerjee, J., ascribed an intention to the Legislature to support the finding that a case under Section 133 has necessarily to be disposed of by the Magistrate who starts with it after the conditional order is made.
7. Towards the close of para 6 of the judgment it is again mentioned:
It is, therefore, quite understandable why the Legislature thought it fit that in a case like this, the entire proceedings must be heard and disposed of by one and the same Magistrate; and that being so, the scheme of Chapter X repels the notion of transfer so that the proceedings may be effectively prevented from being dealt with in a piecemeal fashion. Even the wide words of Section 528(2) of the Code cannot be allowed to prevail and interfere with the scheme of Chapter X of the Code.
The last sentence of this excerpt appears to be in the nature of obiter dictum for the report does not indicate that the transfer of the case to Shri Banerjee had been made under Section 528 (2). This latter conclusion can be supported on the footing that the entire discussion of the question debated in the High Court was made in reference to Section 192, and Section 528 (2) was mentioned for once and only in that last sentence. Further, the opening word 'Even' of that sentence indicates that the provisions of Section 528(2) were not relied upon by the petitioner before the High Court in support of the proposition canvassed. However, I do not want to distinguish the Calcutta case from the one in hand on that basis.
8. Earlier in para 5 of the report it had been mentioned by Mookerjee, J., that if for any reason the Magistrate named in the conditional order is not available to continue the proceedings, the proceedings cannot be transferred to another Magistrate to be dealt with by him. This finding of Mookerjee, J., would lead to the eventuality that if the Magistrate who started the inquiry in the case cannot for any reason continue with the same, then the case would remain hanging and not taken to its logical conclusion. I think this would be much too non-pragmatic an approach to commend itself either to Legislature or to courts. It is the inalienable right of the party instituting a case under Section 133 to insist and demand that the claim made by him should be decided one way or the other. The Legislature could not have contemplated with equanimity that despite the comprehensive nature of the Code a case under Section 133 may remain undetermined. One can visualise a large number of contingencies, or even exigencies, where the Magistrate who began hearing the case under Section 133 may not be able to conclude it. To cite only a few, the transfer of the Magistrate may become inevitable, he may retire, or he may be taken ill so grievously that he is forced to proceed on long leave. In neither of such contingencies, if the view of Mookerjee, J., is to prevail, the case of the unfortunate party coming to court under Section 133 would reach its destined end. Such practical difficulties, apart from the fact that there is no indication, explicit or by implication, of the Legislative intendment that Section 528 does not apply to a case under Chapter X of the Code, militate in a telling manner against the contention canvassed by Shri N. L. Choudhury on behalf of the petitioner. Another relevant consideration would bring out strikingly the untenability of that proposition. Supposing, the Magistrate after having been seized with the case develops personal interest in its outcome, and the party aggrieved by that attitude of the Magistrate wants its transfer and moves the Sessions Judge or the High Court for the purpose. Shall the Sessions Judge or the High Court hold hands even after being satisfied that the grievance voiced is genuine? The answer to the question can be in the negative only if the language of Section 528, or any part of Chapter X, of the Code constitutes an insurmountable hurdle. However, I do not find any such hurdle in any of those provisions. Hence, I find it difficult to accept the view taken in the Calcutta authority.
9. It would follow that the order dated 6-5-1967 made by the District Magistrate is not proved to suffer from any legal or other infirmity. That order being perfectly justified in law, the present petition must fail as a consequence. Hence, I reject it.