K.T. Koshi, C.J.
1. This is a reference made to this Court by the learned Sessions Judge, Tellicherry. The circumstances under which the reference happened to be made are as follows:
2. One Moideen Beary filed a complaint before the Judicial Sub-Magistrate, Kasaragod against the respondents before us for alleged commission of offences punishable under Sections 324 and 447, Indian Penal Code. The learned Sub-Magistrate examined the complainant (S. 200, Cr. P. C.) and registered a case under the said sections against seven of the accused persons and declined to proceed against the remaining three. Later, before the enquiry started it was found that the occurrence that gave rise to the complaint had taken place-beyond the jurisdiction of the Kasaragod Sub-Magistrate.
The place of occurrence lay within the jurisdiction of the Sub-Magistrate, Hosdrug. Being appraised of these facts the Sub-Divisional Magistrate, Tellicherry withdrew the case from the file of the Sub-Magistrate, Kasaragod and transferred it to the file of Sub-Magistrate, Hosdrug for disposal according to law. The Sub-Divisional Magistrate purported to act under Section 528(2), Criminal P. C. The complainant then moved the District Magistrate, Tellicherry in revision (Criminal Revision Case No. 1 of 1957) to quash the entire proceedings that had taken place before the Sub-Magistrate Kasaragod, as also the order of the Sub-Divisional Magistrate, Tellicherry, transferring the case to the Court of the Sub-Magistrate Hosdrug.
According, to the complainant the Sub-Magistrate of Kasaragod had no jurisdiction to entertain the complaint or to decide that the case need be proceeded only against seven out of the ten accused persons. It was also contended before the District Magistrate that the order of the Sub-Divisional Magistrate transferring the case laid before a court having no jurisdiction (territorial) to receive and try it, was illegal. Though the revision was opposed by the present respondents the District Magistrate accepted the contentions raised before him on behalf of the complainant and referred to the decision in Sowbagiammal v. Raphael, (1954) Mad WN 662 as authority for accepting them.
In that case Somasundaram, J. held that when a complaint is laid before a court which has no territorial jurisdiction to entertain it, what the Magistrate concerned had to do was to return the complaint for presentation to the proper court (vide Section 201, Cr. P. C.). However in the operative part of his order the District Magistrate did not give effect to the rule enunciated in the above decision or to the provision of Section 201, Criminal P. C. but thought that a re-transfer to the court of the Sub-Magistrate, Kasaragod 'would involve a further illegality as the transfer is to a court which has no jurisdiction to try it.'
He therefore quashed the entire proceedings in all the three courts, namely, the Sub-Magistrate's Court, Kasaragod, the Sub-Divisional Magistrate's Court, Tellicherry and the Sub-Magistrate's Court, Hosdrug, and directed the complainant to file a fresh complaint before the proper court. This however was done even though the complainant definitely pointed out to the District Magistrate that the proper course for him would be to send the case to the Sub-Magistrate, Kasaragod with a direction to him to return the complaint for presentation to the proper court.
3. In Calendar Revision the learned Sessions Judge of Tellicherry found that the course adopted by the District Magistrate, that is, to quash the entire proceedings in relation to the case was ultra vires of his powers. During the course of his comments on the District Magistrate's order the learned Sessions Judge remarks : --
'The proper course the District Magistrate, in these circumstances, should have adopted was to order a re-transfer of the complaint to the court of the Sub-Magistrate, Kasaragod for being returned to the complainant for presentation to the proper court having jurisdiction for fresh enquiry. There is nothing illegal in this course as the learned District Magistrate seems to think as the complaint is sent to the Kasaragod Sub-Magistrate not for trial but only for return to the complainant for presentation to the proper court as enjoined by Section 201 Criminal Procedure Code.
The quashing of the entire proceedings including the complaint filed and direction to file a fresh complaint made by the District Magistrate seem to be without jurisdiction and beyond the powers given to him by law.'
Prima facie the learned Sessions Judge's view is right. It not only accords with the view expressed by Somasundaram, J. in 1954 Mad WN 662, but also conforms to the view taken by Horwill, J. in District Magistrate v. Abdul Kareem, AIR 1943 Mad 526. However when this reference was heard by Kumara Pillai and Joseph, JJ. and they found a conflict between these two Madras decisions on the one hand and a Division Bench ruling of the Calcutta High Court reported in Amarendra v. Raghunath, AIR 1952 Cal 849, on the other and thought that it would be advisable to have an authoritative decision of a Full Bench of this Court on the question whether, regard being had to the provisions of Section 346(1), Criminal P. C., the Sub-Divisional Magistrate's order of transfer of the case from Kasaragod Court to Hosdrug Court would not be regular.
Pursuant to their order of reference the case came up before us and we heard arguments from Mr. Periera, the learned Public Prosecutor and Mr. M. Bhaskara Menon, Advocate whom we requested to act as amicus curiae. It would appear that the respondents were represented by counsel before the Division Bench, but by the time the case came up before us their counsel withdrew from the case. Hence our request to Mr. Bhaskara Menon to assist us and we feel thankful to him for the assistance he rendered to us by his arguments.
4. Section 346(1), Criminal P. C. reads as follows : --
'346 (1). If, in the course of an inquiry or a trial before a Magistrate in any district outside the presidency-towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.'
Assuming that Section 346(1), Criminal P. C. would apply also to a case of want of territorial or local jurisdiction for a Magistrate to try a case, obviously the present case had not reached the stage where that course could have been adopted. To apply Section 346(1) evidence recorded during the course o an enquiry or trial must warrant a presumption that the case is one which should be tried or commit-ed by some other Magistrate. It is not known how even before recording the evidence as in the instant case it will be proper for a Magistrate to report under Section 346(1), Criminal P. C. Somasundaram, J. has referred to this aspect in his decision in 1954 Mad WN 662. That was also a case where the absence of territorial jurisdiction was found out before the enquiry or trial commenced.
