1. References Nos. 60 and 61 of 1940 have been made to this Court by the learned Sessions Judge of Chittagong with his letter, dated 14th March 1940. They arise with reference to two accused persons who were convicted respectively in two separate cases under Sections 427 and 447, Penal Code. In the first of these cases Nurul Huq was convicted by Rai Saheb Aparna Charan Ray, Honorary Magistrate of Chittagong on 5th February 1940 and sentenced to pay a fine of Rs. 40 and in the second case Aminal Haque was convicted by the same Honorary Magistrate on the same date and sentenced to pay a fine of Rs. 25. These two references have been heard together with a rule issued in Criminal Revision Case No. 437 of 1940 as the main points for consideration in the two references and the rule are similar.
2. In the first of these cases a man named Hafizar Rahman had filed a complaint on 19th February 1939 against certain persons in respect of alleged offences under Sections 427, 447 and 352, Penal Code. The main allegation was to the effect that the accused persons had committed mischief in respect of the complainant's land while they were engaged in cutting a khal. An enquiry was held under the provisions of Section 202, Criminal P. C., and thereafter one of the accused persons, Aminar Rahaman, was summoned. He appeared on 9th June 1939 and the case was then transferred to the learned Honorary Magistrate for disposal. Aminar Rahaman died on 15th August 1939. Thereafter, on 18th August 1939, the complainant filed a petition in which he stated that the other accused persons were taking advantage of Aminar Rahaman's death and were threatening to take possession of the complainant's land by force. He also stated that there was ample evidence against all the accused persons and in these circumstances he asked that the other accused might be summoned. The learned Honorary Magistrate then directed that one of the other accused persons, Nurul Haque, should be summoned. The case then proceeded to trial and this person was duly convicted under Section 427, Penal Code.
3. The second case related to a portion of the same land that was in dispute in the case under Section 427, Penal Code. It arose with reference to a complaint filed on 17th April 1939 by Hafizar Rahaman against eight accused persons in which it was alleged that they had committed offences on 12th April 1939, under Sections 447, 504 and 143, Penal Code. In this case it was alleged that the accused persons had trespassed into plot No. 7323, which was in the possession of Hafizar Rahaman, and had encroached on the same by putting a fence round it, ploughing it and planting trees thereon. In this case also the learned Sub-divisional Magistrate directed an enquiry under Section 202, Criminal P. C., and he summoned Aminar Rahaman on 1st June 1939. Thereafter, on 9th June 1939, he transferred the case to the learned Honorary Magistrate for disposal. After Aminar Rahaman's death on 15th August 1989 the complainant filed a petition similar in terms to the one which was filed in the case under Section 427, Penal Code, with the result that the learned Honorary Magistrate summoned one of the other accused persons, Aminal Haque, who was in due course convicted under Section 447, Penal Code. In referring these two cases to this Court under the provisions of Section 438, Criminal P. C, the learned Sessions Judge of Chittagong expresses the opinion that in the first case the findings recorded by the learned Honorary Magistrate were insufficient to warrant a conviction, whereas in the second case he was of opinion that the accused had been convicted on inadequate evidence. The main ground, however, upon which the learned Judge referred these two cases was that, in his view, the learned Honorary Magistrate had no jurisdiction to summon persons against whom process had not been issued by the Sub-divisional Magistrate before the cases were transferred to him. In this connexion, he refers to Section 204, Criminal P. C., and states that:
It would prima facie appear that the 'case' is, for issue of summons upon the accused, to go back to the file of the Magistrate who took cognizance of the 'offence.' It would, therefore, also seem that a Magistrate who has not taken cognizance of an 'offence' has no jurisdiction to summon an accused person.
4. He goes on to say:
In my view, when a case has been transferred for trial to a subordinate Magistrate, with one accused summoned and appearing, the death of that accused terminates the case and the jurisdiction of the Magistrate. The complainant's remedy is to make another complaint before the Sub-divisional Magistrate. I submit that the subordinate Magistrate has no jurisdiction to summon another accused.
5. The learned Judge concludes his letter as follows:
In all the circumstances I consider that the convictions should be quashed, and I request that the Hon'ble High Court will rule whether a subordinate Magistrate, whether with or without taking evidence, has jurisdiction to summon and prosecute, in a case which has been transferred to him for disposal after the accused who was summoned by the Sub-divisional Magistrate has appeared person other than the accused before him.
