Nemichand vs Civil Judge, II-Class, Mandleshwar

Samvatsar, J.—This reference is made by the Sessions Judge, Mandleshwar, u/s 438 Cr. P.C.

Facts giving rise to this reference, briefly stated, are as follows:The Petitioner Nemichand filed a civil suit, being case No. 338 of 1955, against one Moolchand In the Court of the Civil Judge, Second Class, Mandleshwar for recovering certain money. During the trial, the learned Civil Judge found that the Petitioner had not complied with the requirements of Section 9 of the Madhya Bharat Money Lenders Act of 1950. Upon this finding, he took cognizance of the offence and tried and convicted the Petitioner u/s 18 of the aforesaid Act and sentenced him to pay fine of Rs. 5. Aggrieved by his conviction and sentence, the Petitioner preferred a revision-application to the Sessions Judge, Mandleshwar, The learned Judge being of the opinion that the conviction was illegal has referred the matter to this Court for passing suitable order.

The learned Civil Judge, who tried the suit filed by the Petitioner was also invested with powers of First Class Magistrate and it was in exercise of these powers, that he took cognizance of the offence, alleged to have been committed by the Petitioner. Section 190 Clause (c) empowers a Magistrate to take cognizance of any offence upon his own knowledge or suspicion, that such offence has been committed. The learned Magistrate was therefore, justified in taking cognizance of the offence. Section 191 however, makes it obligatory on the Magistrate taking cognizance of an offence under Sub-Section 1 of Clause (c) of Section 190 to inform the accused, before any evidence is taken, that he is entitled to have the case tried by another Court and if the accused or any of the accused, if there are many than one, objects to being tried by such Magistrate, the case shall instead of being tried by such Magistrate be committed to the Court of Sessions or transferred to an other Magistrate.

In the present case, not only the Magistrate failed to ask the accused, if he desired the case to be transferred to another Magistrate but actually insisted on trying it himself, even though the accused submitted an application for transfer. The trial of the case by the learned Magistrate and conviction must therefore, be held to be illegal.

I accept the reference, set aside the conviction of the accused. As suggested by the learned Sessions Judge, the case is transferred to the file of Additional District Magistrate, Khargone who will proceed to try the case and dispose it of according to law. Fins, if paid by the accused, shall be refunded.