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Jadab Chandra Sarkar Vs. Sashi Mohan Deb Barma - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJadab Chandra Sarkar
RespondentSashi Mohan Deb Barma
Excerpt:
.....being satisfied that there was a prima facie case made out under section 447, 427, 143 and 109 against 23 persons including the petitioner, he directed the issue of summons to them on 22-2-1961. against the said order the petitioner went up in revision to the sessions judge in criminal motion no. mulla for him to issue summons to the 23 persons, i shall not interfere at this stage as the magistrate as well as the sessions judge have found that there was legal evidence. but on the swam statement of the complainant as well as on the evidence of 3, p. it is not for this court at this stage to decide whether the said evidence was reliable or not. where the magistrate is satisfied that there was sufficient ground for proceeding, the high court would not ordinarily interfere at that stage...... t.n.r. tirumalpad, j.c.1. this is an application in revision against the order of shri w. u. mulla, magistrate first class dated 22-2-1961 summoning 23 persons including the petitioner under section 204 cr.p.c. to take their trial under section 447, 427, 143 and 109, i. p. c.2. this case arose out of a complaint filed by the respondent on 184-1960 against 35 persons including the petitioner under section 147, 379 and 427 i.p.c. before the subdivision magistrate, sadar. the s. d. m. forwarded the complaint to shri h. r. choudhury magistrate first class for disposal. shri h. r. choudhury magistrate took the sworn statement of the respondent under section 200 cr.p.c. on 194-1960 and he sent the complaint petition to the circle officer who is a magistrate for enquiry and report. the circle.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is an application in revision against the order of Shri W. U. Mulla, Magistrate first class dated 22-2-1961 summoning 23 persons including the petitioner under Section 204 Cr.P.C. to take their trial under Section 447, 427, 143 and 109, I. P. C.

2. This case arose out of a complaint filed by the respondent on 184-1960 against 35 persons Including the petitioner under Section 147, 379 and 427 I.P.C. before the Subdivision Magistrate, Sadar. The S. D. M. forwarded the complaint to Shri H. R. Choudhury Magistrate first class for disposal. Shri H. R. Choudhury Magistrate took the sworn statement of the respondent under Section 200 Cr.P.C. on 194-1960 and he sent the complaint petition to the Circle Officer who is a Magistrate for enquiry and report. The Circle Officer appears to have submitted a report on 4-6-1960 which was against the complainant's case. Then the respondent appears to have moved the S. D. M. for having this case taken up along with certain other connected cases in the same Court. The S. D. M. called for the records from the Magistrate. But after perusing the records, he passed an order on 9-6-1960 that as there was no application for transfer under Section 528 Cr.P.C. he should net interfere at that stage as the matter was in the state of enquiry under Section 202 Cr.P.C. Than the matter came up again before Shri H. R. Choudhury and the respondent filed a narajl petition challenging the report of the Circle Officer. But Shri H. R. Choudhury was unable to deal with the case as he was engaged in Treasury work.

3. Thereupon the respondent again moved the S. D. M. this time under Section 528(2) Cr.P.C. on 16-9-1960 for withdrawing the case from the file of Shri H. R. Choudhury and for transferring it to another Court. But the S. D. M. passed an order that there was no ground for transfer flute curiously enough he forwarded the petition Itself to Shri H. R. Choudhury for favour of disposal. Then the respondent moved the Sessions Judge in Criminal Motion No. 138 of 1960 for transfer and the Sessions Judge ordered the transfer of the case on 7-1-1961 to the file of Shri W. U. Mulla. Tha records appear to have been received by the S. D. M. from the Sessions Court, on 24-1-61. Thereupon the S. D. M. passed an order on that date that as per order of the Sessions Judge, Tripura, the case was withdrawn to his file and transferred to the file of Sri W. U. Mulla. Thereafter Sri W. U. Mulla examined 3 P. Ws. and being satisfied that there was a prima facie case made out under Section 447, 427, 143 and 109 against 23 persons including the petitioner, he directed the issue of summons to them on 22-2-1961. Against the said order the petitioner went up in revision to the Sessions Judge in Criminal Motion No. 26 of 1961. But the Sessions Judge dismissed the revision on 28-124961. Thereupon the petitioner has come up to this Court.

4. What he has pointed out in the revision petition is that the evidence taken by the Magistrate Shri W. U. Mulla did not warrant the issue of summons to the 23 persons, that the Circle Officer's report was also against the complaint and further that the complainant's sworn statement itself did not refer to the 23 persons against whom summonses were Issued and that therefore there was no prima facie case for issuing the process. In addition to this, it was argued before me that the S. D. M. had taken cognizance of this case on 18-4-1960 and had transferred the case without taking the sworn statement of the complainant to Shri H..R. Choudhury under Section 192 Cr.P.C. that this was done illegally and against the provisions of Section 200, that Shri H. R. Choudhury, therefore, did not get season of the case as required under the Criminal Procedure Code, that he cannot have taken the sworn statement of the respondent, that even subsequently, the S. D, M. did not have the authority under Section 528 (2) Cr P C. to withdraw the case to his own file and to transfer it to Shri W. U. Mulla on 24-1-1961 and that therefore the entire, proceedings before. Shri W. U. Mulla were without jurisdiction and should be quashed.

