T.N.R. Tirumalpad, J.C.
1. The respondent in this case filed a complaint before Shri S.N. Roy Cboudhury, the S.D.M. of Dharmanagar against the petitioner Aswini Kumar Das and another Nalini Kumar Das accusing them of criminal trespass and assault and against Nalini Kumar Das further for outraging the,. modesty of complainant's sister-in-law. The S.D.M. took cognizance of the case and transferred the case to a second class Magistrate Shri S.R. Chakravorty. He dealt with the case for sometime and examined the complainant and 2 P. Ws. and while the matter was pending before him for further trial, Shri A. Bhattacherjee who had become S.D.M. by then withdrew the case to his own file and after the examination of further P. Ws. he framed charges under Sections 447 and 352 against the petitioner and Nalini Kumar Das and a further charge under Section 354 Indian Penal Code against Nalini Kumar Das.
Then Shri A. Bhattacharjee ceased to be the S.D.M. but continued to be the magistrate, first class at Dharmanagar. He proceeded with the trial of the case as first class magistrate and all the 4 P. Ws. who had already been examined, were further cross-examined for the defence and' as the prosecution closed its case, the accused were examined under Section 342 and time was given for examination of D. Ws. After some more adjournments, the defence stated on 9-12-59 that they would not examine any D. Ws, and the case was then posted for arguments to 2-2-60. One is unable to understand why in a case where only 4 P. Ws. were examined the case should have been adjourned by nearly 2 months for arguments. This is only a sample of the way in which cases are unnecessarily adjourned by magistrates. Even on 2-2-60 arguments were not heard and it was again adjourned to 10-3-60.
2. On 10-3-60, Sri A. Bhattacharjee passed an order transferring the case to the file of another first class magistrate Shri W.U. Mulla for disposal. We are unable to know the reasons for this transfer. All that remained was to hear arguments and to deliver judgment and the magistrate who should normally do this is the magistrate who tried the case. Still Shri A. Bhattieharjee who was not empowered to transfer the case under Section 192 Criminal Procedure Code transferred it to Shri W.U. Mulla for disposal, Shri W.U. Mulla heard arguments on 15-3-60 and delivered judgment on 31-3-60 convicting the petitioner and Nalini Kamar Das and sentencing the petitioner to pay a fine of Rs. 15/- on each of the two charges under Sections 447 and 352 and Nalini Kumar Das Rs. 15/-under each of the three charges under Sections 447, 352 and 354 Indian Penal Code.
3. The petitioner and Nalini Kumar Das filed a revision before the Sessions Judge. But the Sessions Judge dismissed the revision petition on 25-7 1960. The petitioner alone has filed the present revision in this Court on 30-8-1960. It may also be mentioned that after the dismissal of the revision by the Sessions Judge when the papers went back to the magistrate's Court, the magistrate issued non-baliable warrant for the arrest of the petitioner and Nalini Kumar Das evidently for realisation for the fine and finally Nalini Kumar Das appeared in Court and paid the fine. But the fine was not realised from the petitioner as stay of realisation of the fine was passed by this Court.
4. The main contention raised by the petitioner in this revision petition, which was also raised before the Sessions Judge but negatived by him, was that Shri A. Bhattacharjee had no power to transfer the case after the closing of the oral evidence to Shri W.U. Mulla for hearing arguments and pronouncing judgment and that all subsequent proceedings before Shri W.U. Mulla were without jurisdiction and hence, the conviction and sentence of the petitioner cannot stand. The learned Sessions Judge found that Shri A. Bhattacharjee had no power to transfer the case, but he was of opinion that the said irregularity would be cured by Section 529, Clause 2 Criminal Procedure Code and that the subsequent proceedings before Shri W.U. Mulla will not be vitiated. There is no Clause 2 for Section 529 Criminal Procedure Code. Evidently the Sessions Judge meant Section 529 (f) which provides that if any magistrate not empowered by law to transfer a case under Section 192 Criminal Procedure Code erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Perhaps, the learned Sessions Judge was of opinion that Shri A. Bhattacharjee transferred this case under Section 192, Criminal Procedure Code erroneously in good faith. But his order does not show that he felt that the case was transferred under Section 192 or that it was done erroneously in good faith.
