- (1.) P. N. Bakshi, J. An application under Section 125, Cr. P. C. was filed on behalf of Km. Ayasha Roohi and Km. Shama Roohi, the two minor daughters of one Naim Ahmad, in the court of VI Addl. Munsif Magistrate Saharanpur. An objection was raised on behalf of Naim Ahmad that the said court was not competent to entertain the application. It appears that on the date fixed the Munsif Magistrate passed an order to the effect that he had no jurisdiction to entertain the application. He also directed that a letter be sent to the Chief Judicial Magistrate, for necessary orders. On June 14, 1982, a letter was sent to the Chief Judicial Magistrate, Saharanpur requesting him to pass suitable orders for transferring the case to the court of competent jurisdiction. On June 15, 1982 the Chief Judicial Magistrate directed the Vlth Addl. Munsif Magistrate to proceed in accordance with law. It appears that on June 23, 1982 the Munsif Magistrate VI again wrote to the Chief Judicial Magistrate requesting him to transfer the case to some other court or to withdraw it from his court. Thereafter on June 25, 1982 the Chief Judicial Magistrate passed an order transferring the case to the court of V Addl. Munsif Magistrate. Before V Addl. Munsif Magistrate it was objected that the Chief Judicial Magistrate had no power to transfer the case from the court of VI Addl. Munsif Magistrate to the court of V Addl. Munsif Magistrate, because the application itself had been filed in a court which did not possess jurisdiction. That objection has been rejected. Hence this application under Section 482 Cr. P. C,
(2.) I have heard learned counsel for the applicant and have also perused the impugned orders which have been filed along with this petition. Counsel for the applicant has submitted that the powers of transfer can only be exercised by a superior court when the case is pending before a subordinate court having jurisdiction to entertain it. If the subordinate court had no jurisdiction then the superior court cannot transfer such a case. The proper procedure would be for the subordinate court to return the complaint to the party concerned for presentation in the proper court. In support of his submission, learned counsel 5ias cited the following cases: In re Chellappa Chettiar, A. T R. 1942 Mad. 715, State v. Pokker, A. I. R. 1959 Kerala 53 and' Raja Soap Factory v. S. P. Shantharaj 1965 S. C. 1449. In the Madras case, it was held by the Single Judge of that court that neither the District Magistrate nor the High Court ought to transfer a case from the court of the Magistrate where such Magistrate has no jurisdiction to try the offence. The proper procedure for the Magistrate was to return the complaint by informing the complainant that he may present it in the court having jurisdiction. In the Kerala case it was held by that court that Section 346 (1), Cr. P. C. (old) has reference to cases of absence of territorial jurisdiction. In such cases what the Magistrate concerned should do is to act under Section 201, Cr. P. C. . . . . . . . . Such a case cannot be transferred under Section 526 (1) Cr. P. C. for the High Court is competent to transfer a case under the Cr. P. C. only from a court having jurisdiction to receive and try it.
(3.) THE Supreme Court case dealt with the situation where the High Court of Mysore had assumed jurisdiction by entertaining a plaint and also an application for interim injunction which could only be properly instituted in the District Court. THE High Court had also issued a temporary injunction against the opp. party in that case. In this back ground of facts it was observed by the Supreme Court that Section 151 preserves the inherent powers of the court as may be necessary for the ends of justice or to prevent the abuse of the process of court. That power may be exercised where there is a proceeding lawfully before the High Court. It does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law. THE Supreme Court case to my mind has no application in the present set of circumstances and no inference can be deduced there from in support of the applicant's submission. So far as the Madras and Kerala cases are concerned, none of them have considered the effect of the inherent powers of the High Court, which were possessed under Section 561 (a) of the old Code and Section 482 of the new Code. Section 482 Cr. P. C. (New) runs as follows:- " Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. ";