Ramachandra Raju, J.
1. This Criminal Miscellaneous Petition is filed to quash the proceedings in M. C. No. 4 of 1974 on the file of the Court of the Sub-Divisional Magistrate, Chittoor.
2. The petitioners are respondents 1 to 6 and 8 to 20 in M. C. No. 4 of 1974 referred to above against whom notices were issued under Section 112 of the Code of Criminal Procedure (old) by the Sub-Divisional Magistrate Chittoor, to show cause why they should not be ordered to execute a bond for a sum of Rs. 500 with two sureties for a like sum for keeping the peace for a period of one year, alleging several wrongful acts against them and that they are likely to commit breach of the peace or disturb the public tranquillity. The information under Section 107. Code of Criminal Procedure, was laid before the Sub-Divisional Magistrate, Chandragiri by the Inspector of Police, Tirupati (Rural) and the case was transferred by the District Magistrate, Chittoor from the file of the Sub-Divisional Magistrate, Chandragiri, to the file of the Sub-Divisional Magistrate, Chittoor for the reason that at that time the Sub-Divisional Magistrate, Chandragiri was not conferred with the powers of a First Class Magistrate and therefore he was not competent to deal with the matter. Admittedly neither the petitioners reside nor the wrongful acts complained of were done within the territorial jurisdiction of the Sub-Divisional Magistrate, Chittoor. Therefore, normally he is not competent to take cognizance of the matter and enquire into it.
3. The objection of the petitioners is that the District Magistrate, Chittoor, has no jurisdiction to transfer the proceedings from the file of the Sub-Divisional Magistrate, Chandragiri to the file of the Sub-Divisional Magistrate, Chittoor without himself taking cognizance of the case before transfer.
4. In order to understand the objection raised by the petitioners whether the District Magistrate Chittoor, has power to transfer the case in the manner he did, it is necessary to examine the relevant provisions of the Code of Criminal Procedure (old). Section 190 of the Code of Criminal Procedure deals with taking cognizance of offences by Magistrates. It is provided under Sub-section (1) of Section 190, that except what was mentioned therein, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate and any Magistrate specially empowered in that behalf, may take cognizance of any offence... (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer : and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. It is provided under Sub-section (2) of that section that the State Government, or the District Magistrate subject to the general or special orders of the State Government may empower any Magistrate to take cognizance under Sub-section (1), Clause (a) or Clause (b) of offences which he may try or commit for trial. Section 192 of the Code of Criminal Procedure deals with transfer of cases by Magistrates. We are more concerned with this provision in dealing with the matter in the present petition. Therefore it is convenient to extract the same here.
192. (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 Magistrates 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.
A reading of the above section would show that Sub-section (2) of Section 192, Cr. P. C. has no application here because it deals with the competency of the District Magistrate to empower any Magistrate of the First Class who has taken cognizance of any case to transfer it for inquiry or trial to any other Magistrate in his district who is competent under the Code to try the accused or commit him for trial, and the present case is not one where the Sub-Divisional Magistrate, Chandragiri, after the case was taken cognizance of by him, was empowered by the District Magistrate to transfer it to the Sub-Divisional Magistrate, Chittoor.
5. We are more concerned in this case with Sub-section (1) of Section 192 of the Code of Criminal Procedure since the District Magistrate. Chittoor passed the orders of transfer of the case which was not taken cognizance of by the Sub-Divisional Magistrate, Chandragiri, A plain reading of this sub-section would clearly show that a District Magistrate can transfer, for inquiry or trial to any Magistrate subordinate to him any case of which he has taken cognizance. Therefore, before he could transfer a case under this provision, it must be one of which he has taken cognizance. The present case does not appear, and it is not contended so for the State, that the District Magistrate after applying his mind to the facts of the case and after satisfying himself that there is a case for proceeding further in the matter passed any order in that respect. He has merely transferred the case to the file of the Sub-Divisional Magistrate. Chittoor on the ground that the Sub-Divisional Magistrate, Chandragiri before whom the information was laid, was not competent to deal with the matter as he was not yet conferred with the powers of a first class Magistrate. A mere passing of an order of transfer cannot foe taken as 'taking cognizance of the case and then making the transfer', because 'taking cognizance of a case by a Magistrate' means 'the application of the mind of the Magistrate to the facts of the case to come to a conclusion whether there is a case to further proceed in the matter, for issuing notices to the concerned etc.' Admittedly the District Magistrate did not do anything of the kind here. He did not record any opinion as to the apprehended breach of the peace complained of.
6. The Supreme Court in Gopal Das v. State of Assam AIR 1961 SC 986 : (1961) 2 Cri LJ 39 expressed its view on both the matters discussed above The Supreme Court held that the transfer of a case contemplated under Section 192 is only of cases in which cognizance of an offence has been taken. If the District Magistrate has not taken cognizance of any offence when a complaint is presented to him, his sending the complaint to another Magistrate for disposal will not be a transfer of the case under Section 192. The sending of the complaint in such a case is by way of an administrative action. A similar view was also taken by the Madras High Court in an earlier decision in In re Nagireddy. AIR 1918 Mad 555. In that case the police reported to the District Magistrate of Nellore that they apprehended breach of the peace from certain parties and requested him to take proceedings under Section 107 of the Code of Criminal Procedure, The District Magistrate, without recording any opinion as to the apprehended disturbance of the peace, transferred the case to the file of the Headquarters Deputy Magistrate, Nellore, within whose jurisdiction neither of the parties resided. The Headquarters Deputy Magistrate then issued a notice under Section 107, Cr. P. C, to the petitioners. In the circumstances the Madras High Court held that the order of transfer was bad because the District Magistrate could not be said to have taken cognizance as provided under Section 192, Cr. P. C. so as to enable him to transfer it to a Subordinate Magistrate.
7. Therefore, it is clear that a District Magistrate cannot transfer a case to any Magistrate subordinate to him who has no jurisdiction over the matter, before the District Magistrate himself takes cognizance of the case. By a mere administrative order he is not competent to do so. By an appropriate order he must first take cognizance of the case by applying his mind for the need to further proceed in the matter, before he can transfer the case to a Magistrate subordinate to him if the latter has no jurisdiction over the matter. Accordingly the petition is allowed and the proceedings before the Sub-Divisional Magistrate, Chittoor are quashed. This order cannot, however, be taken as precluding any authority to take any appropriate action further in the matter.