Mahadeb Karmakar vs Adhir Kumar Karmakar and Another

R.N. Dutt, J.—On an application by the petitioner before the Sub-Divisional Magistrate, Barrackpore, a proceeding u/s 133 of the Code of Criminal Procedure was started against the opposite parties and a conditional order was issued and they were asked to show cause. They appeared and showed cause before the Sub-Divisional Magistrate. Thereafter the Sub-Divisional Magistrate transferred the case to Shri M. N. Pramanick, Magistrate 1st Class, for disposal. Shri Pramanick examined witnesses, heard arguments but ultimately held that the transfer of the proceeding to him was incompetent and as such he dropped the proceeding. The petitioner has obtained this Rule against this order of the said Magistrate, Shri M. N. Pramanick.

When the opposite parties were directed to show cause, there was no specific direction as to whether cause should be shown before the Sub-Divisional Magistrate or any other Magistrate. We find that though the order does not specifically say that cause was to be shown to the Sub-Divisional Magistrate, the cause was in fact shown before him because there was no direction, that cause was to be shown before some other Magistrate. We then find that after cause was shown, the Sub-Divisional Magistrate transferred the proceeding to Shri M. N. Pramanick. The question for consideration is if such transfer is competent in law? On this point the latest Division Bench decision of this Court is contained in Bardeshwari (Barodeshwari) Prosad Battacharjee Vs. Rabi Nandan Saha, . The previous decisions on this point were considered by the Division Bench in this case. A. N. Sen, J. held in Pran Krishna v. Shyam Sundar, AIR 1949 Cal 637 that, no such subsequent transfer u/s 192 of the Code was competent. Sen, J., purported to rely on the decision in Inasaddar Ali and Others Vs. Isimulla and Others, . The Division Bench deciding Bardeshwari (Barodeshwari) Prosad Battacharjee Vs. Rabi Nandan Saha, , overruled A. N. Sen J. and held that such subsequent transfer can be made u/s 192 of the Code. Debabrata Mookerjee, J., no doubt followed the previous decision in Jhatu Charan Das and Another Vs. Bhanu Chandra Das, . Though this case was decided in February, 1956 it appears that the Division Bench decision in Bardeshwari (Barodeshwari) Prosad Battacharjee Vs. Rabi Nandan Saha, , decided in June, 1955 was not considered as obviously it was not brought to his Lordship''s notice. The Single Bench decision of the Allahabad High Court in Kishorilal Vs. State, was relied upon by the learned Magistrate. We may also refer to the Bench decision of the Rajasthan High Court in Ram Charan Vs. Residents of Shahabad Ward Baran and Another, . These decisions have no doubt held that Section 133 of the Code is self-contained and proceedings thereunder cannot be subsequently transferred u/s 192 of the Code. But as we have said the latest Division Bench decision of this Court has held in Bardeshwari (Barodeshwari) Prosad Battacharjee Vs. Rabi Nandan Saha, that such transfer is competent. The learned Magistrate should have followed this decision instead of the Single Bench decisions. We have Considered the matter in all its aspects. True, u/s 133 of the Code the Magistrate who draws up the proceeding can no doubt ask the opposite parties to show cause before some other Magistrate. But the terms of Section 133 of the Code cannot and should not be construed as to exclude the general provisions of transfer contained in Section 192 of the Code. We do not think that this is a matter which should be referred to a larger Bench for further consideration; rather we think that we should follow the Bench decision in Bardeshwari (Barodeshwari) Prosad Battacharjee Vs. Rabi Nandan Saha, . In that view of the matter the instant order should be set aside.

In the result, the Rule is made absolute. The order of the learned Magistrate is set aside and the learned Magistrate is directed to proceed with further hearing of the matter in accordance with law.

Let the records be sent down at once.

B. Banerji, J.

I agree.