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Mahabir Singh and anr. Vs. Giribala Dassi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal742
AppellantMahabir Singh and anr.
RespondentGiribala Dassi
Excerpt:
- 1. the complaint in the present ease was filed before mr. d. dutt, deputy magistrate of howrah, on the. 10th may, 1924, and he on examining the complainant was of opinion that it was apparently a petty altercation and he made an order that babu h.p. roy chaudhury, an honorary magistrates should enquire into it and submit a report. this order was evidently passed under the provisions of section 202, cr. p.c. in ordinary course on the report of mr. h.p. roy chaudhury being submitted mr, d. dutt could have either dismissed the complaint or issued process. matters, however, took quite a different turn. after several adjournments in consequence of the report not having arrived, mr. d. dutt on the 1st august, 1924 passed an order which ran as follows :-the cross-case has been disposed of by mr......
Judgment:

1. The complaint in the present ease was filed before Mr. D. Dutt, Deputy Magistrate of Howrah, on the. 10th May, 1924, and he on examining the complainant was of opinion that it was apparently a petty altercation and he made an order that Babu H.P. Roy Chaudhury, an Honorary Magistrates should enquire into it and submit a report. This order was evidently passed under the provisions of Section 202, Cr. P.C. In ordinary course on the report of Mr. H.P. Roy Chaudhury being submitted Mr, D. Dutt could have either dismissed the complaint or issued process. Matters, however, took quite a different turn. After several adjournments in consequence of the report not having arrived, Mr. D. Dutt on the 1st August, 1924 passed an order which ran as follows :-The cross-case has been disposed of by Mr. A. C. Bose. This case is therefore sent to him for disposal.' It may be said that there was a cross-case which had in the meantime been disposed of by the Deputy Magistrate Mr. A. G. Bose. On the 2nd August, 1924 Mr. A.C. Bose looked into the report of H.P. Roy Chaudhury, Honorary Magistrate, which it is said had already been submitted before Mr. D. Dutt and which evidently had been sent along with the papers to Mr. A. C. Bose, and finding from the report that there was no case against the accused persons dismissed the complaint under Section 203, Cr. P.C. In doing so, it may be stated, Mr. A. C. Bose referred also to the fact that he had disposed of the cross-case. Thereafter the complainant filed a petition for revival, the proceedings in connection with which need not be referred to in detail with the result that ultimately Mr. A. C. Bose issued summons against the Petitioner.

2. The validity of the proceedings in connection with their transfer from the file of Mr. D. Dutt to that of Mr. A. C. Bose is challenged on behalf of the Petitioners and it is contended that Mr. A. C. Bose was not properly in seisin of the case and any order issuing process passed by him must accordingly be held to be an order passed without jurisdiction.

3. We have already stated that Mr. D. Dutt on receipt of the complaint had chosen to proceed under the provisions of Section 202, Cr. P.C. When he had done so evidently he thought of proceeding under Section 192 (1), Cr. P.C., as well. That subsection empowers the Magistrate to transfer a case for enquiry or trial, but it does not empower him to transfer a case simply for the purpose of considering the report of an investigation under Section 202, Cr. P.C. which he has himself ordered. In the present case Mr. A. C. Bose did not proceed under Section 202, Cr. P.C. but all that he did was to act upon the report of the Honorary Magistrate which had been called for under the provisions of Section 202, Cr. P.C. by Mr. D. Dutt and without examining the complainant he dismissed the complaint under Section 203, Cr. P.C., as stated above.

4. We do not think that the provisions of Section 192 or of Section 202 entitled a Magistrate after he has proceeded under the latter section to make an order under the provisions of the former section transferring the case for the purpose of being dealt with under Section 203 or Section 304, without a fresh investigation as contemplated by Section 202, Cr.P.C. Mr. A.C. Bose was in our opinion not in proper seisin of the ease as the transfer to him at that stage and in the circumstances stated above cannot be justified under any provision of the law. His subsequent order issuing process against the accused must accordingly be held to be without jurisdiction.

5. The Rule, therefore, is made absolute. The order issuing process is set aside, and it is directed that complaint be put up before a Magistrate competent to deal with it, who on examining the complainant afresh will proceed to pass proper orders in accordance with the provisions of the law.


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