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P.S. Mishra, J.—Heard Mr. Wasi Akhtar on the question whether after enquiry u/s 202 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') is taken up by the Magistrate taking cognizance, the Sessions Judge, exercising power u/s 408 of the Code Can direct the Magistrate to transfer the case to another Court of competent jurisdiction or not. Mr. Akhtar''s contention is that such a transfer, particularly in case of a case triable by a Court of Session has been inhibited by express language in proviso of sub-section (2) of section 202 of the Code.
It appears from the order-sheet of the case that when cognizance was taken and enquiry started in the Court of the Chief Judicial Magistrate, Motihari, the learned Sessions Judge ordered and accordingly the Chief Judicial Magistrate transferred the case to the file of another Judicial Magistrate Section 202 of the Code says-
"Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:"
This is circumscribed by the proviso which Mr. Akhtar has referred to, namely, the proviso to sub-section (2) of section 202 of the Code:-
"Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session he shall call upon the complainant to produce all his witnesses and examine them on oath:"
The word "Magistrate" in the proviso obviously includes the Magistrate authorised to take cognizance as well as the Magistrate to whom the case is made over u/s 192 of the Code. Section 192 of the Code says that any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. Section 408 of the Code empowers the Sessions judge to transfer cases, saying that he may do so by making an order for the ends of justice. Section 408 of the Code uses the expression "cases" and not either "enquiry" or "trial". A case may be pending for enquiry or trial, nonetheless the power conferred upon the Sessions Judge u/s 408 of the Code, in my view, is wide enough to cover transfer of a case pending enquiry u/s 202 of the Code.
One may go with the argument of Mr. Akhtar in reading the words used in the proviso to sub-section (2) of section 202 of the Code if a transfer u/s 192 of the Code is held impermissible after cognizance is taken by the Magistrate and the enquiry proceeds, Section 202 of the Code, however, makes a particular reference to any Magistrate to whom the case is made over u/s 192 of the Code. What may be warranted in the ends of justice should not be allowed to suffer on account of technicalities flowing from the language of the proviso u/s 202 of the Code. I am of the view that there is no error of law warranting interference with the order of learned Magistrate to whom the case was transferred u/s 192 of the Code by the Chief Judicial Magistrate following the order passed by the learned Sessions Judge u/s 408 of the Code. No other contention has been raised. This application is, accordingly, dismissed.
It has been brought to my notice that the petitioner no. 2, a woman, has been alleged to have given farsa blow. Learned counsel for the petitioner has submitted that her using farsa and acting in aggression in presence of her husband is improbable. I do not propose to go into this aspect of the matter at this stage. It shall be open to the petitioner no. 2 to press before the trial court this aspect of the case and seek discharge from the trial. The trial court shall also see that no unnecessary harassment is caused to the petitioner no, 2 by her frequent appearance in the court and/or any other cause. It shall be open to the petitioner no. 2 to make an appropriate application for exemption from personal appearance in day to day trial.