TULSIDAS MUNDHRA Vs. STATE
LAWS(CAL)-1961-8-26
HIGH COURT OF CALCUTTA
Decided on August 24,1961

TULSIDAS MUNDHRA Appellant
VERSUS
STATE Respondents

JUDGEMENT

S.K.SEN, J. - (1.) THIS application Under Section 498, Cr.PC for bail by the petitioner Tulsidas Mundhra has been heard along -with the Reference by Shri M. Roy, Presidency Magistrats, Calcutta Under Section 432 (2) of the Cr.PC on a question of law, viz., whether the City Sessions Court has jurisdiction to entertain an application Under Section 528 (lc) of the Code in connection with a commitment proceeding pending before a Presidency Magistrate. The case against the petitioner Tulsidas Mundhra and another was started on a chargsheet submitted by the police Under Sections 467 and 468 of the Indian Penal Code. After examination of some witnesses, the learned Presidency Magistrate framed charges Under Sections 120B, 409, 471/458 and 477A/109 of the Indian Penal Code against the accused. At that Stage, an foliation for transfer of the case from the file of the Presidency Magistrate was filed before the Chief Presidency Magistrate. The learned Chief Presidency Magis - trate dismissed the application for transfer of the case, and the case went back to the learned Presidency Magistrate, on 10 -8 -1951. The learned Magistrate fixed 14 -8 - 1961 for further orders. On that date the learned Advocate for the petitoners informed the Court that a stay -order had been granted by the Chief Judge, City Sessions Court on an application Under Section 528 (lc) of the Cr, P. C. for transfer of the case out of the file of the Presidency Magistrate Shri M. Roy. Thereupon the learned Presidency Magistrate has made this reference as, in his opinion, the City Sessions Court has no jurisdiction to entertain an application Under Section 528 (lc) of the Cr.PC
(2.) SECTION 5 of the City Sessions Court Act. 1.953, provides that the City Sessions Court shall be deemed to be a Court of Se:sion established for the Sessions Division comprising the Presidency town of Calcutta, and that save as otherwise provided under the Act. all the provisions of the Code shall apply to the Chief Judgs and other Judges of the City Sessons Court, as if they were the Sessions Judge and Additional Sessions Judges. Section 6 of the Act provides that the City Sessions Court shall not have any jurisdiction in appeal, reference or revision, and that it srial not lave under to try any slummed offence Sub -Section 3 of Section 6 is as fallows . (3) Subject to the provisions of Sections 7 and 8, all matters in respect of which the City Sessions Court has no jurisdiction, shall be tried, dealt with or disposed of as if this Act had not been passed. The first question for consideration is whether jurisdiction to transfer a case from one magistrate to another within the same Sessions Division under the provisions of sec -to 528 (lc) of P.C. is an exercise of jurisdiction in appeal, reference or revision. If so, clearly, the City Sessions Court cannot have such jurisdiction. The learned Presidency Mag strata has observed that the Chief Presidency Magistrate rejected the application for transfer of the case, and that the application to the Chief Judge ot the City Sessions Court is practically an application in revision of the order of the Chief Presidency Magistrate. But Sections 526 and 528 of the Cr.PC do not occur in the Part of the Criminal Procedure Code dealing with appeals and revisions; they occur in a separate Part of the Criminal Procedure Code. In this connection, we may usefully recall some observations of the Privy Council in the case Jairam Das v. Emperor 72 Ind App 120 : A.I.R. 1945 PC 94, where in connection with an application for bail it was observed that Sections 498 to 502 of Chapter XXXIX of the Code of Criminal Procedure form a complete and exhaustive statement of the powers of the High Court to grant bail taken along with Section 426 of the Cr.PC which, however, applies only when appeal is entertained. It was observed that Sections 498 to 502 in connection with bail had nothing to do with the question of appeal and they apply primarily to the stage before the trial and conviction. Accordingly, powers Under Sections 498 to 502 would be considered to be independent powers and not powers in appeal and revision. Simi - larly, Sections 526 and 528 must be considered as independent powers of transfer which the Sessions Judges or the High Court exercise, and they are not powers of such Judge or Court in appeal, reference or revision. Accordingly, in a matter in which the City Sessions Court has jurisdiction, the City Sessions Court may also entertain an application for transfer Under Section 528 (lc) of the Cr.PC but in this connection Sub -section (3) of Section 6, which has already been quoted above, must be taken into consideration. All matters in which the City Sessions Court has no jurisdiction must be dealt with as if the City Sessions Court Act does not exist. Therefore, in a matter in which the City Sessions Court has no jurisdiction, Section 5 of the City Sessions Court Act is of no avail, and in such a case the City Sessions Court cannot exercise jurisdiction Under Section 528(lc) of the Code. Mr, A. K, Dutt has referred us to Rule 23 of the Rules framed under the City Sessions Court Act by the High Court, showing that the High Court contemplated Miscellaneous cases Under Sections 528, 498 and some other sections of the Code coming up before the City Sessions Court. Mr. Dutt has, therefore, urged that the City Sessions Court must be deemed to have jurisdiction Under Section 528 of the Cr.PC That is quite correct so far as it relates to cases in which the City Sessions Court ha? jurisdiction. Such cases comprise the greater part of the Sessions triable cases, but not cases involving offences mentioned in the schedule of the City Sessions Court Act. including inter alia offences Under Section 458 or 477A of the Indian Penal Code. In respect of the latter class of cases, the City Sessions Court has no jurisdiction; and it is, therefore, clear that in view of Sub -section (3) of Section 6, all applications in respect of such cases must be dealt with as if the City Sessions Court Act had not been passed i.e. all applications far transfer (as well as bail) in relation to such cases must be filed before and dealt with by the High Court and not the City Sessions Court, in cases when parties have been unable to obtain relief from the Chief Presidency Magistrate or the Presidency Magistrate concerned. of the City Sessions Court Act; and as the present case involv scheduled offences, the Chief Judge, City Sessions Court, acted without jurisdiction in entertaining the application Under Section 528 (lc) of the Code. Reference has been made to the decision of the Madras High Court Ahmed Moideen Khan v. Inspector of 'D' Division : AIR1959Mad251 , where it was observed that a court of Session established for the Presidency town will have all the powers of the Sessions Judge given und -r the Code including the power to transfer a case pending before the Chief Presidency Magistrate, and there could be no conflict as the Chief Presidency Magistrate's power to transfer Under Section 528 (2) of the Code would be controlled by the superior powers of transfer vested in the City Sessions Judge. In connection with the above observation it must be remember' d that in Madras, all Sessions cases are now triable by the City Sessions Court only and not by the High Court Sessions. There is no division of juriscficton in respect of sessions cases between High Court Sessions and the City Sessions Court as in Ca'cutta. So far as the Calcutta City Sessions Court is concerned, we must have the limits of Sub -section (3) f Section 6 of the City sessions Court Act in view. That sub -section excludes the power of the City Sessions Court to entertain an annlira'ion rnder Section 528 of the Code, or any other application whatever, in respect of cases in -volving scheduled offences.
(3.) IT should be mentioned that Mr. Dutt at one stage of his argument challenged the refer nee made by the Presidency Magistrate as incompetent, and referred in this connection to Girish Chandra Kundu v. Emperor : AIR1929Cal751 . I do not find that the aforesaid decision has any bearing on the question rai eri. Undr Sub -section (2) of Section 432 of the Code, the made by the Presidency Magistrate is clearly competent;


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