S. K. Dhaon,J. - (1.) THE applicants had been summoned as accused in a complaint case. THEreafter, non-bailable warrants were issued against them to compel their attendance in Court. By means of this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) they have challenged the legality of both the proceedings.
(2.) THE Ist Additional Munsif Magistrate took cognizance of the offence contained in the complaint filed by the opposite party no. 1 against the applicants. A Criminal Case No. 779 of 1983 was registered by the Magistrate. He examined the complainant and thereafter some of the complainant's witnesses were examined under section 202 of the Code. On 3-11-1983 the Criminal Case No. 779 of 1983 was transferred from the file of the Ist Additional Munsif Magistrate to the file of Vllth Additional Munsif Magistrate. THE case was renumbered as Criminal Case No. 423 of 1983. This Magistrate examined the remaining witnesses of the complainant and on 5-4-1984 summoned the applicants. For that purpose processes were issued as against the applicants. THE learned Sessions Judge on 16-7-1984 transferred the Criminal Case No. 425 of 1983 to the Court of VIth Additional Munsif Magistrate and here the Criminal Case was further renumbered as Criminal Case No. 381 of 1984 THE VIth Additional Mansif Magistrate felt that the applicants were avoiding their attendance in Court and, therefore, on 1-8-1984 he passed an order issuing non-bailable warrants against the applicants and fixed 1-9-1984 for their appearance. Before this Court, learned counsel for the applicants advanced two contentions. The first contention is that the Vllth Additional Munsif Magistrate had no jurisdiction to summon the applicants. This submission is founded on the provisions of Section 204 of the Code. Emphasis is laid on the words "Magistrate taking cognizance of an offence" used in that provision. Under section 202 of the Code apart from the Magistrate; receiving a complaint of an offence and authorised to take cognizance the Magistrate to whom a complaint has been made over under section 192 of the Code is competent to issue processes against the accused. The fate of this submission, therefore, depends upon the crucial question of fact as to whether the complaint giving rise to Criminal Cnse No. 779 of 1983 was made over to the Vllth Additional Munsif Magistrate under section 192 of the Code. In Paragraph 4 of the application it is averred that on 3-11-1983 Criminal Case No. 779 of 1983 was transferred to the Court of VII Additional Munsif Magistrate Ballia and the same was registered as Criminal Case No. 425 of 1983 in (hat Court. The averments, it will be seen, are absolutely silent as to which authority transferred the case from the file of Ist Additional Munsif Magistrate and under which provision of the Code. However, the applicants have filed as Annexure No. Ill the order- sheet of the Criminal Case No. 779 of 1983, Criminal Case No. 245 of 1983 and Criminal Case No. 381 of 1984. This order sheet shows that on 18-7-1983 the complaint was instituted in the Court of Ist Additional Munsif Magistrate and that Magistrate on that very date directed that the complaint should be registered, the complainant should be examined under section 200 of the Code and 3-10-1983 be fixed for examining all the witnesses of the complainant under section 202 of the Code. The order sheet dated 18-7-1984, therefore, completely rules out the possibility of the Chief Judicial Magistrate taking cognizance of the offence mentioned in the complaint. It necessarily follows that the provisions of sub-section (1) of Section 192 of the Code at no stage came into picture at all. We have, therefore, to confine ourselves necessarily to the provisions of sub-section (2) of section 192 of the Code. A perusal of the order-sheet dated 3-11-1983 demonstrate; that on that date the 1st Additional Munsif Magistrate transferred Criminal Case No. 779 of 1983 to the file of the Vllth Additional Munsif Magistrate under section 192(2) Although there is no reference to any provision of law under which he purported to exercise this power of transfer, it is obvious that the Ist Additional Munsif Magistrate purported to act under sub-section (2) of Section 192 of the Code. Since the complaint was presented directly before the 1st Additional Munsif Magistrate and he took cognizance of the offence contained therein and since in the instant application the jurisdiction of the 1st Additional Munsif Magistrate has not been challenged, it is obvious that the Ist Additional Munsif Magistrate had been duly empowered by the Chief Judicial Magistrate to make over the case for enquiry or trial to Vllth Additional Munsif Magistrate. To put it differently, to the Vllth Additional Munsif Magistrate the complaint was made over under section 192 of the Code. Therefore, the Vllth Additional Munsif Magistrate had the