1. This is a petition to revise the conviction of the petitioner for defamation of the complainant recorded by the Sub-Divisional Magistrate Of Vizagapatam in C.C. 33 of 1928 and upheld by the learned Sessions Judge of Vizagapatam on 16th November 1928.
2. Objection is taken to the legality of the conviction on the ground that the proceedings before the Sub-Divisional Magistrate were vitiated by one of two alternative grounds: (a) that there was no complaint before the Magistrate on which he could take cognizance of the case and that the Magistrate, though informed of this defect at the very outset and objection was taken to his proceeding further with the case, brushed aside and took cognizance of the case i.e. issued process against the accused; (b) if the proceedings before the Sub-Divisional Magistrate be regarded as a continuation of those which were started by a previous complaint instituted by the complainant, the said complaint had been transferred by the Sub-Divisional Magistrate himself to the Sheristadar First Class Magistrate of Vizagapatam and was pending before him and had not been withdrawn from that file to the file of the Sub-Divisional Magistrate. To appreciate these objections it is necessary to state that the proceedings against this petitioner originally started upon a complaint filed before the Sub-Divisional Magistrate on 21st December 1927. This complaint was transferred to the Court of the Huzur Sheristadar First Class Magistrate of Vizagapatam and was filed there on 27th December 1927. As shown in the order in C.C. 1 of 1928 of that Magistrate that complaint embraced two distinct matters (1) theft (sic) robbery on 14th December 1927 by the present petitioner and others of a brass vessel and a cloth and (2) defamation of the complainant by this petitioner on and after 18th December 1927, by the pasting of defamatory leaflets and handbills. At the trial of this complaint the present petitioner took objection to the trial of both matters going on together as they constituted distinct offences. On this, the complainant's vakil in the words of the order in C.C. 1 of 1928 dropped that portion of the complaint which relates to the offence of defamation punishable under Section 500, I.P.C. The trial proceeded on the charge of theft and ended in a discharge dated 25th February 1923. Thereupon on 17th April 1928, Mr. Narasimha Rao, pleader for the complainant, put in a petition to the Sub-Divisional Magistrate accusing the former vakil who had conducted the complainant's case in the Huzur Sheristadar Magistrate's Court of having improperly added a charge of robbery into the complaint and of having dropped the charge of defamation, stating that the same complaint is still pending and that therefore no new complaint is necessary and praying for process on the charge of defamation. The complainant did not sign this petition nor was she examined on oath. But the Sub-Divisional Magistrate on 18th April 1928 passed this order 'Take on file under Section 500, I.P.C.' and posted the case to the 2nd May 1928. On that day the accused through his vakil put in a long petition pointing out the irregularity, that there was no complaint and that there was no case and that the Court had no jurisdiction to proceed. The pleader Mr. Narayana Rao for the complainant answered these objections and as far as can be gathered, the petitioner's objections were overruled and the trial proceeded and ended in a conviction under Section 500 and a sentence of a fine of Rs. 100.
3. From the above facts it is quite clear that treated as a new case started before the Sub-Divisional Magistrate there was in C.C. 33 of 1928 no complaint nor was the complainant examined on oath. This is certainly a grave irregularity. Whether it might have been cured or not by acquiescence, there was certainly no acquiescence. This was immediately pointed out but was brushed aside. I can therefore see no ground for saying that this objection was waived or acquiesced in. This would in itself be a sufficiently grave irregularity to vitiate the subsequent proceedings.
4. The only way in which that objection could be met is by supposing that there was originally a complaint including the charge of defamation, namely, the one made on 21st December 1927. But this supposition only involves a still greater error because in that case the Sub-Divisional Magistrate would have no jurisdiction to proceed with that complaint because it was transferred to the Huzur Sheristadar First Class Magistrate and had not been recalled. Several decisions have been cited to me to show that once a case is transferred by a Sub-Divisional Magistrate or District Magistrate to another, a Subordinate Magistrate, he cannot proceed with that case without withdrawing or transferring it back again. It is only necessary to refer to Radha Bullar Roy v. Benode Behari Chatterjee  30 Cal. 449 and Ajab Lal v. Emperor  32 Cal. 783. That proposition appears to me not to require any authority for its support and it has not been stated by the Public Prosecutor that there was any order by the Sub-Divisional Magistrate withdrawing the complaint from the Sheristadar Magistrate to himself. It was suggested by the learned Public Prosecutor that also was a curable defect and must be held to have been cured in this case because that objection was not taken in that form in the Courts below. In the first place I am not at all sure, because no authority has been cited for that proposition, that it is a curable defect. If a Magistrate having no jurisdiction to try a case does so, his proceedings are void (See Section 530, Clause p) and a Magistrate trying a case which has not been taken cognizance of by him or has not been sent to him in the proper way or withdrawn by him in the proper way has certainly no jurisdiction to try it.
5. Then assuming it was curable there is nothing in the case to show that it was cured or was acquiesced in. On the contrary at the earliest possible moment the Sub-Divisional Magistrate was informed of the defect that there was no complaint in the case. That was quite sufficient to put the Court and the opposite party upon notice of the objection which went to the root of the case. It could only have been met by the answer that there was a previous complaint in the case which itself would have been met by the still more fatal objection that that complaint was pending in another Court. It seems to me that the prosecution in this case is on the horns of a dilemma as has been stated above and the learned Public Prosecutor has not satisfied me how he can escape from the one or the other horn of this dilemma. The proceedings in the lower Courts must therefore be set aside as without jurisdiction. The complaint was started by a private party and it is not therefore right that I should not allow her after all this time, further opportunity to prove her case, if she desires it, to the satisfaction of the Magistrate. The records will be sent back to the Huzur Sheristadar First Class Magistrate before whom the first complaint is pending for disposal according to law. The fine, if paid, must be refunded.