1. These are five connected references by the District Magistrate of Jodhpur and arise in the following circumstances :
2. Bhri Govindram Gupta was working as Special Magistrate, Jodhpur Division and five criminal cases which are the subject matter of these five references were pending on his file. He was transferred and was succeeded after some time by Shri Goverdhanchan Bhandari as Special Magistrate. This Magistrate, however, was given only certain limited jurisdiction by the notification appointing him as such and was authorised to deal with such dacoity cases as had been left unfinished by Shri Govindram Gupta. The five cases in which these references have been made were not dacoity cases left unfinished by Shri Govindram Gupta and could not, therefore, be tried by Sri Goverdhanchand Bhandari. He therefore, referred the matter to the District Magistrate of Jodhpur, who ordered these five cases to be transferred to the Court of City Magistrate, Jodhpur. When these cases reached the Court of the City Magistrate, an objection was raised that the District Magistrate was not competent to transfer the cases to the City Magistrate and, therefore, the City Magistrate had no jurisdiction to try them. The City Magistrate accepted this objection and sent the cases back to the Special Magistrate. Thereupon, the Special Magistrate again referred the matter to the District Magistrate. The District Magistrate then registered five revisions against the order of the City Magistrate returning these cases to the Special Magistrate and has referred all the five revisions to this Court with the recommendation that the order of the City Magistrate returning these cases be set aside and the City Magistrate should be ordered to proceed with the trial of these fivecases.
3. The powers of the District Magistrate for transfer of cases are to be found in Sections 192 and 528 of the Criminal P. C. Sub-section (1) of Section 192 to which the learned District Magistrate refers has no application in the present case. That sub-section refers to cases in which cognizance has been taken by the District Magistrate himself. It is not said in these cases that cognizance was taken by the District Magistrate himself. Sub-section (2) empowers the District Magistrate to authorise any first Class Magistrate who has taken cognizance to transfer cases to a special Magistrate and obviously does not apply. It is Section 528 (2) which must be looked into in the present case and which reads as follows '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.'
4. The argument which was raised in the Court of the City Magistrate was that as the Special Magistrate, in whose Court these cases were pending, had jurisdiction to hear cases of the entire Jodhpur Division and not merely of the Jodhpur District, he was not subordinate to the District Magistrate of Jodhpur and, therefore, the District Magistrate of Jodhpur could not transfer any case from his Court. This argument is, in my opinion, fallacious because whatever may be the local area over which a Special Magistrate has jurisdiction under Section 14 of the Criminal P. C., he is subordinate under Section 17, Criminal P. C., to the District Magistrate of the area where he sits, even if he may not be subordinate to the District Magistrate of other areas from which he hears cases. In the present case, the Special Magistrate used to sit in Jodhpur and as such he was certainly subordinate to the District Magistrate of Jodhpur and the District Magistrate could transfer cases from his Court to any other Court under Section 528 (2) of the Criminal P. C. Under that section, the District Magistrate may withdraw any case from 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. The Special Magistrate, in whose Court these cases were pending, was certainly subordinate to the District Magistrate of Jodhpur and the District Magistrate was, therefore, entitled under Section 528 (2) to withdraw these cases from the Court of the Special Magistrate and could inquire into or try these cases himself or refer them for inquiry or trial to any other, Subordinate Magistrate who was competent to inquire into or try all these five cases. Under thesecircumstances, the orders of the District Magistrate by which he has transferred these cases fromthe Court of the Special Magistrate to the Courtof the City Magistrate are correct. I, therefore,accept the references and set aside the order ofthe City Magistrate by which he returned thesecases to the Special Magistrate and order him totry or enquire into these cases as directed by theorder of transfer of the District Magistrate.