6. Criminal Revision Case No. 437 of 1940 relates to three petitioners who were convicted under Sections 426 and 447, Penal Code, by Babu Bhupendra Nath Ghosh, Honorary Magistrate of Tippera, on 17th January 1940. Originally, two other persons had been summoned in this case by the learned Sub-divisional Magistrate of Tippera who, on 7th June 1939, transferred the case to the learned-Honorary Magistrate for disposal. On 25th July 1939 the complainant was absent and the learned Honorary Magistrate acquitted the accused persons before him under Section 247, Criminal P. C. Later, on the same day, the complainant filed an application in which he asked that process might issue against the other accused persons who had not been summoned by the Sub-divisional Magistrate and the learned Honorary Magistrate thereupon summoned the petitioners under Sections 447 and 426, Penal Code, and in due course convicted them under those sections. The only ground upon which the rule was issued in this case was that the learned Honorary Magistrate had no jurisdiction to summon the petitioners. The main point for consideration in these cases is whether a Magistrate to whom a ease is transferred under the provisions of Section 192 (1), Criminal P. C. by reason of such transfer becomes vested with the same powers in respect of the ease transferred to him as may be exercised by the Magistrate from whom he receives it on transfer. Section 192 (1) of the Code is in the following terms:
Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
7. It is, of course, obvious that the Magistrate to whom a case is transferred under; Section 192 must be empowered to try it, otherwise the trial would be void under the provisions of Section 530 of the Code. In these cases, however, there can be no doubt that the learned Honorary Magistrates had jurisdiction to try the cases under Sections 426, 427 and 447, Penal Code. The expression 'cognizance' has not been defined in the Code. This expression is also used in Section 190 (1), Criminal P. C., which empowers certain Magistrates to take cognizance of offences. On this point Stephen and Carnduff JJ., pointed out in Emperor v. Sourindra Mohan ('10) 37 Cal 412 that
taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.
8. Section 192 (1), however, refers not merely to take cognizance of offences but to cases of which cognizance has been taken and the language used is wider in its character than that which has been employed in Section 190 (1). It would, therefore, appear that cognizance may be taken by a Magistrate of any matter in respect of which an enquiry or trial may be held under the provisions of the Criminal Procedure Code and, in taking cognizance of an offence or other case, for example, cases under Sections 107, 110 or 145 of the Code, a Magistrate merely takes seisin of the matter for the purpose of exercising the specific powers with which he has been vested under the Code in connexion with the case in question. As soon as a Magistrate duly empowered has taken cognizance of a matter, there is a case before him which he is competent to transfer to a subordinate Magistrate under the provisions of Section 192 (1) of the Code. Although Section 192 appears in Part VI of the Code relating to proceedings in prosecutions, it has nevertheless been held from its terms that it is sufficiently wide to cover cases under the Code other than criminal cases. In this connexion, Macpherson and Gordon JJ., observed in Satish Chandra Panday v. Rajendra Narain Bagchi ('95) 22 Cal 898 that
the power of transfer conferred upon Magistrates and Sub-divisional Magistrates is a general power, and unless cases under Chap. XII are expressly excluded, it must extend to them also. It is argued that Section 192 applies only to criminal cases, as it occures in a chapter which deals with offences, and the preceding section relates to the cognizance of offences. The words are, however, quite wide enough to include cases under Chap. XII. We may observe also that in. the Code of 1872, Section 44, which is the section corresponding to Section 192, provided only for the transfer of 'criminal cases.' By the amending Act 11 of 1874, the word 'criminal' was struck out, and it has been omitted from all the subsequent enactments.
9. Again, in Lolit Mohan Moitra v. Surja Kanta ('01) 28 Cal 709 Ghose J. holds that a Magistrate, taking cognizance of a case under Section 145 is a criminal Court within the meaning of the Code and he also refers to cases under Sections 107 and 110 of the Code as criminal cases which District Magistrates or Sub-divisional Magistrates would have jurisdiction to transfer under Section 192 of the Code. Further, in Chintamon Singh v. Emperor ('08) 35 Cal 243 Rampini and Sharfuddin JJ. said:
It is to be observed that the expression used in Section 192, Clause (1), Criminal P. C, is 'any case,' and not any 'criminal case.' It has been contended that Section 192, Criminal P. C., applies only to criminal cases, as it is part of a chapter which deals with offences, and the preceding section relates to the cognizance of offences. The words are however quite wide enough to include cases under Chap. VIII, Criminal P. C.
