SURAJMAL Vs. HARLAL
LAWS(RAJ)-1952-6-14
HIGH COURT OF RAJASTHAN
Decided on June 06,1952

SURAJMAL Appellant
VERSUS
HARLAL Respondents


Referred Judgements :-

HAMERA VS. ONKAR [REFERRED TO]


JUDGEMENT

- (1.)THIS is an application in revision by Surajmal complainant in a case under sec. 506 I. P. C. The case was pending in the Court of Sub-Divisional Magistrate, Khetri, but on an application by the accused under section 528 Cr. P. C. it was transferred by the District Magistrate, Jhunjhunu, from the said Court to that of the Extra Magistrate, Chirawa at Jhunjhunu. The complainant Surajmal filed this application in revision, and the ground taken is that under section 528 Cr. P. C. a District Magistrate has no power to transfer any case from one of the courts subordinate to him to another, but that he has the power of withdrawing or recalling only that case which has been made over by him to any Magistrate subordinate to him. It was argued that the learned District Magistrate should have made an order of withdrawal or recall only, if he had himself taken cognizance of the case.
(2.)ON behalf of the opposite party, it has been argued that a District Magistrate has got the power of withdrawal of any case whatsoever from the Court of a Magistrate subordinate to him, and it is only in the case of recall that he can exercise the power of recalling of a case which has been made over by him to any Magistrate subordinate to him. It was further argued that apart from the provisions of section 528 (2) which give to the District Magistrate the power of withdrawing any case from the court of a Magistrate subordinate to him, the District Magistrate has power under sec. 192 Cr. P. C. to empower the sub-Divisional Magistrate who had taken cognizance of the case to transfer it to the Extra Magistrate, Chirawa, who was a Magistrate in the same District.
I have considered the arguments of the learned counsel for both the parties. The learned counsel for the applicant has not been able to support his contention by any authority. The wordings of sec. 528 (2) are, however, so clear that to my mind no authority is needed to support the view that the District Magistrate's power of withdrawal of a case from the court of one subordinate Magistrate and referring it for enquiry or trial to another Magistrate subordinate to him is not limited only to those cases which have been made over by him to a Magistrate subordinate to him. If, what the learned counsel for the applicant contends is correct then the phraseology of sec. 528 (2) ought to have been as follows: - "any Chief Presidency Magistrate ___may withdraw or recall any case which he has made over to any Magistrate subordinate to him from such Magistrate. "

The phraseology of sec. 528 (2) is, however, not as given above, but the words used are "may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him. . . . . " Thus omitting the words "or recall any case which he has made over to" which occur between the two commas, the language of sec. 528 (2) is like this: - "any Chief Presidency Magistrate etc. may withdraw any case from any Magistrate subordinate to him. . . . . . ". The words "which he has made over to" thus go with the words "recall any case" only, and not with the words "withdraw any case". Of course in the case of recall, the Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate may recall only that case which he has made over to any Magistrate subordinate to him, but in the case of withdrawal the District Magistrate has the power to withdraw any case whether it has been made over by him to a subordinate Magistrate or has not been made over by him to such Magistrate. This becomes clear from a ruling of the Rajasthan High Court reported at Nathuram vs. The State (1) (1951 R. L. W. 230. ). In that case it was decided that an applicant for transfer under sec. 526 Cr. P. C. ought first to go to a District Magistrate for transfer under sec. 528 Cr. P. C. It is implied in the said judgment which was pronounced by a Division Bench of this Court at Jodhpur that a District Magistrate has got power under sec. 526 Cr. P. C. to withdraw any criminal case, whatsoever, from the court of one Magistrate subordinate to him and refer it for enquiry or trial to another Magistrate also subordinate to him. I am, therefore, of opinion that the learned District Magistrate of Jhunjhunu was perfectly within his powers in withdrawing the present case from the court of Sub-Divisional Magistrate, Khetri, and referring it for trial to the Extra Magistrate, Chirawa, at Jhunjhunu. The learned District Magistrate could also empower the Sub-Divisional Magistrate, Khetri, who is a Magistrate of the First Class and who has taken cognizance of the present case to transfer it for enquiry or trial to any other specified Magistrate in his district competent under the Code to try the case. The order of the District Magistrate shows that he has authorised the Sub-Divisional Magistrate, Khetri, to transfer the present case to the Extra Magistrate Chirawa at Jhunjhunu. The learned Magistrate apart from the powers under sec. 528 (2) Cr. P. C. was, therefore, authorised under sec. 192 (2) to make the order which he has made.

I do not find any substance in the revision, and it is dismissed. .



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