1. This is a petition for setting aside an order of transfer of a case, purporting to be under Section 192, Criminal P.C.
2. The case concerned was transferred under the following circumstances: On 7-11-1952, Mr. P.C. Bala, Magistrates 1st class, Bankura, took cognizance of the case and adjourned it to the 13th. Mr. Eala not being available on the last mentioned date, another 1st class Magistrate, Mr. Moitra, dealt with the General File and transferred the case to his own file, although he had not taken cognizance of the case. Therefore, the actual trial commenced and proceeded before Mr. Moitra. It is this order of Mr. Moitra transferring the case to his own file that is sought to be set aside by this application.
3. Section 192 is in these terms :
'192. (1) 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.
(2) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly.'
It is clear from the terms of the section that the jurisdiction of any of the Magistrates mentioned in it to transfer a case to some other Magistrate is founded upon the former having taken cognizance of the case. It is common case that Mr. Moitra, not having taken cognizance of the case, had no power under the section to transfer it to his own file. The question, therefore, is whether the transfer and the subsequent proceedings before him were nevertheless valid by reason of the provisions of Section 529 of the Code. The material part of Section 529 is as follows :
'If any Magistrate not empowered by law to do any of the following things, namely: (f) to transfer a case under Section 192;erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.'
It would seem, therefore, that want of jurisdiction to transfer a case under Section 192, by reason of the transferring Magistrate not having taken cognizance of the case, would not render invalid the subsequent proceedings before the transferee Magistrate, provided it is shown that the transfer concerned was made erroneously and in good faith.
4. There has been a fair amount of case-law on the subject, A recent decision of a Division Bench in -- 'Sm. Tulsibala Rakshit v. N.N. Ghosal', : AIR1953Cal109 (A) was cited to us. We should have thought, however, that the words of Section 529 were sufficiently clear as to the circumstances under which any defect of the nature concerned could be remedied. It is conceded on behalf of the State that there is a general impression amongst the Magistracythat the transfer of a case by a Magistrate, of which he has not taken cognizance, while dealing with the General File of the Sub-Divisional Officer, who is on some other duty, is curable by Section 529, even though the transferring Magistrate is conscious of the requirements of Section 192. It is urged that a strict adherence to the provisions laid down in Section 192 would render the day-to-day work of the Sub-Divisional Officer almost impossible when he should happen to be away on other work. The argument in short is that the disregard of the provisions of Section 1'92 is the result of a pressing necessity and that what js done is done honestly and in good faith. We have not the least doubt that such a transfer is usually done in gcod faith. The question, however, is, is it done erroneously? The answer to this, one way or the other, involves, on the one hand, gross ignorance, and, on the other, a conscious disregard of the provisions of Section 192.
In the case before us, the learned Magistrate has submitted an explanation in which occurs the following statement:
'The cognizance of the case was taken by Sree P.C. Bala, Magistrate, 1st Class, Ban-kura on 7-11-52' and on next date viz 13-11-52 Sree Bala was deputed to do other work by District Magistrate and I was deputed by District Magistrate to take up General File and Police papers. I transferred the case to my file on that day in good faith as S. D. O. was absent, and hence the error, if any, is curable under Section 529, Cr. P.C.'
We accept the learned Magistrate's explanation that what was done was done in good faith. It is significant, however, that he thinks that the error, if any. is curable under Section 529. This explanation would suggest that the learned Magistrate was aware of the provisions of Section 192. That is why, in our view, he has not stated that the transfer was done erroneously. We agree that the procedure required under Section 192 would make it difficult for the proper disposal of the General File when the Sub-Divisional Officer should be absent on other important work. Having regard to the practical difficulty which a strict compliance with the provisions of Section 192 involves, some provision to avoid the difficulty appears to us to be necessary by way of an amendment of either Section 192 or Section 529, Cr. P.C.
Our attention was drawn to the case of --'Ramkrishna Sinha v. Emperor' : AIR1938Cal195 as justifying the procedure adopted in the case before us. We do not, however, discern in that case any proposition contrary to what we say. In our view, the defect of jurisdiction complained of here can be cured under Section 529, if the conditions mentioned in the section are fulfilled. In our view, the transfer concerned not having been done erroneously, although it may be said to have been done in good faith, both the transfer and the subsequent proceedings were without jurisdiction.
5. Mr. Mukherjee on behalf of the petitioners intimates that his clients do not desire a 'de novo' trial. We do not see how an undertaking by Counsel can preclude the petitioners from asserting their rights under the law. The petitioners' anxiety appears to have been to avoid their trial before the particular Magistrate. Their application for transfer under Section 528, Cr. P.C. was dismissed by the learned District Magistrate. In this application Mr. Mukherjee has not referred to any fact or circumstance which can be said to raise a ground for transfer. Mr. Mukherjee's grievance is that the 'de facto' complainant in the case and a doctor witness were not produced on the date the defence wanted them to attend for cross-examination. The learned Magistrate's order of 26-12-1952, however, negatives the allegation. What happened was this: on that date the petitioners asked for an adjournment on the ground that their lawyer was not available to cross-examine the prosecution witnesses. That being so, it was of no consequence to them that the witnesses asked for were not present on that date. In our view, the order of 26-12-1952, was wholly justified.
6. In view, however, of our decision that the transfer concerned was without jurisdiction and not curable under Section 529, the transfer not having been done erroneously, we set aside the order of the learned Magistrate, dated 13-11-1952, transferring the case to his own file, and we direct that Mr. Bala, who had taken cognizance of the case, should either try the case or transfer it to any learned Magistrate of, his own choice.
7. Subject as aforesaid, the Rule is made absolute.
8. I agree.