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Emperor Vs. Babu Hansanali Mujawar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 32 of 1928
Judge
Reported in(1928)30BOMLR653
AppellantEmperor
RespondentBabu Hansanali Mujawar
Excerpt:
.....of the third class magistrate, pen. the third class magistrate completed the trial and convicted the accused. on application by the accused :-;that the case fell under section 529, clause (f), of the criminal procedure code, and that the first class magistrate having acted bona fide the order of transfer should not be set aside merely on the ground that he was not empowered to transfer the case.;where a charge under section 147 of the indian penal code omits to mention the common object, the conviction need not be set aside on that ground alone, where the omission has not prejudiced the accused or resulted in a failure of justice. - - the first class magistrate was not empowered by law to transfer the case to the third class magistrate, but he erroneously and in good faith did so..........falls under clause (f) of section 529, criminal procedure code. the first class magistrate was not empowered by law to transfer the case to the third class magistrate, but he erroneously and in good faith did so transfer it. there is nothing to show that the magistrate did not believe that ha had power to transfer; and we should, in the absence of anything to the contrary, assume bona fides. accordingly his proceedings are not to be set aside merely on the ground of his not being so empowered. that, in our opinion, means that his order of transfer should not be treated as so invalid as to prevent the third class magistrate, who took cognizance upon the transfer, from having jurisdiction to try the accused.2. mr. joshi for the applicant contends that the case falls under clause (p) of.....
Judgment:

Fawcett, J.

1. It is objected that the First Class Magistrate, having had the case transferred to him by the Sub-Divisional Magistrate, had no power to transfer the case again to the Third Class Magistrate who finally disposed of it, There is no doubt authority for this proposition in Bashir Husain v. Ali Husain I.L.R.(1913) I But assuming that this is so, still in our opinion the case is one that falls under Clause (f) of Section 529, Criminal Procedure Code. The First Class Magistrate was not empowered by law to transfer the case to the Third Class Magistrate, but he erroneously and in good faith did so transfer it. There is nothing to show that the Magistrate did not believe that ha had power to transfer; and we should, in the absence of anything to the contrary, assume bona fides. Accordingly his proceedings are not to be set aside merely on the ground of his not being so empowered. That, in our opinion, means that his order of transfer should not be treated as so invalid as to prevent the Third Class Magistrate, who took cognizance upon the transfer, from having jurisdiction to try the accused.

2. Mr. Joshi for the applicant contends that the case falls under Clause (p) of Section 530, Criminal Procedure Code. But this is not a casa of a Magistrate having no legal power to try the accused for the offence in question. He had that power, but the proceedings are merely alleged to be vitiated because of the order of transfer that I have mentioned, That being so, the transfer of the case is the vital defect, and not the trial of the offender. We do not think, therefore, that there are sufficient grounds for our interference on that point.

3. As regards the second point Mr. Joshi alleges that, as there was no common object specified in the charge, the trial is vitiated, and in support of this he cites Sabir v. Queen-Empress

Mirza, J.

4. I agree.


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