1. These two Rules arise out of certain proceedings-(Case No. c 649/446 of 1950 of the Court of the First Class Magistrate, Barrackpore) -started on a complaint to the effect, inter alia, that by false and fraudulent representations the five accused persons had induced the complainant to advance a sum of Rs. 11000 to accused l on a mortgage of certain land, situate at Baranagore within the District of 24-Parganas.
2. The complaint was filed before the Sub-Divisional Officer of Barrackpore on 9th May 1950, and on that very date the accused were summoned under Section 420, Penal Code. After several dates the trial actually commenced on 13th September 1950 and between that date and 12th January 1951 six prosecution witnesses were examined and cross-examined before charge. Thereafter, arguments were heard on two dates and, eventually, the case was adjourned to 1st February 1951 for the framing of charge. On that day the learned trying Magistrate expressed the view that, on the evidence, the offence if any, had been committed outside the local limits of his jurisdiction and as such he had no jurisdiction to try the case. Thereupon, the complainant's lawyer asked for time to consider the position and the learned Magistrate postponed passing orders till the next day, namely, 2nd February 1951. On this latter date, the complainant applied for time to move this Court under Section 526, Criminal P. C. and, the usual bond having been furnished, the learned Magistrate granted him time till 2nd March 1951. On 19th February 1951, the complainant moved this Court under Sections 439 and 526, Criminal P. C. and obtained Rule No. 172 of 1951. The other Rule (No. 223 of 1951) was, thereafter, obtained by accused 2 and 3 for the quashing of the proceedings (Case No. G 649/446 of 1950 aforementioned) pending against them.
3. The two Rules have been heard together and. all relevant materials have been placed before us by the learned Advocates appearing for the parties.
4. In our opinion, there is no substance in the Rule (No. 223 of 1951), obtained by accused 2 and 3 and, upon the materials on record, no case has been made out for any quashing of proceedings at the present stage. We, accordingly, discharge that Rule.
5. In the other Rule (No. 172 of 1951), the learned Advocate, appearing for the petitioner, has not sought to argue-and on the materials on record it cannot be argued-that the learned Magistrate has local jurisdiction to try the case, but the learned Advocate has pressed two points for our consideration, namely :
(1) that in the circumstance of this case the learned Magistrate has power and ought to take action under Section 346, Criminal P. C. and
(2) that, in any event, having regard to the progress made and the circumstances, this is a fit case where we should exercise our powers under Section 526 (l) (i), Criminal P.C. and order the trying Magistrate, before whom the proceedings are pending, to proceed with the trial.
6. In our opinion, there is considerable force in both the above contentions, raised on behalf of the petitioner. There is nothing in Section 346, Criminal P. C. 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), Criminal P. C. may reasonably be construed to indicate that cases of want of local or territorial jurisdiction are also included within the scope of Section 346, Criminal P. C. This view is supported by the decision in the case of In re : Munisami, 2 Weir 32'3'. It is also well to remember in this connection that absence of local or territorial jurisdiction is, under the Code, a mere irregularity, readily curable, and is of much lesser gravity than want of other jurisdiction. (Vide Sections 526 (l) (i), 530 and 531, Criminal P. C). In such circumstances, we are not inclined to agree with the obiter dictum in D.M. of Cuddappah v. Abdul Karim, A. I. R. 1943 Mad. 526 to the contrary effect and we hold that Section 346, Criminal P. C. is wide enough to comprehend also cases of want of local or territorial jurisdiction. In our judgment, in all cases of defective jurisdiction, local or territorial or otherwise whatsoever, action under Section 346 can be taken provided that the other conditions, mentioned in the said section, are or can be satisfied. In our opinion, therefore the learned Magistrate has power in the present case to act under Section 346, Criminal P. C.
7. We are also of the opinion that, having regard to the peculiar circumstances of this case and the progress already made therein before the learned Magistrate, there is sufficient justification for the exercise of our powers under Section 526 (1) (i). Criminal P. C.
8. In the above view of the matter, it seems to us that the proper order-an order expedient in the present case for the ends of justice would be to direct the learned trying Magistrate to proceed with the trial of the case and we order accordingly. In view of our said order, the question of taking steps under Section 346, Criminal P. C. by the learned Magistrate will not arise at this stage, but the learned Magistrate will consider that question, if occasion arises therefor at any future time, and will decide it in accordance with law in the light of our opinion expressed above.
9. The result, therefore, is that Rule No. 223 of 1951 is discharged and Rule No. 172 of 1951 is made absolute and the learned trying Magistrate is directed to proceed with the case in accordance with law in the light of the observations which, we have made above.