requisite jurisdiction to direct the issue of processes against the applicants under section 202 of the Code. In Rajendra Nath Mahto v. T. Gangooli, Deputy Superintendent of Police, AIR 1972 SC 470 the facts were as follows :- One Sri S. K. Gangooli, a Magistrate, took cognizance of an offence and fixed a date for holding a judicial enquiry. The Magistrate came to the conclusion that a prima facie case had been made out against the three accused in that case and submitted a report to the Sub Divisional Magistrate, one Sri Sarkar. Sri Sarkar on receipt of the report of the Judicial enquiry passed an order directing the issue of processes against all the three accused. The High Court quashed the order passed by Sri Gangooli issuing processes to the three accused. The Supreme Court maintained that order. The Supreme Court held that Sri Sarkar could not have issued processes under section 204 of the Code as he has not taken cognizance and it was Sri Gangooli who alone had taken cognizance. The Supreme Court further held that the power exercised by Sri Sarkar was not referable even to the provisions of Section 202 of the Code as there existed no order of transfer of the case by Sri Gangooli to Sri Sarkar. The Court in para 7 referred to the provisions of Sections 191 and 192 of the Code as they then stood (the matter was governed by the provisions of the Code of Criminal Procedure 1898). Thereafter, in paragraphs 8 and 9 the Court observed : " 8. In these cases where either the Magistrate has taken cognizance and is in seisin of the case or where a case is transferred by a Magistrate who has taken cognizance to another Magistrate subordinate to him the complainant is required to be examined under section 200 of the Code of Criminal Prcoedure. There are certain exceptions with which we are not concerned in the present appeal. The relevant section which confers power on the Magistrate to whom the case has been transferred to issue process is section 202 of the Code of Criminal Procedure. The language of Section 202 of the Code of Criminal Procedure is that the Magistrate may, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against. Therefore, the power of the Magistrate to issue process under section 202 of the Code of Criminal Procedure is not limited by the terms of Section 204 of the Code of Criminal Procedure to issue process. 9. Therefore, the two courses are, first, under section 204 of the Code of Criminal Procedure for the Magistrate taking cognisance to issue process or secondly under section 202 of the Code of Criminal Procedure for a Magistrate to whom a case has been transferred to issue process. " From a reading of the said decision it is clear that the Supreme Court ruled that the process could be issued by a Magistrate either under section 202 or Section 204 of the Code. Under section 204 of the Code the process could be issued only by a Magistrate taking cognizance of an offence. Under section 202 of the Code process could also be issued by a Magistrate to whom a complaint could be transferred under section 192 of the Code. In the instant case it is clear that the complaint was transferred under section 192 of the Code to the VII Additional Munsif Magistrate. This case, therefore, does not advance the case of the applicants.
(3.) LEARNED counsel for the applicants also relied upon a decision in Qamarali Syed Ali v. Mt. Tulsi, AIR 1938 Nagpur 433. In this case, a case was transferred by the Additional District Magistrate to the file of a Magistrate. The Additional District Magistrate has not taken cognizance of the offence. He passed the order of transfer under the then existing provisions of Section 528 of the Code. The question arose as to whether a Magistrate, to whom a case has been transferred under section 528 of the Code, had any jurisdiction to issue process under section 202 of the Code. The Court held that in such a situation the Magistrate has no such jurisdiction. The case is, therefore, not apposite to the case at hand. The second contention of the learned counsel for the applicants is that the Vlth Additional Munsif Magistrate had no jurisdiction to pass the order dated 1-8-1984 issuing non-bailable warrants against the applicants as the order dated 16-7-1984 passed by the Sessions Judge transferring the Criminal Case No. 425 of 1983 to that Court was without jurisdiction. The submission is that the Chief Judicial Magistrate alone could pass such an order. The sheet-anchor of this contention appears to be section 192 of the Code. This provision is not applicable at all. In sub-section (1) of Section 192 of the Code a Chief Judicial Magistrate has been empowered to make over the case for inquiry or trial to any competent Magistrate subordinate to him after taking cognizance of the offence. In this case, it has been shown that the Chief Judicial Magistrate did not take cognizance of the offence.;