Gobind Swain and others vs The King-Emperor

Mullick, J.—The complainant filed a complaint against his landlord and two other persons alleging that he had been beaten by them and that the landlord had taken four thumb impressions from him and two thumb impressions from his brother upon blank pieces of paper with the intention of using them hereafter.

The Sub-Divisional Magistrate before whom the complaint was lodged directed a police inquiry and finding that the charge of extorting the thumb impressions on blank pieces of paper with the intention that they might be hereafter converted into valuable security was false, he issued processes under S. 352, I.P.C., against Golab Khan and made the case over to a Bench of two Honorary Magistrates. The Honorary Magistrates after examining three witnesses thought that a case was made out against the Zemindar and one of his servants and they issued processes against these persons also. The trial was begun afresh and a number of witnesses were examined and cross-examined. At this stage the complainant applied to the District Magistrate and prayed that the case should be transferred to some other Court as the Bench Magistrates have no jurisdiction to try a charge under S. 384, I.P.C. The District Magistrate, without issuing any notice upon the accused, acceded to that request and he has transferred the case to another Magistrate empowered to try the case.

Now, it is clear that the omission to issue a notice upon the accused before ordering the transfer was certainly irregular. I cannot go so far as to say that it was illegal and that S. 528, Cr. P.C., empowers a Magistrate to make an order of transfer only after issuing notice to the person affected. The section is general in its terms and although, as a rule of practice, it is desirable that notices should be issued, I cannot say that the law is mandatory upon the point and that the omission to issue notice is in itself a reason for setting aside an order of transfer. But upon the merits I think there is good ground for objecting to the learned District Magistrate''s procedure. Here the case for the prosecution has been practically closed and even though the Bench Magistrates may have expressed the opinion that the graver charge under S. 384, was in their opinion not sustainable, I doubt whether that circumstance would be any justification for an Appellate Court''s removing the case from the jurisdiction of the tribunal which was seised with it. It is not the object of S. 528 that a case should be transferred merely because it is going against a particular party. Here it will be open to the complainant, after the disposal of the case under S. 352, I.P.C., which is the only offence which the Bench Magistrates are investigating, to move the officer empowered to take cognizance thereof, to proceed with the trial of the charge under S. 384, I.P.C.; and the proposal that the case should now be tried by another Court will really effect no saving either of time or trouble. In any event there will have to be a fresh trial by the officer to whom the learned District Magistrate has transferred the case.

I do not therefore think that, in the present instance, sufficient reason has been shown for removing the case from the file of the Bench Magistrates and transferring it to another Magistrate.

The Bench Magistrates have full jurisdiction to disbelieve the allegations as to extortion and to convict or acquit on the charge of simple assault and nothing should be done by the Appellate Court that may give rise to any impression that an attempt is being made to interfere with the judgment of the trial Court.

In these circumstances the order of the District Magistrate will be set aside and the case will proceed in the Court of the Honorary Magistrates from the stage at which it was left when the order of transfer was made.

Kulwant Sahay, J.

I agree.