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Mahadeb Karmakar Vs. Adhir Kumar Karmakar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 345 of 1968
Judge
Reported inAIR1970Cal169,1970CriLJ573
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 133 and 192
AppellantMahadeb Karmakar
RespondentAdhir Kumar Karmakar and anr.
Appellant AdvocateKalipada Trivedi, Adv.
Respondent AdvocateRamendra Nath Chakraborty, Adv.;Biswa Ranjan Ghoshal, Adv.
Cases ReferredRam Charan v. Residents of Shahabad.
Excerpt:
- .....for consideration is if such transfer is competent in law? on this point the latest division bench decision of this court is contained in bardeshwari prosad bhattacharjee v. rabi nandan saha. : air1956cal24 . the previous decisions on this point were considered by the division bench in this case. a. n. sen, j. held in pran krishna v. shyam sundar, air 1949 cal 637 that, no such subsequent transfer under section 192 of the code was competent. sen, j., purported to rely on the decision in inasaddar ali v. isimulla : air1929cal813 . the division bench deciding bardeshwari's case, : air1956cal24 , overruled a. n. sen j. and held that such subsequent transfer can be made under section 192 of the code. debabrata mookerjee, j., no doubt followed the previous decision in jhatu charan das.....
Judgment:

R.N. Dutt, J.

1. On an application by the petitioner before the Sub-Divisional Magistrate, Barrackpore, a proceeding under Section 133 of the Code of Criminal Procedure was started against the opposite parties and a conditional order was issued and they were asked to show cause. They appeared and showed cause before the Sub-Divisional Magistrate. Thereafter the Sub-Divisional Magistrate transferred the case to Shri M. N. Pramanick, Magistrate 1st Class, for disposal. Shri Pramanick examined witnesses, heard arguments but ultimately held that the transfer of the proceeding to him was incompetent and as such he dropped the proceeding. The petitioner has obtained this Rule against this order of the said Magistrate, Shri M. N. Pramanick.

2. When the opposite parties were directed to show cause, there was no specific direction as to whether cause should be shown before the Sub-Divisional Magistrate or any other Magistrate. We find that though the order does not specifically say that cause was to be shown to the Sub-Divisional Magistrate, the cause was in fact shown before him because there was no direction, that cause was to be shown before some other Magistrate. We then find that after cause was shown, the Sub-Divisional Magistrate transferred the proceeding to Shri M. N. Pramanick. The question for consideration is if such transfer is competent in law? On this point the latest Division Bench decision of this Court is contained in Bardeshwari Prosad Bhattacharjee v. Rabi Nandan Saha. : AIR1956Cal24 . The previous decisions on this point were considered by the Division Bench in this case. A. N. Sen, J. held in Pran Krishna v. Shyam Sundar, AIR 1949 Cal 637 that, no such subsequent transfer under Section 192 of the Code was competent. Sen, J., purported to rely on the decision in Inasaddar Ali v. Isimulla : AIR1929Cal813 . The Division Bench deciding Bardeshwari's case, : AIR1956Cal24 , overruled A. N. Sen J. and held that such subsequent transfer can be made under Section 192 of the Code. Debabrata Mookerjee, J., no doubt followed the previous decision in Jhatu Charan Das v. Bhanu Chandra Das. : AIR1956Cal220 . Though this case was decided in February, 1956 it appears that the Division Bench decision in Bardeshwari's case, : AIR1956Cal24 , decided in June, 1955 was not considered as obviously it was not brought to his Lordship's notice. The Single Bench decision of the Allahabad High Court in Kishorilal v. State. : AIR1960All244 was relied upon by the learned Magistrate. We may also refer to the Bench decision of the Rajasthan High Court in Ram Charan v. Residents of Shahabad. . These decisions have no doubt held that Section 133 of the Code is self-contained and proceedings thereunder cannot be subsequently transferred under Section 192 of the Code. But as we have said the latest Division Bench decision of this Court has held in Bardeshwari's case, : AIR1956Cal24 that such transfer is competent. The learned Magistrate should have followed this decision instead of the Single Bench decisions. We have Considered the matter in all its aspects. True, under Section 133 of the Code the Magistrate who draws up the proceeding can no doubt ask the opposite parties to show cause before some other Magistrate. But the terms of Section 133 of the Code cannot and should not be construed as to exclude the general provisions of transfer contained in Section 192 of the Code. We do not think that this is a matter which should be referred to a larger Bench for further consideration; rather we think that we should follow the Bench decision in Bardeshwari's case. : AIR1956Cal24 . In that view of the matter the instant order should be set aside.

3. In the result, the Rule is made absolute. The order of the learned Magistrate is set aside and the learned Magistrate is directed to proceed with further hearing of the matter in accordance with law.

4. Let the records be sent down at once.

B. Banerji, J.

5. I agree.


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