1. The petitioner in this case was accused of an offence of criminal breach of trust and a charge sheet was laid by the Sub-Inspector of Railway Police, Villupuram. The case was taken on file by the Sub-Divisional Magistrate, Tiruvannamalai. The original charge sheet was under Section 409 of the Indian Penal Code but subsequently the Police put in a petition for an alteration of the section to Section 408 of the Indian Penal Code. The section was accordingly altered and the case was then transferred from the file of the Sub-Divisional Magistrate, Tiruvannamalai to the file of the Stationary Sub-Magistrate, Tiruvannamalai for disposal according to law. The latter Magistrate took the case on his file as C.C. No. 18 of 1946 and framed a charge under Section 408 of the Indian Penal Code on 27th July, 1946. There was then an application to this Court by the accused to quash that charge on the ground that the offence alleged really amounted to an offence under Section 409 of the Indian Penal Code which the Magsitrate had no jurisdiction to try. This Court agreed with the petitioner, allowed his application and quashed the proceedings in C.C. No. 18 of 1946 on the file of the second Glass Magistrate of Tiruvannamalai by an order dated 10th April, 1947. Thereupon that Magistrate submitted the case records to the Sub-Divisional Magistrate for necessary orders and the Sub-Divisional Magistrate took the case on file as C.C. No. 123 of 1947. Objection was taken on behalf of the accused that the Sub-Divisional Magistrate had no power to proceed with the case because the order of the High Court quashing the proceedings in C.C. No. 18 of 1946 on the file of the second class Magistrate Tiruvannamalai, wiped out, so to say, even the first information report and the charge sheet. His objection was overruled.
2. The accused seeks in this petition to revise the order of the Sub-Divisional Magistrate refusing to drop the proceedings. He also prays in another application to quash the proceedings in C.C. No. 123 of 1947 on the file of the Sub-Divisional Magistrate.
3. The first point taken by the learned advocate for the petitioner is that under Section 530(1) of the Code of Criminal Procedure 'If any Magistrate not being empowered by law in this behalf tries an offender his proceedings shall be void.' I do not however see how this provision applies to this case at this stage. No doubt at an earlier stage this Court found that the Second Class Magistrate, Tiruvannamalai was not empowered by law to try the offence with which the accused stood charged. That was why this Court quashed the proceedings on his file. The order of this Court leaves untouched any other proceeding. No authority has been shown to me that the first information report or the charge sheet originally filed in the Court of the Sub-Divisional Magistrate, Tiruvannamalai have also become null and void.
4. The learned advocate referred me to three cases of the Calcutta High Court, namely, Golapady Sheikh v. Queen Empress I.L.R.(1900) Cal. 979 Radhaballav Roy v. Benode Bihari Chatterjee I.L.R.(1900) Cal. 449 and Ajab Lal Khirher v. Emperor I.L.R.(1905) Cal. 783. None of these cases has any application to the facts of the present case. In none of these cases we find the proceedings on the file of the Magistrate to whom the case had been transferred being declared void by the High Court. In the first two of the cases the case was validly pending before the Magistrate to whom the case had been transferred and it was held that the Court which made the order of transfer had no power to pass any order in respect of the proceedings before the Magistrate to whom the case had been sent. In Ajab Lal Khirher v. Emperor I.L.R.(1905) Cal. 783 the facts were no doubt different but there again it had not been declared that the Magistrate to whom the case had been transferred had no jurisdiction to entertain or try the case. Actually he had finished with the trial, convicted some of the accused and though no order had been passed in respect of the other accused his order was construed to be an order discharging those who had not been convicted. In any event I do not see how the decision in that case can have any bearing on the present case.
5. The learned advocate referred me to Sections 5, 346, and 528 of the Code of Criminal Procedure. His contention evidently was that except under the provisions of Section 346 the Magistrate had no power to make a report to a superior magistrate on the ground that the evidence appeared to him to warrant a presumption that the case ought to be tried or committed for trial by some other magistrate. I agree but this is not what has been done. There can be no question here of the Sub-Magistrate, Tiruvannamalai, purporting to do any such thing. Section 528 enacts that
Any 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 enquiry or trial to any other such Magistrate competent to inquire into or try the same.
It is contended that the Sub-Divisional Magistrate has not passed any order withdrawing or recalling the case which is made over to the Sub-Divisional Magistrate. But in my opinion there is a fallacy underlying this contention. Section 528 will in my opinion only apply when there is a case validly pending before any Magistrate subordinate to the superior Magistrate. There must first be a case, which means a case properly on the file of a Magistrate subordinate to him, before the superior Magistrate can purport to withdraw that case or recall it from the file of the Subordinate Magistrate to inquire or try it himself or to post it before any other Magistrate. In this case the Sub-Divisional Magistrate cannot be called upon to act under this section because this Court has quashed the entire proceedings before the Sub-Magistrate, Tiruvannamalai, which means that there is no case before the Sub-Magistrate to be withdrawn or recalled.
6. What the Sub-Magistrate has done in this case really amounts to this. This Court had quashed the proceedings before the Sub-Magistrate, but there were certain records which pertained to that case remaining with him. The effect of the order of this Court was to render even the transfer of the case by the Sub-Divisional Magistrate to the Sub-Magistrate invalid, because the offence alleged was an offence which a second class Magistrate could not try and therefore the Sub-Divisional Magistrate should not have transferred the case to the Sub-Magistrate even originally. The result is that in effect the case has continued on the file of the Sub-Divisional Magistrate though it might not have received a number. What the Sub-Divisional Magistrate has now done is to proceed with the case which had been properly laid before him by the complaint and what the Sub-Magistrate did was not anything judicial but something purely administrative in the sending of the records of a case which had ceased to be on his file. He simply returned the records which had been sent to him by his superior Magistrate. I therefore do not consider that there is any merit in any of the technical points raised in this application and it is dismissed. The other application to quash the proceedings is also dismissed.