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Judgment
A. Ramamurthi, J.—Tiruchendur Bar Association represented by its Secretary, filed these two revision petitions under Sections 397 and
401 of the Code of Criminal Procedure aggrieved against the orders passed by the learned Additional District Judge-cum-Chief Judicial
Magistrate, Tuticorin in Crl. M. P. No. 181/99 and Crl. M. P. 182/99 dated 23-2-99.
The case in brief for disposal of both the revisions is as follows:
Petitioner Association filed a complaint in Crl. M. P. 439/99 before the learned Judicial Magistrate, Tiruchendur, against the respondents for the
offence punishable under Sections 500 and 501, IPC. They also filed a complaint in Crl. M. P. 525/99 before the same Magistrate against the
Sub-Inspector of Police for the offences punishable under Sections 167 and 318, IPC. The learned Magistrate submitted the complaints and
connected records to the learned Chief Judicial Magistrate u/s 322(2) of Code of Criminal Procedure read with Sections 200(b) and 192(1), Cr.
P. C. on the ground that the complainant and the respondent Police are well known to him for the past several years and he has to maintain cordial
relationship with both parties and hence, he was of the view that the matter is to be enquired by some other Judicial Magistrate. Against the order
of the said Magistrate, the petitioner filed Crl. M. Ps. 181 and 182 of 1999 before the learned Chief Judicial Magistrate, Tuticorin and as the same
was dismissed on 23-2-99, the present revision petitions are filed.
Learned counsel for the petitioner contended that the orders passed by the Courts below are not correct. u/s 322, Cr. P. C. the learned
Magistrate can submit a report if he has no jurisdiction to try the case. The reasoning given by the learned Magistrate is not a valid ground for
transfer. The learned Magistrate is not personally interested in the subject-matter of the case and the petitioner never raised any question of bias.
The ground that maintaining cordial relationship cannot be a ground for refusing to try the case. A Judicial Magistrate is bound to maintain the
independence of judiciary at all cost rather than maintaining the cordial relationship with the parties. They cannot be given any special status
because of their occupation. The ends of justice and fair play require that the impugned orders are to be set aside and the learned Judicial
Magistrate, Tiruchendur is to be directed to proceed with the complaint in accordance with law.
Heard the learned counsel for the petitioner. The petitioner in both the petitions is only Tiruchendur Bar Association represented by the
Secretary. There are two respondents in Crl. R. C. 240/99 and the 2nd respondent is the Sub-Inspector of Police. The same Sub-Inspector of
Police is the sole respondent in Crl. R. C. 241/99. Since the matter of controversy involved in both the petitions is one and the same, a common
order is pronounced. The parties will be hereinafter referred to as they are described in Crl. R. C. 240/99 to avoid confusion.
Tiruchendur Bar Association represented by its Secretary filed a complaint in Crl. M. P. 439/99 before the learned Judicial Magistrate,
Tiruchendur against the respondents for the offences punishable under Sections 500 and 501, I.P.C. They also preferred another complaint in Crl.
M. P. 525/99 before the same Court for the offences punishable under Sections 167 and 218, IPC. The learned Magistrate instead of taking
action in accordance with law, submitted the complaints and the connected records to the learned Chief Judicial Magistrate, taking shelter u/s 322,
Cr. P. C. on the ground that the complainant and the 2nd respondent are well known to him for the past several years and to maintain cordial
relationship with other parties, the matter has to be enquired by some other Judicial Magistrate. The petitioner moved the learned Chief Judicial
Magistrate also and the learned Judge also agreed with the opinion of the learned Judicial Magistrate and dismissed the petitions filed by the
petitioner and, therefore, they were driven to the necessity of filing these revision petitions.
The revision petitioner is only the Secretary of the Bank. The 2nd respondent is only the Sub-Inspector of Police, Tiruchendur. Simply because
the complainant is the Secretary of the Bar and one of the accused is the Sub-Inspector of Police, the learned Magistrate was not inclined to
proceed further with the complaints and he had sent all the records to the learned Chief Judicial Magistrate u/s 322, Cr. P. C. Prima facie it is clear
that only if the learned Magistrate has no jurisdiction to try the case, he can invoke Section 322, Cr. P. C. Learned counsel for the petitioner
further stated that the parties are only litigants before him and the Court is expected to independently function irrespective of parties. The litigant
parties can-not claim any special status by their occupation. The learned Magistrate ought to have proceeded the case in accordance with law and
given a finding. The learned Judicial Magistrate is bound to maintain the independence of the judiciary at all cost rather than maintaining the cordial
relationship with litigants. The learned counsel further pointed out that the grounds now stated by the learned Magistrate as well as the learned
Chief Judicial Magistrate are not sound and proper.
Section 322, Cr. P. C. relates to procedure in cases which Magistrate cannot dispose of.
(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a
presumption
(a) that he has no jurisdiction to try the case or commit it for trial, or
(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or
(c) that the case should be tried by the Chief Judicial Magistrate....
It is not the case of the parties that the learned Magistrate has no jurisdiction to try the case. Immediately after filing the complaints, the
Magistrate has invoked Section 322, Cr. P. C. and sent the records to the learned Chief Judicial Magistrate to transfer the same to some other
Court. The language employed u/s 322, Cr. P. C. is evidently clear that only after recording the evidence it appears to him, then he can invoke any
of the sub-sections u/s 322, Cr. P. C. In the present case, it is unfortunate that the learned Magistrate was not prepared to act as an independent
Judicial Officer and dispose the case in accordance with law. Maintaining cordial relationship is not a ground for transfer the case and the two
parties are only litigants before him. It is only the duty of the Judicial Officer, to independently function as a Judicial Officer within the para metres
and also in accordance with law. He has no role to play as a Panchayatdar or a mediator between the litigant parties or to get a good name from
any of these parties. The Judicial Officer should act independently irrespective of the persons involved in the case and now the settled position of
law is that no one is above the law. It is unfortunate that the view of the trial Court has been upheld by the learned Chief Judicial Magistrate also
without any proper application of mind. The learned Chief Judicial Magistrate ought to have given suitable directions to the learned Magistrate to
dispose the case in accordance with law. This only indicates that he is also not acting independently and he had simply accepted the report of the
trial Magistrate without proper application of mind.
The learned counsel for the petitioner also relied upon a decision is Shankar Malharrao Deshmukh v. State of Maharashtra 1997 Cri LJ 4616,
wherein it is observed that in order to bring the case under the ambit of Section 322, Cr. P. C, there must be shown to exist following conditions,
i.e. (i) lack of jurisdiction, (ii) defective jurisdiction legal or territorial, and (iii) inability to inflict adequate punishment for any other sound reasons, to
which the Chief Judicial Magistrate is empowered.
It is therefore, clear that the report of the learned Judicial Magistrate invoking Section 322, Cr. P. C. is not proper and correct. Similarly the
finding of the learned Chief Judicial Magistrate also is liable to be set aside. The learned Magistrate has to be directed to decide the case in
accordance with law independently without any fear or favour, forgetting the position of the parties. The orders of the Courts below are not based
on sound reasons, but on the other hand, it would give a wrong signal to the Judicial Officers. They should not give room that they are not
independent to function, but they should do the duty which they are called upon to do as Judicial Officers, instead of harping on cordial relation
ship between the parties.
For the reasons stated above, both the revision petitions are allowed and the orders passed by the Courts below are set aside. The learned
Judicial Magistrate, Tiruchendur is directed to decide both cases in accordance with law, as expeditiously as possible. Consequently, Crl. M. Ps.
2028 and 2029 of 1999 are closed.