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Judgment
Third Addl. Sessions Judge Srinagar vide his order of reference dated 271988 has recommended for Setting aside the two orders dated
2451988 and 2851988 passed by SubDivisional Magistrate, Srinagar, in proceedings u/s 133 Cr. P. C., also to quash the said proceedings in to.
I have heard learned counsel for both the parties and have examined the record.
It appears that an application came to be filed u/s 133 Cr. P. C. by respondents before District Magistrate, Srinagar who in turn passed an
order dt. 1121987 which was challenged before the' 2nd Addl. Sessions Judge, Srinagar, and referred by way of reference for being set aside and
ultimately the reference was accepted and the matter was referred back to the District Magistrate vide this court order dated 1061987. It appears
that on receiving the file from this court, the District Magistrate, vide his order dated 471957 transferred the proceeding to SDM Srinagar, which
action also has been recommended to be set aside. The SubDivisional Magistrate appears to have conducted the inquiry and heard oral arguments
of counsel for the parties, even received written arguments of the parties, reserving the judgment for being announced on 2851988. It appears that
in the meantime, on 2451988, the petitioners appear to have submitted an application to the S. D. M. for production of evidence in the
proceedings reserved for judgment as no evidence was adduced by the petitioners, the learned S. D. M. has recorded an order on the very
application allowing the prayer to adduce evidence without giving opportunity to the respondents to oppose the prayer which order was sought to
be revised by a revision petition before the 3rd Addl District Judge, Srinagar, together with order dated 2851988 under which the petitioners'
witnesses have been ordered to be summoned as per prayer allowed vide order dated 2451988.
The learned. 3rd Addl. Sections Judge, after hearing the parties and engaging lot of paper space, for recording the order of reference and finally
made a referance to this court recommending that the order to District Magistrate transferring the case to SubDivisional Magistrate dated 471978
be set aside being without jurisdiction, further order dated 245'88 allowing the prayer for adducing the evidence by the petitioners after the
arguments were closed and an order dated 2851988 for summoning the witnesses of the petitioners consequent to order dated 2451988 be also
set aside and proceedings before the SubDivisional Magistrate quashed.
As regards order dated 2451988 for allowing the prayer to adduce evidence after oral arguments and written submissions have been advanced
and judgment reserved, the order apparently on examination of record appear to have been passed behind the back of the respondents without
any notice to them for the fact, tne day the application was presented, order on the face of it got recorded. I Once the judgment was reserved in
the matter, the application filed By the pensioners for additional evidence could be considered only by the Sub Divisional Magistrate after issuing
notice to the contesting respondents for filing the objections what has not been done, therefore, the order dated 24588 of S. D. M. appears an
arbitrary action defeating the principles of natural justice to hear the party contesting the proceedings, therefore, the order defects legally and
cannot be sustain ed under law and has been rightly recommended for being set aside, despite the trial court having observed that the respondents
counsel at one stage i.e. on 2441988 had declined to file the objections to an identical application filed by the applicants, which has not been
referred, but that order too which indicates the respondents have declined to file the objections appeals to have been passed by some clerk as the
presiding Officer was not available on that date, therefore, the assertion declining to file the objections indicated in the order does not carry any
legal force having been passed by some official not authorised to hear the matter.
Then is the order dated 2851988 under which the witnesses of the petitioners have been ordered to be summoned. This order is consequent to
order dated 2451988 which order is observed illegal for opportunity to the respondents to file objections before that order could follow Therefore,
the basic order dated 2451988 being defective under law, will not legalise any action by the trial magistrate in the shape of order dated 2851988
consequent to that order for summoning the witnesses and same is liable to be set aside as recommended by the revisional court.
Then is the question that this court vide its order dated 1061987 after acceptance of reference having specifically remitted back the file to
District Magistrate to conduct the proceedings in accordance with section 133 Cr. P G., the learned District Magistrate unmindful of the directions
contained in the order of this court indicated vide his order dated 471987 transferred the file to SubDivisional Magistrate Srinagar, for reasons that
due to other Govt. work he is not able to conduct the proceedings.
The point involved has reference initially to the provisions that all Executive Magistrates in a district are subject to general control of the District
Magistrate. The District Magistrate like a Chief Judicial Magistrate for criminal matters has a power to allocate business or transfer criminal cases
to executive magistrates within his jurisdiction.
As regards 133 Cr. P. C. proceedings both the District Magistrate and Sub Divisional Magistrate have concurrent jurisdiction to conduct the
proceedings.
The case in hand was pending, before. District Magistrate at the time first reference came to be disposed by this court remitting the matter
back to him for disposal in accordance with law. The District Magistrate on receiving the file after some time the over the file to SubDivisional
Magistrate, Srinagar, doe to shortage of time available to him. This action of the District Magistrate is apparently condemnable for the reason he
should have referred the file back to the High court for his inability to conduct the proceedings whether due to shortage of time or any other
reason, what he failed to do but in turn proceedings have been transferred to Sub Divisional Magistrate who has completed the same, even after
hearing reserved judgment in the matter, The parties have participated in the proceedings before that court. The point of transfer by Distt.
Magistrate was raised before the revisional court short of agitating the point in the revision itself. It does not appear to reason now to quash the
order transferring proceeding to SDM, particularly, when SDM has jurisdiction concurrent with Distt. Magistrate to take cognizance of the matter
and dispose of the proceedings u/s 133 Cr. P. C. The fact is that the case was not transferred from any other court to District Magistrate, but
remitted hack to him the proceedings to proceed in accordance with law therefore, the argument of learned counsel for the petitioner will not hold
good for the reason that the District Magistrate was not specifically empowered by that High court to retransfer the proceed dings to some other
court. The action of the District Magistrate transferring the proceedings to the Sub Divisional Magistrate is a mere irregularity, but the proceedings
before the transferred court I will not vitiate for the simple reason that SDM has jurisdiction to conduct the proceedings, particularly, when no
action has been taken by the Distt. Magistrate except adjournments after receipt of the file from the High court till the same were transferred. Thus,
the irregularity of retransferring the proceedings to SDM is of mere technical nature and same cannot be allowed to defect the proceedings before
the SDM, who as observed, has jurisdiction to conduct the same. However, the point involved by retransferring the proceedings by a court after
the same are transferred by the High court, the transferee court if for some reason is not in a position to conduct the legal proceedings transferred
to it, the proper course for that court is to refer the matter back to the High court after recording specific reasons for appropriate orders, what the
District Magistrate has omitted to do in the case and such a course is normally expected by the executive courts some time being short of legal
knowledge or being more devoted to administrative affairs and unaware of legal nieties.
Having regard to the observations made, I am of the opinion that the proceedings before the, SDM cannot be quashed for reason he having
jurisdiction in the matter with added reasons proceedings have been completed and parties having participated short of such objection at the intitial
stage. The reference on this point is treated misconceived.
As regards the orders dated 24th and 28th May, 1988, which are interdependent and cannot be justified under law as discussed for the reason
order dated 2451988 reopening the case for evidence for applicants after the judgment was reserved is held arbitrary short of opportunity to
respondents to oppose the same, consequently order dated 2851988 summoning the witnesses of the respondents/applicants in accordance with
order dated 2451988 will not stand in the eye of law. The result is that the reference to the extent of setting aside orders dated 24th and 28th May,
1988 is accepted and the two orders of the SDM are set aside. The file is remitted back to the SDM to dispose of the application of the applicants
dated 2451988 afresh for adducing evidence after inviting objections and hearing the parties on the point and dispose the main matter as
expeditiously as possible.
The reference is accordingly disposed of.