Guha Ray, J.
1. This is a petition for revision of an order dated 8-8-1955 passed by a Magistrate Sri M. N. Pramanik directing that the accused should appear personally on 18-8-1955.
2. The facts of the case are briefly that on 26-2-1954 the accused was summoned under Section 406, Penal Code on the complaint of the opposite party and on 7-4-1954 she was allowed to appear through a lawyer upto the stage when a charge under Section 406, I. P. C. was framed against her, after the examination of 3 witnesses for the prosecution on 27-9-1954.
On the 3rd of December the Magistrate who was trying the case recorded an order that he was under orders of transfer and the record should be put up before the Sub-divisional Officer. On 17-12-1954, the Sub-divisional Officer withdrew the case to his file and transferred it to another Magistrate. On 20-1-1955 the complainant prayed to the Magistrate to whom the case had been transferred for directing the accused to appear personally in Court.
The Magistrate rejected that prayer. Then the complainant filed an application for time for moving the High Court under Section 526, Cr. P. C. and the case was accordingly adjourned on the complainant executing a bond for Rs. 200/-. What the complainant however, did was first to move the Sub-divisional Magistrate under Section 528(2). The Sub-divisional Magistrate dismissed the application. Then the Additional District Magistrate was moved under the same section and the Additional District Magistrate by his order dated 5-7-1955 transferred the case to the file of Sri M. N. Pramanik.
In doing so, he made an observation that the Magistrate dealing with the case should have enforced the attendance of the accused. When the case went to the file of Sri M. N. Pramanik on 11-7-1955, he fixed 1-8-1955 for appearance of the accused and called upon her surety to produce her on 1-8-1955. The surety asked for time to produce the accused and it was ordered that he must produce the accused on 4-8-1955.
On 4-8-1955 the accused was absent and a petition was filed on her behalf with a medical certificate and there was a petition on behalf of the complainant stating that he would file an affidavit challenging the medical certificate. Then there was an affidavit filed and the learned Magistrate made the order now complained of.
3. It appears that although the case started as far back as 26-2-1954, the accused has at no time appeared before any of the Courts. It further appears that the Civil Surgeon of the district where she ordinarily resided at one stage sometime in 1954 reported that she was too ill to attend Court. Then there was a certificate from the local Assistant Surgeon to that effect.
The second medical certificate is dated 2-8-1955. There it is stated that the accused Sm. Kishori Bala Sahai has been under the treatment of this particular medical practitioner for the last 8 months and that she is an old patient of epidemic dropsy with dilated heart and her blood pressure is 90/65 and that she had just then an attack of cellulitis of the face and was not fit to take a Journey to Asansol even in a car.
On behalf of the complainant an affidavit was sworn on 8-8-1955 by one Kanai to the effect that he knew Sm. Kishoribala Sahai and that he very often saw her travelling at Dhanbad in a car. On the basis of this affidavit the learned Magistrate made the impugned order.
4. Mr. Mukherjee on behalf of the petitioner argues that a pardanashin lady should not be compelled to appear in Court particularly when she has been ill and the learned Magistrate was not justified in saying that she was a graduate without any evidence on the record. It is admitted that there is nothing on the record to suggest that she is a graduate.
It is the case of the petitioner that she is not even a matriculate. Whether she is a graduate or not hardly matters. If she is pardanashin and if she is really ill she should not certainly be compelled to appear in court but at the same time if she is not ill although she might be pardanashin that itself should be no reason for her to refuse to attend Court, when she has been summoned under Section 406, I. P. C. If she is pardanashin she may as well ask the Court to clear the Court of outsiders at the time of her appearance.
The really material question is whether on the date in question she was physically incapableof attending Court. The medical certificate filed on her behalf at about that time showed that she was too ill to attend Court whereas an affidavit on the side of the complainant showed that she was not ill and she was seen travelling in a ear at Dhanbad. In these circumstances, the learned Magistrate was entitled to act on the affidavit rather than on the medical certificate. There is nothing therefore, illegal in that order.
5. Mr. Mukherjee on behalf of the petitioner raised another point, namely, that the order of the Additional District Magistrate transferring the case to Sri M. N. Pramanik was illegal because the Sub-divisional Magistrate and the District Magistrate had under Section 528 (2), Cr. P. C. concurrent Jurisdiction so that when an application was rejected by the Sub-divisional Magistrate Under that section it was not open to the aggrieved party to move the District Magistrate or the Additional District Magistrate under that very section.
During the argument it also struck me whether it was open to the District Magistrate to withdraw from a subordinate Magistrate a case which he had not himself transferred. On reading the section I think the 2nd point must be found in favour of the opposite party, viz., that it is open to a District Magistrate to withdraw from a subordinate Magistrate a case which he has not himself made over to him for it is clear that the section uses two expressions, viz., 'withdraw any case from' and 'recall any case which he made over to'.