5. On the question of fact namely, as to whether there was evidence before Shri W. U. Mulla for him to issue summons to the 23 persons, I shall not interfere at this stage as the Magistrate as well as the Sessions Judge have found that there was legal evidence. The original complaint was against 35 persons. But on the swam statement of the complainant as well as on the evidence of 3, P. Ws., the Magistrate found that there was sufficient ground for proceeding only against 23 persons. It is not for this Court at this stage to decide whether the said evidence was reliable or not. This has been pointed out by the Supreme Court in the decision R. P. Kapur v. State of Punjab : 1960CriLJ1239 . It is only in a case where it is necessary to prevent the abuse of the process of Court or otherwise to secure the ends of Justice that the High Court would exercise its inherent jurisdiction under Section 561-A to quash the proceedings before a Magistrate. Where the Magistrate is satisfied that there was sufficient ground for proceeding, the High Court would not ordinarily interfere at that stage. 1 see no ground to disagree with the Magistrate in having issued summons to the 23 persons.

6. Coming to the points of law argued before me i am unable to agree with the petitioner that the S. D. M. in forwarding the complaint to Shri H. R. Choudhury for disposal had taken cognizance of the case and transferred it under Section 192 Cr.P.C. to the latter Magistrate. The S. D. M. cannot be said to have taken cognizance of the case on 184-1960 as he did not apply his mind to the case and as he did not do anything further for proceeding with the case in accordance with the provisions of Chapter XVI, XVII, XVIII or XXI of the Code. I have held this in my decision in Mohan Choudhury v. State, Cri. Revn. Case No. 11 of 1961 : AIR 1964 Tripura 65, following the decisions of the Supreme Court Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 and Narayandas Bhagwandas Madhavdas v. State of West Bengal : 1959CriLJ1368 .

Hence, it cannot be said that the S. D. M. had taken cognizance of this case. Nor can it be said that the transfer to Shri H. R. Choudhury was made under Section 192 Cr.P.C. as such transfer can be made only of a case of which the S. D. M. has taken cognizance. When the S. D. M. forwarded this case to Shri H. R. Choudhury for disposal, it can at best be said that this was an administrative transfer and that the complainant was simply directed to appear before Shri H. R. Choudhury, Magistrate who will deal further with the complaint. Thus it was Shri H. R. Choudhury who took cognizance of this case by examining the complainant on oath under Section 200 and by proceeding under Section 202 Cr.P.C. and directing Investigation by the Circle Officer. Thus Shri H. R. Choudhury was legally Invested with the case and the proceedings before him cannot be characterised as illegal.

7. The next contention of the petitioner that the further transfer of the case to the file of Shri W. U. Mulls was made by the S. D. M- is based on a misapprehension. The petitioner did not know that the transfer was ordered by the Sessions Judge himself as the transfer took place even before summonses had been issued to the petitioner and he was, therefore, ignorant of this fact. The petitioner appears to have been under the Impression that it was the S. D. M. who ordered the transfer of this case to the file of Shri W. U. Mulla. In actual fact, i find that after the order of transfer by the Sessions Judge on 7-1- 1961 to the file of Shri W. U. Mulla, Magistrate, the S. 0. M. has passed a further order on 24-1-1961 said to be based on the order of the Sessions Judge that the case was withdrawn to the file of the S. D. M. himself and retransferred to the file of Shri W. U. Mulla. This order of the S. D. M, on 24-1-1961 was a meaningless order and should not have been made. When the Sessions Judge himself has ordered the transfer to the file of Shri W. U. Mulla, the S. D. M. had no authority to pass the order withdrawing the case to his own file and retransferrlng it to the; file of Shri W. U. Mulla. The intermediation of the S. D. M. was unnecessary at that stage as even without it the case stood transferred to Shri W. U. Mulla by the order of the Sessions Judge.

The argument of the petitioner was based on this transfer order of the S. D. M. made an 24-1-1981. His argument was that under Section528(2) Cr.P.C. the S. 0. M can withdraw only a case which he has made over to any Magistrate subordinate to him and that as in this case, the S. D. M. had made over the case to Shri H. R. Choadhury even before taking cognizance of it and as Shri H. R. Choudhury had taken cognizance of the case, the S. D. M. cannot withdraw the said case from Shri H. R. Choudhury under Sec, 528(2). The petitioner did not realise that this argument was quite opposed to his earlier argument that the S. D. M. had taken cognizance of the case before transferring it to Shri H. R. Choudhury. However, I have found that the S. D. M. had transferred the complaint to Shri H, R. Choudhury even before taking cognizance of it and that the transfer was not under Section 192 Cr.P.C. I cannot accept the petitioner's argument that a S. D. M. can withdraw from a Magistrate subordinate to him only cases which he has taken cognizance of and transferred under Section 192 Cr.P.C. to the subordinate Magistrate What Section 528(2) says is that the S. D. M. can withdraw any case from a subordinate Magistrate which will include a case which the Subordinate Magistrate himself had talon cognizance of it is a mistake to think that the S. D. M. can only withdraw cases which he has taken cognizance of and transferred under Section 192 to the Subordinate Magistrate, Hence, there would have been nothing wrong in this S. D. M. withdrawing the case from Shri H. R. Choudhury and transferring it to Shri W. U. Mulla. But that was unnecessary in the present case as the transfer had already been ordered by the Sessions Judge. Shri W. U. Mulla did not get the case in his file by the said transfer made by the S. D. M and the unnecessary transfer by the S. D. M. did not, in any way, affect the matter in view of the transfer by the Sessions Judge. There is thus no point in this argument of the petitioner. The revision petition fails and it is accordingly dismissed.


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