Basi Reddy, J.
1. This matter has been referred to a Division Bench by Krishna Rao, J. as he felt there is a conflict of views between two learned single Judges of this Court with regard to the powers of an Additional Sessions Judlge-cum-Additianal District Magistrate to transfer cases from one Magistrate to another which is the very question involved in these two connected Criminal Revision Cases. We will, first decide this matter by reference to the relevant provisions of the Code of Criminal Procedure and then try to resolve the conflict, if any.
2. The facts giving rise to these revision cases are as follows:
On the 25th November, 1958, one Kilaparthi Sanyasi, filed a complaint before the Judicial Second Class Magistrate, Salur, against Gandi Pudapunaidu and twenty-four others for offences under Sections 395, 148 and 324 I.P.C. alleging that the twenty-five persons had, by use of force, carried away a large quantity of grain belonging to him. The Magistrate took the case on file as P.R.C. No. 6 of 1958, recorded the sworn statement of the complainant but before proceeding further, chose to act under Section 202 Cri.P.C. and directed the Circle Inspector of Police, Bobbili, to investigate into the allegations in the complaint and submit his report. Accordingly the Circle Inspector of Police conducted an investigation and sent his report on the 30th January, 1959, to the effect that it was a false case in that the complainant had magnified a trivial incident arising out of the impounding of cattle into a serious case of dacoity.
3. About a month prior to the filing of the complaint referred to above, on a report given to the Station House Officer, Gajapathinagaram, about the same occurrence, against the same accused and in respect of the same offences, a case had been registered on the 25th October, 1958, as Crime No. 196 of 1958 and after a thorough investigation, the Station House Officer submitted his final report under Section 173 Cri.P.C. to the Judicial Second- Class Magistrate, Salur, stating that the rase was a fake one.
The Magistrate accepted the report and passed a final order thereon treating the case as false. This order was passed! after the records in P.R.C. No. 6 of 1958 had been sent by the Magistrate to the Circle Inspector of Police, Bobbili, for investigation under Section 202 Cri.P.C. and before the report of the Circle Inspector was received. Consequently when on the 30th January, 1959, the Magistrate received the report submitted by the Circle Inspector, he found himself in an embarrassing situation as he had already formed an opinion about the case by passing a final order under Section 173 Cri.P.C. on the report sent by the Station House Officer. Since he could not proceed further with P.R.C. No. 6 of 1958, the Magistrate addressed a communication on 9th February, 1959, to the Additional Sessions Judges Srikakulam, apprising him of the situation and requesting him to transfer the case to any other Magistrate,
4. Thereupon Sri D. Subba Rao, who was then the Additional Sessions Judge and also Additional District Magistrate, Srikakulam, passed the following ordler, withdrawing the ease from the Salur Magistrate and making it over to the Judicial II Class Magistrate, Bobbili.
Sub: Courts - Criminal - J.S.C. M's Court, Salur. P.R.C. 6/58 Transfer of - under Section 192 Cr.P.C. - Orders issued.
Read: Letter Dis. No. 182 dated 10-2-1959 of the J.S.C.M. Salur. Order: L. Dis. No. 46/59 S.C. dated 19-2-1959.
In the circumstances that the J.S.C.M., Salur, has recorded the final report in Cri. No. 196/58 treating the case as false, the P.R. Case 6/58 on the file of the J.S.C.M., Salur,. filed by the party for the same offence is withdrawn and made over to J.S.C.M., Bobbili, for disposal according to law. The case record is forwarded herewith to the J.S.C.M., Bobbili, who is requested to acknowledge its receipt.
Additional District and Sessions Judige.
5. Pursuant to this ordler, the case went before the Judicial Second Class Magistrate, Bobbili. However, by M.P. No. 31 of 1959, an objection was taken before that Magistrate on behalf of the accused that the transfer of the case by the Additional Sessions Judge was without jurisdiction in that under Section 528 Cri.P.C. the Sessions Judge alone is competent to transfer cases from one criminal court to another.
The learned Magistrate overruled the objection holding:
The Additional District and Sessions Judge, Srikakuilami, has dual functions, viz. one as Additional District and Sessions Judge and the other as Additional District Magistrate (Judicial). In my view, omission to mention the designation as Additional District Magistrate (Judicial) will not vitiate his proceedings. It must be deemed that when he has no power to transfer the case as Additional District and Sessions Judge and when he has power to transfer the case as Additional District Magistrate, he exercised powers under the latter capacity,
6. Cr.R.C. 230 is directed against this order while Cr.R.C 449 is against the order of transfer made by the Additional Sessions Judge; but the point involved in both, these revisions is one and the same.