It is clear that while the phrase 'which he made over to' qualifies 'any case' in the part of the sentence 'recall any case' it does not qualify 'any case' following the word 'withdraw'. That being so, it must be held that a District Magistrate has power to withdraw any case from a subordinate Magistrate even though he has not made it over to him and may refer it for enquiry or trial to any other Magistrate subordinate to him and competent to enquire into or try the same.
6. The question, however, is whether when a Sub-divisional Magistrate has rejected an application under Section 528 (2) it is open to the aggrieved party to move the District Magistrate under that very section. There is nothing in the section itself to suggest that this cannot be done unlike Section 435(4), Cr. P. C., there is no provision in Section 528 to indicate that if an application is made to the Sub-divisional Magistrate who has concurrent jurisdiction with the District Magistrate an application to the District Magistrate will not lie.
In the case of -- 'Santnappa Sethuram v. Govindaswamy Kandiyar' 1918 Mad 1122 (AIR V 5) (A), it has been held that the District Magistrate is not precluded from exercising his power of transfer of a case under Section 528, Criminal P. C. on the application of a party by reason of the tact that the Sub-divisional Magistrate had previously refused to transfer the case at the request of the same party.
Mr. Mukherjee relies on another case, viz. -- 'Raghunatha Pandaram v. Emperor' 26 Mad 130 (B), in which it has been held that a District Magistrate has no power to cancel an order made by a Sub-divisional Magistrate directing the transfer under Section 528, Cr. P. C. of a case from the file of one Sub-Magistrate to that of another Sub-Magistrate and to direct retransfer of the case to the file of the Sub-Magistrate from whom it was transferred.
I think the cancellation of an order of the Sub-divisional Magistrate is really something different from an order passed by the District Magistrate withdrawing the case from the file of a Magistrate subordinate to him to whom the Sub-divisional Magistrate may have transferred it and then re-transferring it to some other Magistrate subordinate to him. As a matter of fact, in the very case which Mr. Mukherjee has cited, it is observed by their Lordships.
'Under Section 528 a case once transferred from one Magistrate to another may be withdrawn from the latter by the District Magistrate or even by the Sub-divisional Magistrate and he may enquire into or try such case himself or refer it for enquiry or trial to some other competent Magistrate on a substantive application made that it is inexpedient that the Magistrate to whom it had been transferred or his successor in office should enquire into or try the case.'
7. Mr. Mukherjee next relies on the case of -- 'Muhammad Akbar v. Emperor' : AIR1925All283 , in which it was held that when the District Magistrate had transferred a case to a Magistrate subordinate to himself, but also subordinate to the Sub-divisional Magistrate, it is no longer competent to the latter Magistrate to take the case on to his own rile.
In this case although his Lordship says that there can be no doubt that under Section 528, Criminal P. C. a Sub-divisional Magistrate has the power to withdraw any case pending before a subordinate Magistrate, in his opinion, the section cannot be so read as to imply that after a District Magistrate has transferred certain cases from one file to the file of another Magistrate, a Sub-divisional Magistrate, who is subordinate to the District Magistrate, has jurisdiction to nullify that order by ordering a fresh transfer of the cases to his own file.
With respect I may say that while it will be certainly improper on the part of the Sub-divisional Magistrate who is subordinate to the District Magistrate to try to nullify the order la question, in appropriate circumstances he has the right under Section 528 (2) to withdraw from the file of a Magistrate to whom the District Magistrate had transferred the case to his own the and then to try it himself or to make it over to some other Magistrate.
8. Mr. Mukherjee refers to the scheme of the section but I see nothing in the scheme of the section which would suggest that although the jurisdiction of the District Magistrate and the Sub-divisional Magistrate under Section 528 (2) is concurrent, if an order is made under that section by one of them, the other is incompetence to make an order under the same section at a later stage, although neither of them can sit in judgment over the order of the other.
As a matter of fact, it has been already pointed out that unlike Section 435 (4) where it is distinctly provided that if an application is made to the Sessions Judge or the District Magistrate no further application shall lie to the other, the absence of similar provision in Section 528 seems to indicate that where one of the Magistrates mentioned in Section 528 (2) has dealt with the matter, the jurisdiction of the other to deal with it at a later stage will not be ousted.
9. The order therefore of the Additional District Magistrate cannot be said to be illegal. Consequently it cannot be said that Sri M. N. Pramanick has no jurisdiction to try this case at all. The order therefore he made on 8-8-1955 is not without jurisdiction.
10. On the merits of the question, I need only say that that order was made in August 1955 and we are dealing with it on 1-3-1956, more than 6 months later.
It is most unlikely that the petitioner, if she was in on that date still continues to be ill. She must therefore, appear before the Magistrate on a date to be fixed by him unless, of course, she can satisfy the Magistrate that she is too ill to attend, either by producing the Civil Surgeon of the District where she ordinarily resides if he has had a chance of examining her immediately before the date of her appearance in Court or other cogent and reliable evidence.
11. The Rule is disposed of accordingly.