Zulikha vs Mir Wali and Others

A.B. Qadir Parray, J.—From the perusal of the records, it transpires that the parties were served and at one stage they had appeared, but

subsequently absented themselves.

This revision has been filed against the order of S. D. M./ Executive Magistrate, Ganderbal dated 2-4-1985,. whereunder said Sub-Divisional

Magistrate, Srinagar has transferred the case titled Mir Wali v. Zulikha, pending in the Court of Executive Magistrate, Ganderbal to his own files.

Petitioner has challenged this order on the count that the SDM Srinagar had no powers to order the transfer of the file from the Court of Executive

Magistrate, 1st. Class Ganderbal, more so when the person of SDM/ Executive Magistrate, 1st. Class Srinagar seems to have interest in the

matter he should have not passed such an order.

I have perused the record. I do find that the order of transfer of proceedings u/s 145 Cr.P.C. pending in the Court of Executive Magistrate, 1st

Class Ganderbal passed by SDM/Executive Magistrate, Ist. Class, Srinagar is illegal and without jurisdiction. I say so because SDM Srinagar has

no powers under the Statute or even the Government has not conferred him with the powers to exercise such powers of transfer of a case pending

disposal in the Court of other Executive Magistrate.

The provisions of Criminal Procedure Code do lay down u/s 6(a) classes of Magistrates wherein under Head-II, Executive Magistrates have

been classified as:

i) District Magistrate;

ii) Additional District Magistrate;

iii) Sub-Divisional Magistrate;

iv) Executive Magistrate, Ist. Class;

v) Executive Magistrate 2nd Class;

vi) Special Executive Magistrates.

Under the relevant provisions of law, the powers which are conferred under the Statute to the Executive Magistrates are enumerated in

Schedule III clause (V) Criminal P. C. which do show that the Executive Magistrate of the Ist. Class has not the powers of transfer of a case and

these powers merge under clause (VI) while taking ordinary powers of Sub-Divisional Magistrate that he will exercise powers which an Executive

Magistrate of the Ist. class is empowered under clause (V). In addition to that he has the powers which are enumerated under this schedule clause

(VI) and this clause does not show that the Sub-Divisional Magistrate, has any powers of such transfer. On the other hand, it is the District

Magistrate who is having powers of such transfer conferred by the State and not by the Statute and these powers have been conferred to District

Magistrate by the Government under Schedule IV Part II Sub-sections (3) and (3-A) of Section 528 Cr.P.C. which reads:

Power to withdraw cases and to try or refer them for trial, Sub-sections (3) and (3-A) of Section 528.

So it boils down, that neither the Statute nor the Government has empowered the person of Sub-Divisional Magistrate to withdraw cases from

the Courts of Executive Magistrate, 1st. Class and in case he exercises such powers, he is having no jurisdiction to do so. So the order impugned

being without jurisdiction is accordingly quashed. Records are sent back to the Court of Executive Magistrate Ist. Class, Ganderbal to proceed in

the matter in accordance with law in case he feels that still there is existance of breach of peace on spot regarding subject matter of dispute.