10. It is therefore clear that the Magistrates mentioned in section 192 (1) of the Code have power to transfer cases to subordinate Magistrates either for the purpose of holding a trial, for example, under chapter XX or Chap. XXI of the Code, or for inquiry, for example, under chaps. VIII, XII or Chap. XVIII of the Code. It is however argued that, in view of the terms of Section 204, Criminal P. C., the only Magistrate who has power to issue summons for the attendance of accused persons is the Magistrate who takes cognizance of the offence and that, in this view of the case, the learned Honorary Magistrates had no jurisdiction to issue process against any persons other than those who had been summoned by the Sub-divisional Magistrates before the cases were transferred by them. It is however clear from the provisions of Section 202 of the Code that the Magistrate who takes cognizance of an offence is not vested with an exclusive jurisdiction as regards the issue of process, as Section 202 provides that a Magistrate to whom a case has been transferred under section 192
may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against.
11. It follows therefore by implication that, if such a Magistrate has power to postpone the issue of process against an accused person, he has also power to issue process and that this power is not limited by the terms of Section 204. In this connexion, it was argued that the inquiry for which a case may be transferred under Section 192 (1) of the Code means an inquiry under S.202 and that the latter section merely empowers the subordinate Magistrate who has been directed to hold the inquiry to postpone the issue of process by the transferring Magistrate pending the result of the inquiry. The learned advocate contends that, if a prima facie case is made out, the subordinate Magistrate should send the case back to the transferring Magistrate who may then issue process under Section 204 of the Code and it is suggested that, if the superior Magistrate then wishes to transfer a case for trial, he may again transfer it under Section 192 (1) of the Code and at this stage the Magistrate to whom the ease is transferred would follow the procedure laid down in chaps, XX and XXI of the Code.
12. I am not prepared to accept the above argument. I have already pointed out that the term 'inquiry' in Section 192 (1) is used with special reference to such inquiries as are held in connexion with proceedings under chaps. VIII, XII and XVIII of the Code. The inquiry which is contemplated by Section 202, on the other hand, is merely for the limited purpose of ascertaining the truth or falsehood of a complaint in order to enable the Magistrate to decide whether an accused person should be summoned or the complaint against him should be dismissed under Section 203. The plain meaning of Section 192 (1) of the Code is that a case which is transferred to a subordinate Magistrate under that section is transferred to him in order that he may complete the inquiry or trial to be held in connexion with the case and take all requisite steps to that end. The holding of an inquiry under Section 202 in a suitable case is merely one of such requisite steps to be taken by a Magistrate who has taken cognizance of a case or to whom a case may have been transferred for trial under Section 192 (1). It is clear that, a Magistrate who orders an inquiry under Section 202 of the Code does not transfer the case at all. Ordinarily he merely retains the case on his own file and directs some suitable person to hold an inquiry and send the report to him. It follows therefore that an order for an inquiry under Section 202 of the Code cannot operate as a transfer under Section 192 (1). Another step requisite to the completion of the trial is the issue of process against the person or persons whom it is intended to prosecute, and I have already pointed out that the language of Section 202 of the Code shows that a subordinate Magistrate to whom a case has been transferred under Section 192 (1) has the power to issue such process. It therefore follows that, when once a case has been validly transferred to a subordinate Magistrate under Section 192 (1) of the Code, such Magistrate would have no authority to return the case to the transferring Magistrate in order that the latter might issue process under Section 204 and his duty would be to complete the trial according to law. It is true, as pointed out by the learned Sessions Judge that the usual practice throughout Bengal
is that the Sub-divisional Magistrate retains the case in his own file until after the accused summoned by him has appeared, and then transfers it for disposal to a Magistrate subordinate to him.
13. The learned Judge seems to hold the view that this is not the procedure contemplated by the Code. If, however, Sections 192 (1), 202 and 204 are read together, it is clearly-competent for the Sub-divisional Magistrate to follow this procedure and to transfer the case as soon as the accused has appeared or at any time thereafter when the case becomes ready for the inquiry or the trial. It would be equally competent for the Sub-divisional Magistrate to transfer the case to a subordinate Magistrate immediately after the complainant had been examined' and having regard to the provisions of Section 202 of the Code, it would then be for such subordinate Magistrate to decide whether he would issue process immediately or post-pone the issue of such process for the purpose of holding a preliminary investigation under that section for the purpose of ascertaining the truth or falsehood of the complaint. When however a case has been transferred under Section 192 (1) it is transferred for all purposes from the file of the superior Magistrate to that of the subordinate Magistrate and thereafter the superior Magistrate has no jurisdiction to issue any orders connected with the case except such as are contemplated under the provisions of Section 528 or Ch. XXXII of the Code. This was the view adopted by this Court in Golapdy Sheikh v. Queen-Empress (1900) 27 Cal 979, in which it was held that, where cognizance had been taken of an offence on a police report and the case had been made over to a subordinate Magistrate, so long as the case connected with that offence remained with the subordinate Magistrate, no other Magistrate was competent to deal with it and applications for warrants against other persons concerned in that offence should be made to the Magistrate to whom the case had been transferred and to no other Magistrate. A similar view was adopted by Stevens and Mitra JJ. in Radhabullav Roy v. Benode Behari ('03) 30 Cal 449 in which the learned Judges observed that:
We think that when once the District Magistrate made the case over for disposal to the Deputy Magistrate, it was out of his hands and he was not. competent to pass any order relating to it other than an order such as might have been made by him under Ch. XXXII of the Code.