7. Before dealing with the contentions advanced before us, we must say that the order passed by Sri D. Subba. Rao, contains several errors. Section 192 Cri.P.C. is quoted in the heading but having regard to the wording of the order, that could not have been the section under which Sri D. Subbarao was acting. He was obviously acting under Section 528 Cri.P.C. Thus is not disputed by the learned advocate for the petitioners.
Then again, the officer has signed the order as Additional District and Sessions Judge whereas in fact he was making the order in his capacity as Additional District Magistrate, Greater care and precision in passing the order would have avoided all the confusion and controversy in this case. We are, however satisfied that these are all curable irregularities which do not affect the validity of the order if in point of fact Sri D. Subbarao had the power to make the order. It is not the form of the order that matters but the power to make the order.
8. So the crucial question is ; Did Sri D. Subbarao have the power to withdraw the case from the Salur Magistrate and make it over to the Bobbili Magistrate? It is contended on behalf of the petitioners that since the order purports to have been made by Sri Subba Rao as Additional Sessions Judge, it was one made without jurisdiction inasmuch as under Section 528 (1-c), Cr.P.C. a Sessions Judge alone and none else has the power of transfer.
Sub-section (1-c) lays down: 'Any Sessions Judge, on an application made to him in this behalf, may, if he is of opinion that it is expethent for the ends of justice, order that any particular case be transferred from one criminal court to another criminal court in the same sessions division'.
But Sri Subba Rao was not acting under this subsection; he was evidently acting under Sub-section (2) of Section 528 read with Section 10(2), Cr.P.C. for, by virtue of a notification issued by the State Government he was also an Additional District Magistrate.
Sub-section (2) provides: 'Any Chief, Presidency Magistrate, District Magistrate or Sub-Divisional 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.' Thus this provision empowers a District Magistrate to withdraw a case from one Magistrate subordinate to him and refer it to another Magistrate to inquire into or try the same.
This power as well as any of the other powers of a District Magistrate under the Criminal Procedure Code may also be exercised by an Additional District Magistrate when such powers are conferred on him by the State Government under Sub-section (2) of Section 10 of the Code. That sub-section is in the following terms: 'The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the State Government may direct.'
9. Now, by G.O. Rt. No. 168 dated 21st January, 1958, Home (Cts. B) Department, Government of. Andhra Pradesh, Sri D. Subba Rao who was then the Additional District and Sessions Judge, Srikakulam, was appointed as Additional District Magistrate in that district and authorised to exercise all the powers of a District Magistrate. The notification reads:
In exercise of the powers conferred by Sub-section (2) of Section 10 of the Code of Criminal Procedure, 1898 (Central Act V of 1898), the Governor-of Andhra Pradesh hereby appoints the undermentioned Additional District and Sessions Judge to be Additional District Magistrate in the district noted against his name and directs that he shall exercise all the powers of a District Magistrate under the said Code and any other law for the time being in-force.
Sri D. Subba Rao... Srikakulam.
So that, as from 21st January, 1958, Sri D. Subba. Rao held two offices, namely, the office of the Additional Sessions Judge and that of the Addi tional District Magistrate, and in the latter capa city he could exercise all the powers exercisable by a District Magistrate under the Criminal Procedure Code. When, therefore, Sri D. Subba Rao passed the order in question on 19th February, .1958, it must be taken that he did so not qua Additional Sessions Judge but in his capacity as Additional District Magistrate. In this view he had unquestionably the power to make that order under Sub-section (2) of Section 528.
10. It is true that the notification reproduced above is defective in form in that it purports to appoint an Additional Sessions Judge as an Additional District Magistrate whereas Section 10(2) envisages the appointment of a Magistrate of the first! class to be an Additional District Magistrate.
This, however, does not undermine the legality of the notification as we are satisfied on the material placed before us that long before he was appointed as Additional District Magistrate and invested with powers under Section 10 (2), Sri D. Subba Rao had been appointed a Magistrate of the first class and bad been exercising magisterial powers.
11. It is next contended by the learned advocate for the petitioners that since all Magistrates appointed under Section 12, Cr.P.C. are subordinate to the District Magistrate, as laid down by Section 17(1) and are not subordinate to the Additional District Magistrate, the latter has no power under Section 528(2) to withdraw a case from one Second Class Magistrate and make it over to another Second Class Magistrate; as was done in this case.
