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Mahammad Abbus Ali Vs. Indra Prakash Kapoor - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. No. 13 of 1965
Reported inAIR1965Cal626,1965CriLJ740,69CWN436
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 346 and 526(1)
AppellantMahammad Abbus Ali
Respondentindra Prakash Kapoor
Appellant AdvocateAnil Kumar Sen and ;Madhusudan Banerjee, Advs.
Respondent AdvocateAmiya Lal Chatterjee (Sr.), Adv.
Cases ReferredAmarendra Nath v. Raghunath Nandan
- .....c. 1905 of 1961/ t. r. 782 of 1961, under section 526 sub-section (1) clause (d), (e), (i) of the code of criminal procedure. it is stated that the place where the offence under section 420 of the indian penal code is alleged to have taken place is at 8, lower circular road, calcutta. it is admittedly within the original jurisdiction of this court. ordinarily this case ought to have, therefore, been tried in a court of a presidency magistrate at calcutta on a complaint being filed before the chief presidency magistrate. it is stated by the petitioner that after the evidence was gone into in this case by the learned magistrate it came to his (petitioner's) notice that the learned magistrate had no territorial jurisdiction to try the case. accordingly it is prayed that for the general.....

Sen, J.

1. This revisional application is at the instance of the complainant, Mahammad Abbus Ali for directing Sri S.N. Basu, Magistrate, 1st Class, Sealdah, District 24 Paraganas to try and dispose of case No. C. 1905 of 1961/ T. R. 782 of 1961, under Section 526 Sub-section (1) Clause (d), (e), (i) of the Code of Criminal Procedure. It is stated that the place where the offence under Section 420 of the Indian Penal Code is alleged to have taken place is at 8, Lower Circular Road, Calcutta. It is admittedly within the Original jurisdiction of this Court. Ordinarily this case ought to have, therefore, been tried in a court of a Presidency Magistrate at Calcutta on a complaint being filed before the Chief Presidency Magistrate. It is stated by the petitioner that after the evidence was gone into in this case by the learned Magistrate it came to his (Petitioner's) notice that the learned Magistrate had no territorial jurisdiction to try the case. Accordingly it is prayed that for the general convenience of the parties, the Magistrate should be asked to try the case himself although he cannot have seisin of the case.

2. The relevant portion of Section 526 runs as follows:

(1) Whenever it is made to appear to the High Court ...... (d) that an order under this section will tend to the general convenience of the parties or witnesses, or

(e) that such an order is expedient for the ends of Justice, or is required by any provision of this Code; it may order

(f) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;..........'

It appears to us prima facie that as the evidence has been gone into in a case of 1961 and the stage of the trial is at the point of completion, we consider that an order under Section 526(1) should be passed asking the Magistrate to try the case himself on which he has apparently no territorial jurisdiction.

3. Mr. Amiyalal Chatterjee appealing for the accused opposite party has urged before us that unless any question of prejudice or any other circumstance arises the provisions of Section 526 (1) (d) (i) cannot be invoked, and as such in a case like this where the learned Magistrate had no territorial jurisdiction, this part of Section 526 is inapplicable. The proper course, according to him, is that the complainant should withdraw the complaint and file it before aCourt having jurisdiction to try the offence. In this connection he has referred us to a Full Bench decision of the Kerala High Court reported in State v. Pokker : AIR1959Ker53 (FB). The Kerala High Court decided inter alia that Section 346(1) Criminal Procedure Code has no reference to cases of absence of territorial jurisdiction. In such cases what the Magistrate concerned should do is to act under Section 201, Criminal Procedure Code. In such a case it cannot be transferred under Section 526(1). Section 346, Criminal Procedure Code provides for the procedure of State Magistrate in cases which he cannot dispose of. It runs as follows:

'If, in the course of an inquiry or a trial before a Magistrate in any district outside the presidency towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.'

It will appear from this section that it applies only when the Magistrate is of opinion from the evidence that the offence committed is one which he is not competent to try or is otherwise incompetent to deal with it. Such is not however the case here. Although the Full Bench of the Kerala High Court has decided in the manner as stated before, our High Court has taken a different view. It will appear from a case reported in Amarendra Nath v. Raghunath Nandan : AIR1952Cal849 that the Division Bench decided that there is nothing in Section 346, Criminal Procedure Code to show that that section has no application to cases of want of territorial or local jurisdiction. On the other hand, the use of the words 'some other Magistrate in such district' and 'such other Magistrate having jurisdiction' in Section 346(1) may reasonably be construed to indicate that cases of want of local or territorial jurisdiction are also included within the scope of Section 346. The section is therefore wide enough to comprehend also cases of want of local or territorial jurisdiction. In all cases of defective jurisdiction, local or territorial or otherwise whatsoever, action under Section 346 can be taken provided the other conditions, mentioned in the said section, are or can be satisfied. Their Lordships have farther held that when on the day of framing the charge the Magistrate was of opinion that on the prosecution evidence the offence appeared, to have been committed outside the local limits of his jurisdiction and as such he had no jurisdiction and the complainant applied for transfer under Section 526, Criminal Procedure Code, it was held by this Court in this decision that having regard to the peculiar circumstances of the case and the progress already made therein there was sufficient justification for the exercise of powers under Section 526(1)(i) Criminal Procedure Code.

4. After carefully considering the arguments as advanced by the learned Advocate of both sides it appears to us that we have noreason to differ from the decision as made by the Division Bench of this Court as to the scope of Section 526(1)(i), Cr. P. C.

5. In the circumstances we are of the opinion that since considerable progress in the case, which is pending since 1961, has been made and its completion is in sight, it is necessary for the ends of justice, for the sake of expediency and for general convenience that the learned Magistrate before whom the case is pending should try the case. We hereby direct that the case be tried by the Magistrate of the 1st class at Sealdah in whose Court the case is pending and disposed of as expedition sly as possible.

6. The Rule is made absolute in the above terms.

7. Let the learned Magistrate be informed at once and the records be sent down as expeditiously as possible.

T. P. Mukherji, J.

8. I agree.

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