14. It was also pointed out by Chotzner and Gregory JJ. in Hemendra Nath v. Emperor : AIR1929Cal192 that, in a case in which after issue of process the case had been transferred to another Magistrate who discharged the accused person against whom process had issued and then suo motu issued process against another person under Section 191 (c) of the Code, the trying Magistrate stood1 in the shoes of the Magistrate who had originally issued process and had full authority to deal with the case as if he himself has taken cognizance of it. From the above mentioned cases it follows that, when a case has been transferred to a Magistrate under Section 192 (1), Criminal P.C., that Magistrate has the same authority to deal with the case which has been transferred to him, as regards the issuing of processes and other matters connected with the inquiry or trial, as is vested in the superior Magistrate from whom he received the case on transfer.
15. It is, however, argued that the only cases which had been transferred were the cases against those persons who had originally been summoned by the sub-divisional Magistrate, namely Aminar Rahaman in the cases under Sections 447 and 427, I. P. C., and Asaruddin and Tamijuddin in the case under Section 447 read with Section 426, I. P. C. It is argued that, as a result of the preliminary investigations under Section 202 of the Code, the sub-divisional Magistrate who took cognizance of the cases was satisfied that there was sufficient ground for proceeding against those persona only and as he issued process only against them, it must be taken that he did not wish to proceed against the other -accused persons and, therefore, transferred to the learned Honorary Magistrate merely the cases of those persons whom he had summoned. In the first two cases the order of transfer was that 'the case is transferred to Rai Sahib A. C. Ray for favour of disposal.' In the other case the order of transfer was, to Babu B. N. Ghosh, Honorary Magistrate 'for disposal.' It was, however, held in Ajab Lal v. Emperor ('05) 32 Cal 783 : 2 Cr L J 524 that orders of this nature mean that the whole case is transferred so that it is competent for the subordinate Magistrate to issue process for the attendance of any persons whom he may consider to have been concerned in the commission of the offence. Henderson J. pointed out that:
It is not necessary in a matter of this kind that the entire case should be transferred. Whether such a transfer has been made is a question of fact depending on the intention of the officer making the order, which intention must be gathered from the order itself. Where no reservation is made, as in the cases cited and in the case before us, I should certainly conclude that the entire case (in the sense abovementioned) had been transferred.
16. A similar point came under consideration in In Re: Azim Sheikh's case ('08) 7 CLJ 249 In that case a complaint had been lodged against several persons and the Sub-divisional Magistrate after examining the complainant issued summons against one of the accused only. He passed no order with regard to the others. He then transferred the case to an Honorary Magistrate who, after taking evidence, acquitted the person who had been summoned, but issued process against one of the other accused persons. The learned Judges held that, as regards the question whether the Honorary Magistrate could take cognizance of the case as against Azim, it appeared that the Sub-divisional Magistrate took cognizance of the whole ease and transferred it under Section 192 to the Honorary Magistrate. They observed that
the fact, that he did not summon Azim, did not amount to a dismissal of the case as against Azim, nor could it annul the cognizance which he had already taken of the case as a whole. We think that the case must be regarded as having been transferred as a whole to the Honorary Magistrate, and indeed, it appears to us open to considerable doubt whether under the section a case can be transferred piecemeal.
17. The law with regard to this point seems now to be well settled and, as pointed out by Macpherson J. in Deonarain Singh v. Emperor ('33) 20 AIR 1933 Pat 244:
Since 1900 when the decision in 5. : 4 CWN 827, was given, there has been a cursus curies that once the Sub-divisional Magistrate having taken cognizance of an offence on a charge-sheet submitted by the police in circumstances like the present, has made over to a subordinate Magistrate the charge-sheet and the accused forwarded by the police in custody or bail with an order that the transfer is 'for disposal,' he has made over the judicial investigation into the offence and not merely the judicial investigation into the offence so far as regards the particular accused * * * * In the present instance, the order itself appears to show that the whole case was made over. If the whole case was made over, the Deputy Magistrate had full seisin of it.