This argument is fallacious. The question of subordination as mooted by the learned advocate, is not germane to the issue arising in this case. Here by virtue of the notification issued by the State Government, the Additional District Magistrate could exercise all the powers which a District Magistrate has under the Code and the power, to withdraw and make over cases under Section 528 (2) is one of such powers; in other words, the powers of the Additional District Magistrate were conterminous with those of a District Magistrate and what would have been done by a District Magistrate, could be done by the Additional District Magistrate as well.
In the present case the District Magistrate could have transferred P.B.C. No. 6 of 1958 from the file of the Salur Magistrate to the file of the Bobbili Magistrate. In the same way, the Additional District Magistrate too could transfer the case and that was all what Sri D. Subba Rao did.
12. It follows that there is no substance in the points taken by the learned advocate for the petitioners. These two Criminal Revision Casesl are accordingly dismissed.
13. We shall now refer to the cases adverted to in the order of reference. Cr.M.P. No. 66 of 1959 decided by Sanjeeva Row Nayudu, J. arose out of the transfer of a calendar case by the Additional Sessions Judge of Rajahmundry from the file of the Judicial Second Class Magistrate of Razole, to that of the Judicial Second Class Magistrate of Amalapuram. The order of transfer was attacked on two grounds - firstly on the ground that the Additional Sessions Judge had no jurisdiction to order the transfer of the case, and secondly on the ground of the general convenience of the parties.
On the second point, it was conceded by the Public Prosecutor that it was much more convenient from the point of view of the parties to have the case heard by the Razole Magistrate than by the Amalapuram Magistrate. The learned Judge, however, proceeded to consider the first point and after noticing Sections 9 (3), 193 (2), 409 and 438 (3), Cr.P.C. based himself on Section 528 (1-c) and stated his conclusion thus:
From a perusal of the relevant provisions of the Code bearing on the subject it is clear that the Additional Sessions Judge had no power or authority or jurisdiction to transfer a case pending in one court in the territorial jurisdiction of the court of session in which he functions, to another court. On this ground, the order of the Additional Sessions Judge is required to be quashed which I accordingly do.
It will be seen that the learned Judge did not consider whether the Additional Sessions Judge of Rajahmundry had acted in his capacity as Additional District Magistrate and what the combined effect of Sections 10 (2) and 528 (2) would be, presumably because no data were placed before him touching that aspect of the question.
14. Now we turn to the case decided by Seshachelapati, J. - Rajagapala Rao v. State of Andrirn Pradesh : AIR1960AP184 There the Additional Sessions Judge of Masulinntam had taken a case on file under Section 379, I.P.C. and transferred it to the Court of the Judicial Second Class Magistrate, Vijayawada town, by an order dated B-1-1959. Dealing with the objection that the Additional Sessions Judge had no jurisdiction to transfer the case under Section 192(1) Cr.P.C. inasmuch as that provision empowers only a Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate to transfer a case of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him, the learned Judge observed:
It is obvious that if the order dated 3-1-1959 was passed by the Additional Sessions Judge in his capacity as Additional Sessions Judge, it would be palpably without jurisdiction. Section 193 of the Criminal Procedure Code enacts a clear embargo on any Court of Sessions taking cognizance of any offences as a Court of Original Jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. If the question had rested there, there would have been no doubt that the order dated 3-1-1959 is manifestly without jurisdiction. But in this case, the Additional Sessions Judge is also a Magistrate. By notification dated 20-3-1958, the Additional Sessions Judge of Krishna has also been appointed as an Additional District Magistrate.... It is, therefore, clear that the Additional Sessions Judge of Krishna is also an Additional District Magistrate and can exercise all the functions and discharge all the duties of a District Magistrate. When an officer or authority has two capacities and an order is made by the officer or the authority it will be valid if it is referable to either of the capacities of the officer or the authority concerned.
In that view the learned Judge upheld the validity of the order of transfer.
15. It is true the learned Judge was there dealing with the powers of an Additional District Magistrate under Section 192(1), but those powers are analogous to the powers under Section 528 (2), Cr.P.C. and the principle involved is the same. It only remains to add that the view of Seshaehelapati, J. accords with our view as to the powers of an Additional Sessions Judge-cum-Additional District Magistrate under the Code of Criminal Procedure.