5. All transfers of cases under the Criminal Procedure Code are not done under Section 192 Criminal Procedure Code. There is provision under Section 526 and Section 528 Criminal Procedure Code for transfer of cases. Such transfers can be made either before or after inquiry or trial has commenced. There are again provisions like Sections 346 and 349 Criminal Procedure Code for transfer of cases after the inquiry or trial has begun. The transfer under Section 192 Criminal Procedure Code is by a magistrate who has taken cognizance of a case to another magistrate for inquiry or trial. Necessarily, such transfer must be for inquiry or trial which means that it must be before the inquiry or trial has commenced. Section 192 Criminal Procedure Code is as follows:
(1) Any Chief Presidency Magistrate, District Magistrate;or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial to any magistrate subordinate : to him.
(2) Any District Magistrate may empower any magistrate of the first class, who has taken cognizance of any case, to transfer it for inquiry or trial to any other specified magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such magistrate may dispose of the case accordingly.
6. It will be seen from Sub-divisional magistrate can transfer any case of which he has taken cognizance to any magistrate subordinate to him for inquiry or trial. That does not apply to the present case as Shri A. Bhattacharjee was not the Sub-divisional magistrate and Shri W.U. Mulla also a first class magistrate was not subordinate to Shri A. Bhattacharjee. Even if Shri A. Bhattacharjee thought that he was the Sub-divisional magistrate and transferred the case, such transfer cannot be said to have been made erroneously in good faith within the meaning of Section 529 (f) Criminal Procedure Code. Section 3 of the General Clauses Act, 1897, defines 'good faith' as follows: A thing shall be deemed to be done in 'good faith' where it is done in fact honestly, whether it is done negligently or not. 'Good faith' as defined in Section 52 Indian Penal Code however requires that there must be due care and attention. Even if we take the definition in the. General Clauses Act to be applicable and hold that there was good faith, can it be said that the transfer was done erroneously?
7. When we turn to Section 192, Clause (2) Criminal Procedure Code we find that a District Magistrate can empower any first class magistrate who has taken cognizance of any case to transfer it for inquiry or trial to any other specified magistrate in the district who is competent to try the accused and commit him for trial. Here again the District Magistrate can empower only a first class magistrate who has taken cognizance of a case. Thus if Shri A. Bhattacharjee had taken cognizance of this case and if he had been empowered by the District Magistrate, he could transfer the case to another. But Shri A. 'Bhattacharjee was neither the magistrate who had taken cognizance of the case and he was not empowered by the District Magistrate to transfer the case. This case had been taken cognizance of by Shri S.N. Roy ChoudKury, Sub-divisional magistrate and he had transferred it to Shri Chakraborty, second class magistrate. When Shri A. Bhattacharjee became the S.D.M' he had transferred the case to his own file evidently acting under Section 528 (2) Criminal Procedure Code.
Thus Shri A. Bhattacarjee knew that the case was before him not because he took cognizance of the case, but because he had transferred it to his own file under Section 528 (2) Criminal Procedure Code. When he ceased to be the Sub-divisional magistrate, he cannot any longer transfer this case under Section 192 to any other magistrate and if he so transfers it even in good faith, can it be said to have been done erroneously?
8. The fact of the matter is that the magistrates are fully aware of the provisions of Section 529 (f) Criminal Procedure Code and they seem to be under the impression that whatever mistakes may occur regarding the transfer, the defect will be cured by Section 529 (f) and so they act consciously without due regard to the provisions, of law,
It is better that they understand that Section 529(f) is not intended to cure such cases of careless and negligent transfers, but only cases where the magistrate commits a bona fide error in transpiring a case in spite of due care and attention. 11 they transfer cases, knowing that they have no power to do so under the impression that Section 529 (f) Criminal Procedure Code will cure all such defects, they are mistaken.
9. In this connection, reference may be made to the decision Khudiram v. The State : AIR1953Cal573 , In that case, the good faith of the magistrate was not questioned. But in his explanation, he stated that the error, if any, was curable under Section 529 Criminal Procedure Code. The Calcutta High Court stated that the explanation would suggest that the learned magistrate was aware of the provisions of Section 192 and knowing that he did not have the power under Section 193 Criminal Procedure Code still transferred the case and that though there was no lack of good faith, the magistrate did not do so erroneously but consciously and that therefore the transfer will not be cured by Section 529 (f).