5. The learned Judges in the Calcutta decision have referred to the decision of Horwill, J. in AIR 1943 Mad 526 and dismissed the view taken there on the present question as obiter. We wonder whether that observation is correct when two points arose for decision in that case and though a decision on either point according to the view the learned Judge took, would have disposed of the case, he chose to pronounce upon both the points.
Whatever that be, while in the Calcutta case the question whether action should be taken under Section 346(1), Criminal P. C. arose after the entire prosecution evidence was recorded and the stage was reached for framing the charge, in this case as pointed Out earlier the provision in Section 346(1) Criminal P. C. cannot obviously apply as no enquiry or trial had even commenced.
6. Further, we are inclined to agree with the view Somasundaram, J. expressed in 1954 Mad WN 662, that Section 346(1), Criminal P. C. has no reference to a case where a court is wanting in territorial or local jurisdiction and that when that fact is disclosed resort should be had to Section 201, Criminal P. C. whatever be the stage the case had been reached. In his order Somasundaram, J. has referred to the provisions corresponding to Section 346(1), Criminal P. C. in the previous Codes of 1861 and 1872 to establish that the Section has no application to want of territorial or local jurisdiction and also pointed out with reference to Section 403, Criminal P. C. the anomalies that would result by adopting the view taken in the Calcutta case.
No doubt the learned Judge does not refer to the Calcutta decision, but a reading of the decision clearly shows that his attempt was to meet the arguments in the Calcutta case. All that the learned Judges say in the Calcutta case is that certain words in Section 346(1), Criminal P. C. may reasonably be construed to indicate that cases of want of local or territorial jurisdiction are also included within the scope of Section 346(1), Criminal P. C. but a reference to recognised commentaries on the Code like Sohoni, Mitra and others would show that up till the date of that decision the operation of Section 346(1), Criminal P. C. was never extended to cases of want of territorial jurisdiction -- with reference to which there is a special section (Section 201, Criminal P. C.) -- but was always limited to cases where a Magistrate was not competent to try the case having regard to column 8 of Schedule 2, or because he appeared to be personally interested (Section 556) or was one in which he is declared otherwise incompetent to deal with (Sections 337, 482 and 487).
We have not also met with any subsequent decision applying the provisions in Section 346(1), Criminal P. C. to case of absence of territorial or local jurisdiction,
7. AIR 1952 Cal 849 refers to an old Madras case, In re Munisami, 2 Weir 323, but that was a case where for want of territorial jurisdiction the Magistrate discharged the accused and did not act either under Section 201 or Section 346(1), Criminal P. C. The actual decision was that the order of discharge was wrong and that it should be set aside. All that the body of the judgment states is that if the Magistrate had no jurisdiction, he should have sent the accused before a Magistrate having jurisdiction. The passage need not necessarily refer to Section 346(1), Criminal P. C. though the head-note points out that resort should have been had to that section. The learned Judge might as well have had in mind Section 201, Criminal P. C. and not section 346(1).
8. On the whole we would agree with the Madras view that Section 346(1), Criminal P. C. has no reference to cases of absence of territorial jurisdiction and that in such cases what the Magistrate concerned should do is to act under Section 201, Criminal P. C. Before concluding it may also be pointed out that the course adopted in the Calcutta case for the High Court to transfer the case under Section 520(1)(1), Criminal P. C. to the court which had dealt with the case up till the date they issued the rule, even though it had no territorial jurisdiction to try it, is opposed to the rule enunciated in Peary Lall v. Komal Kishore, ILR 6 Cal 30, which the Privy Council cited with approval in Ledgard v. Bull, ILR 9 All 191, that the power of transfer of a case given to a higher court is to transfer a case from a court having jurisdiction to receive and try it.
The two cases now referred to related to civil cases, but a Division Bench of the Bombay High Court applied the rule to Criminal cases as well --see Queen Empress v. Mangal Tekchand, ILR 10 Bom 274. On the authority of these three decisions and others a Division Bench of the Travancore-Cochin High Court consisting of two of us had in State v. Pyloth 1955 Ker LT 756 : (S) AIR 1956 Trav-Co. 29, held that the High Court is competent to transfer a case under the Civil P. C. as well as under the Criminal P. C. only from a court having jurisdiction to receive and try it and that the question of the transfer of a case from a court which has no jurisdiction to receive and try it is not merely a matter of procedure, but one of jurisdiction. This accords with the view the Madras decisions cited earlier laid down.
9. Before us both the Public Prosecutor as also Mr. Bhaskara Menon agreed that the Sessions Judge's view that it was beyond the District Magistrate's powers to quash the entire proceedings before the courts subordinate to him was right. We agree with that view. It is only the High Court that can in a proper case under its revisional jurisdiction or its inherent powers, quash the proceedings of the subordinate courts.
10. In the result we accept the learned Sessions Judge's reference, set aside the District Magistrate's order in Criminal Revision Case No. 1 of 1957 and direct the Sub-Magistrate, Hosdrug to send back the complaint to the Court of the Sub-Magistrate, Kasaragod (through proper channel) to be returned to the complainant as per the provision in Section 201, Criminal P. C. This course would mean that if and when the complaint is represented before the court of the Hosdrug Sub-Magistrate, it will be open to him, if so advised, to proceed against all the ten accused persons and not merely against the seven persons sought to be proceeded against by the Kasaragod Sub-Magistrate.
This would also enable the enquiry or trial totake place before a court within the local limitsof whose jurisdiction the offences complained ofwere committed (Section 177, Criminal P. C.).