Decided on January 17,1979



M.K.SHAH - (1.) A few facts necessary to appreciate the points which arise in this application may be set out in brief:- The petitioner at the relevant time was attached as a Lecturer in Mechanical Engineering Department of L. E. College of Movie of which college the opponent No. 1 was the Principal in charge of the college and opponent No. 2 was working as a Professor of Mathematics while opponent No. 3 was a storekeeper in the college and opponent No. 4 was a student therein. An incident happened on 15th October 1976 and as per the say of the petitioner opponent No. 4 followed by opponent Nos. 1 2 and 3 along with two police man entered his bungalow after having alighted from a jeep car which looked like a police jeep. After having entered his premises the opponents started giving threats to the petitioner stating that the paper of the student-opponent No. 4which had come for examination with the petitioner had been tampered with and the police had therefore come and his premises were to be searched. The petitioner became nervous on seeing the Police. Opponent Nos. 1 and 2 searched the whole house including the person of the petitioner and took out all the papers from his pockets. In one of his pockets in an envelope there were six currency notes of the denomination of Rs. 50/ each. They took away the same as also two of the books which were lying on his table and they also took away out of the bundle of the papers which had been sent for examining paper bearing seat No. 47 and one question paper. the paper was for the Saurashtra University October 1976 B. E. 6th Semester and was M. E. P. Machine Design paper bearing seat No. 47. They had raided the place and entered his premises without any warrant or authority and had entered the premises with the intention of committing the crime of theft of movies and the articles as contended by the petitioner. The petitioner therefore filed a complaint on the 17th October 1916 before the learned Magistrate against the opponents and the learned Magistrate issued process on 18-10-76 for the offences under secs. 451 380 r.w. sec. 114 of the Indian Penal Code. It appears that thereafter opponent No. 1 filed a complaint before the police against the petitioner alleging that the petitioner had accepted an illegal gratification of Rs. 300/from the opponent No. 4 student for showing favour in respect of his Machine Design Paper which was to be examined by the petitioner. The police after investigation submitted a charge-sheet against the petitioner for the offence punishable under sec. 161 of the Indian Penal Code and sec.5(2) of the Prevention of Corruption Act. The said case is now pending before the Special Judge Rajkot after having been numbered as Special Case No. 3/78 and is fixed for hearing on the 22nd of this month.
(2.) By an application Ex. 49 the petitioner had applied before the learned Magistrate to transfer the said Criminal case against the opponents being Case No. 759/76 to the Court of the learned Sessions Judge Rajkot on the ground that the cross case filed at the instance of the opponent No. 1 being Special Case No. 3/78 was pending before the learned Special Judge whose duty and functions were being discharged by the learned Sessions Judge Rajkot. 55 no orders were passed on Ex. 49 the petitioners advocate gave another application on 12-10-78 requesting the Court to pass an order on his application Ex. 49 and the learned Magistrate after hearing the learned Advocate for the petitioner observed that after receiving application Ex. 49 he had addressed a letter Ex.50 on 20th September 1978 to the learned Sessions Judge to which the learned Sessions Judge had replied by Ex. 51 to the effect that the Special Judge had no powers to try cases under secs. 380 and 451 of the Indian Penal Code and that therefore the learned Magistrate should pass appropriate order on Ex 49. By an order which was passed on 21-2-78 on Ex. 52 at the instance of the petitioner the learned Magistrate had stayed the proceedings before him till the cross case filed by opponent No. 1 is disposed of and he was therefore of the opinion that when the proceedings before him were stayed the question of transferring the same as prayed in Ex. 49 did not arise. He therefore passed an order accordingly.
(3.) Aggrieved by that order the petitioner filed Criminal Revision Application No. 699/78 which is now converted into and heard as a Criminal Misc. Application.;

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