I may also refer to another decision Tulsibala Rakhit v. N.N. Khosal : AIR1953Cal109 . It was held in that decision that the words 'erroneously in good faith' in Section 529 do not protect deliberate negligence and wilful disregard of the clear provisions of the Code. In that case the magistrate's attention appears to have been drawn to the illegal order of transfer. But he stated that the order was cured under Section 529 (f) Criminal Procedure Code. Referring to this, the Calcutta High Court said that the High Court will not countenance such open and intentional violation of the law and subsequent invocation of Section 529 (f) Criminal Procedure Code to cure it when the magistrate knows what the correct position in law and procedure is and that such transfer was not erroneously in good faith and cannot be cured and protected by Section 529 (f) Criminal Procedure Code,
10. As I have said already, the magistrates being aware of Section 529 (f) seem to think that they can transfer in any manner they like and that all such transfers will be cured by Section 529 (1). It is my duty to inform the magistrates that such conscious disregard of the provisions of law will not be cured by Section 529 (f). It is only when the superior Court finds that a bona fide error has occurred in the transfer of the case in that the magistrate was not empowered by law to transfer under Section 192, that Section 529 (f) will be applied to 'cure the defect. It is better, therefore that the magistrates apply their mind properly in such cases and see that they do not pass illegal orders of transfer consciously or carelessly.
11. In our present case, the transfer was not snade under Section 192 Criminal Procedure Code at all and hence the application of Section 529 Criminal Procedure Code to cure the defect does not arise. I have already stated that transfer of cases under the Criminal Procedure Code is not confined to Section 192 alone, but can be made under certain other provisions of the Code. It is only where the magistrate transfers a case under Section 193 that the defect will be cured by Section 529 (f). The order of transfer itself does not show that Shri A. Bhattacharjee purported to act under Section 192. Again, under the said section, the transfer is alter taking cognizance 01 a case, but before the inquiry of trial has commenced. the transfer itself is to try the case. A case cannot be transferred under Section 192 after the trial has started. When once a magistrate starts a trial, he has got to complete the trial and deliver judgment in the case himself. He has no further power to transfer the case under Section 192 or under any other section. After the trial had started, the transfer of the case can be made from that magistrate only by the High Court under Section 526 Criminal Procedure Code or by the Sessions Judge or the District Magistrate of the Sub-divisional Magistrate under Section 528 Criminal Procedure Code. There are certain other provisions in the Criminal Procedure Coda like Section 346 and Section 349 Criminal Procedure Code which relate to cases after the trial had started and the procedure is prescribed therein as to what a magistrate should do under the circumstances. It will be seen from the said sections that he cannot himself transfer such cases.
There is again Section 350 Criminal Procedure Code wnich applied to a case after the trial Had started. Under Section 350 when a magistrate after having recorded evidence either in part or in whole ceases to exercise jurisdiction therein and is succeeded by another magistrate, the succeeding magistrate may act on the evidence so recorded by his predecessor. The words used in Section 350 are ceases to exercise jurisdiction therein'. Such ceasing cannot be by the transfer of the case by the trying magistrate himself. It relates to cases where the trying magistrate is transferred from his post and another magistrate is posted in his place. It also refers to cases of transfer under Section 526 or 528 Criminal Procedure Code. But it does not authorise a trying magistrate in the middle of a case to transfer it to another magistrate. The rule is that when once a magistrate has started the trial of a case, he has to conclude the trial and deliver judgment himself.
12. In this connection, reference may be made to the Full Bench decision Jhakar Abir v. Province of Bihar AIR 1945 Pat 98, in which Shearer, J., has stated as follows:
Where a Court has jurisdiction to try an offence, it is, as a rule, immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court which was not empowered to make the order of transfer. Clauses (e) and (f) of Section 529 Criminal Procedure Code provide that the commission of some irregularity of this kind prior to the commencement of the trial does not vitiate the trial itself.