18. I myself share the doubts expressed in In Re: Azim Sheikh's case ('08) 7 CLJ 249 as to the legality of the piecemeal transfer of a case under Section 192 (1), Criminal P. C., subject to the authority of a Magistrate who takes cognizance of an offence on complaint to dismiss the com-plaint as against some of the persons whom it is sought to prosecute and to leave the case open as against others. But, it is clear that, even if such piecemeal transfer is in certain circumstances valid, that portion of the case which has not been transferred must be clearly indicated in the order of transfer recorded by the transferring Magistrate who acts under Section 192, I. P. C. In the absence of a clear indication as to which part of the [case is retained on the file of the transfer. [ring Magistrate or some further indication to the effect that such Magistrate intended to dismiss the complaint against those accused persons in respect of whom he did not issue process, it must be taken that the whole case had been transferred to the subordinate Magistrate not only as against the accused persons actually summoned but against all other persons whom the subordinate Magistrate might consider to be implicated in the offence. In the cases with which we are now dealing, it is argued that the learned Honorary Magistrates had no material before them from which it was possible for them to reach an opinion that there was sufficient ground for issuing process. It is not necessary that the opinion to this effect within the meaning of Section 204, Criminal P. C., should be based on evidence in the case nor that the reasons for such an opinion should be recorded. In all the three cases the sworn statements, the reports of the enquiring officers under Section 202 of the Code and the petitions of complaint were before the learned Honorary Magistrates. It must be presumed that they had perused these documents and the other papers on the record and that, after having done so, they were of opinion that there was sufficient ground for proceeding against some of [the accused persons other than those in respect of whom process had originally been issued.
19. Further, I am not prepared to hold that [the death of Aminar Rahaman in the eases under Sections 447 and 427, I. P. C., had the effect of terminating the proceedings in those cases. The cases against the other accused persons mentioned in the petitions of complaint remained undecided until the Magistrate to whom the cases had been transferred thought fit to conclude the proceedings against them. There is nothing on the record to indicate that he did so and, in my view, the orders in the two cases (References Nos. 60 and 61 of 1940) which have been referred to this Court by the learned Sessions Judge of Chittagong and the other order which is the subject-matter of Criminal Revision Case No. 437 of 1940 were legal. The entire cases relating to the alleged offences covered by the complaints were transferred to the learned Honorary Magistrate and the proper procedure was adopted by them in all these cases. Finally, as regards the cases which are the subject-matter of the references made by the learned Sessions Judge of Chittagong it has been argued that the references should be accepted having regard to the defects in the judgments to which reference is made in the first part of the learned Judge's letter. As regards the case against Nurul Haque under Section 427, I. P. C., the learned Judge states that there is no finding in the judgment to the effect that the accused intended to cause loss to the complainant. He also refers to the insufficiency of the evidence. I have perused the judgment recorded by the learned Honorary Magistrate and it appears that the main finding is in the following terms:
I, therefore, hold that the accused party are not in possession of the eastern half of the R. S. plot No. 7323 as claimed by them. As to R. S. plot No. 7334 the defence has no answer to make and it is admittedly in possession of the complainant. The position, therefore, is that the complainant is in possession of both the R. S. plots Nos. 7323 and 7334 in full and upon the evidence adduced by the prosecution I hold that the accused party cut portions of those two plots and included the same in the khal as newly opened and thereby caused mischief to the complainant to the extent of about Rs. 60 as alleged by the prosecution.
20. In my view, this finding is sufficient. It is not necessary in a case of this sort to embody in the judgment the precise expressions which have been used in the section of the Penal Code, which defines the offence of which the accused person is convicted. In this case it is clear that the learned Magistrate applied his mind to the evidence and in finding that the accused had caused mischief to the complainant he must have been satisfied that the ingredients of the offence defined in Section 425, I. P. C., were present. As regards the case under Section 447, I. P. C, the main ground as regards the merits of the ease upon which the learned Judge recommends that the conviction should be set aside is that of inadequate evidence. Admittedly, a ground of this sort is not one on which this Court should interfere in revision. Appreciation of the evidence is a matter for the Courts which deal with the facts of the case. It is clear that there were materials before the learned Magistrate, which if believed would justify the conviction of the accused under Section 447, I. P. C. No appeal lies against this decision and the conviction is one with which I am not prepared to interfere. The result is that References Nos. 60 and 61 of 1940 are rejected and the rule issued in Criminal Revision Case No. 437 of 1940 is discharged.