I lay emphasis on the words 'Prior to the commencement of the trial'. I have been trying to show that the transfer of a case by a magistrate cannot be done by himself after he has started the trial of the case and examined witnesses. Any such transfer cannot be said to be under Section 192 Criminal Procedure Code. It is only transfers made under Section 192 Criminal Procedure Code and that too erroneously in good faith which will be cured by Section 529 (f) Criminal Procedure Code. Shri Bhatachariee did not purport to transfer this case under Section 192 Criminal Procedure Code and his transfer cannot also be treated as under that section, The transfer made by him was not under the provision of any section of the Criminal Procedure Code. Such a transfer will not be validated under Section 529 (f). In this case all that remained was to hear arguments and deliver judgment. This should have been done by Shri A. Bhattacharjee himself.
When he illegally transferred the case to Shri W.U. Mulla for hearing arguments and delivering judgment, the latter did not get the jurisdiction to do so, even though he may have been empowered to try such cases. The subsequent proceedings before Shri W.U. Mulla were, therefore, without jurisdiction and the conviction and sentence of the petitioner as well as of Nalinii Kumar Das were void and without jurisdiction. Section 537 Criminal Procedure Code will not apply to this case, as the irregularity amounts to lack of jurisdiction in Sri W.U. Mulla. Even though Nalini Kumar Das has not joined in filing this revision petition, when this Court finds on a perusal of the records that the entire proceedings before Shri W.U. Mulla were without jurisdiction, the conviction and sentence of Nalini Kumar Das has also to be set aside in this revision and the fine realised from him is ordered to be refunded.
13. The question next arises whether I should remand this case for further trial. I have perused the evidence in the case and the evidence discloses that the offences under Sections 447 and 352 Indian Penal Code were very petty offences and even the magistrate did not consider that any serious sentence was necessary. It appeared to be just one of those petty village quarrels and it has been pending in Courts for 41/2 years now. It assumed some gravity because Section 354 Indian Penal Code was added against Nalini Kumar Das and so warrant procedure had to be adopted.
On a perusal of the evidence under Section 354 against Nalini Kumar Das, I find that there was no assault or use of criminal force against. the sister-in-law of the complainant and the only evidence was that he removed his cloth and showed his private parts to the lady. This by itself will not amount to an offence under Section 354 Indian Penal Code. What Section 354 says is that there must be assault or use of criminal force intending to outrage or knowing it to be likely that thereby modesty will be outraged. Unless therefore there was assault or use of criminal force a person cannot be punished under Section 354. I am unable to understand the observation of the Sessions Judge that it is not necessary that there should be actual assault or use of criminal force to constitute an offence under Section 354 Indian Penal Code. Perhaps he means actual physical assault. Of course physical assault is not necessary. But assault or use of criminal force within the definitions in Section 350 or Section 351 Indian Penal Code will certainly be necessary.
There is no such evidence of assault or criminal force, but only of expourse of the private parts in the presence of others. This may amount to indecency, but not to an assault or use of criminal force. There is no necessity therefore to send this case to the magistrate for further inquiry, particularly as the offence took place more than 4 1/2 years ago.
14. The revision petition is, therefore, allowed and the convictions and sentences of the petitioner; as well as Nalini Kumar Das under Sections 447, 352 and 354 Indian Penal Code are set aside and they are acquitted. The fine realised from Nalini Kumar Das will be refunded to him.
15. Before I part with the case, I cannot help remarking about the conduct of this magistrate in issuing non-bailable warrants for the arrest of the petitioner and Nalini Kumar Das to realise the fine imposed by him against them, as soon as he received the records from the Sessions Court after the disposal of the revision petition filed by them. Actually Nalini Kumar Das was forced to appear in Court and the fine of Rs. 45/- was collected from him by the magistrate. This procedure is thoroughly illegal. The procedure for the realisation of fines imposed as sentences is laid down in Sections 386 and 387 of the Criminal Procedure Code. The procedure adopted by the magistrate is not the procedure prescribed under those sections. He had no right to issue warrant of arrest to realise the fines. The magistrate must realise that he is a Court and that Courts can act only according to law. The trouble is that these executive magistrates cannot get out of the feeling, when they work as magistrates, that they are the agents of the Government for the realisation of the dues to the Government and they treat this fine as dues to the Government which they think they can realise using their power as magistrates. If they use such power not in accordance with law, they will have to be called to account strictly. The sooner they put a stop to such collection of fines, the better it will be.