Amitabha Dutta, J. - (1.) This Revisional application is directed against an order passed on 20-11-81 by the learned Chief Judicial Magistrate, 21 Parganas at Alipore in Criminal Misc. Case No. 46 of 1981 under Section 41 (sic 410) of the Code of Criminal Procedure.
(2.) The matter has arisen in the following circumstances:- On 6-7-78 the petitioner Maslim wife filed an application under Section 125 of the Code before the learned Sub-Divisional Judicial Magistrate, Alipore being M. Case No. 161 of 1978 claiming maintenance allowance from the opposite party No. 1-her husband for herself and her minor daughter on the ground that the opposite party N). I neglected to maintain her and her child. On 20-12-78 the opposite party No. 1 appeared in the aforesaid case and prayed for time for showing case. On the same date the learned Sub-Divisional Judicial Magistrate passed an order transferring the aforesaid case to the learned judicial Magistrate, 10th Court, at Alipore for disposal. Thereafter on 13-2-79 the opposite party Na. I filed a 'show-cause' petition and subsequently the proceeding continued before the learned Judicial Magistrate, 10th Court, Alipore in course of which the petitioner examined six witnesses of whom five witnesses were cross-examined on behalf of the opposite party No. 1. Ultimately on 12-3-81 the opposite party No. 1 applied before the learned judicial Magistrate, 10th Court, Alipore for transfer of the case to the Court of the learned Chief' Judicial Magistrate on the ground that the transfer order dated 20-12-78 passed by the learned Sub-Divisional judicial Magistrate, was illegal. The learned Judicial Magistrate, 10th Court, Alipore rejected the said application of the opposite party No. I on 30-5-81. Thereafter the opposite party No. 1 filed an application under Section 410 of the Code before the learned Chief Judicial Magistrate praying for withdrawal of the case from the Court of the learned judicial Magistrate, 10th Court to the Court of the Judicial Magistrate on the ground that the learned Sub-Divisional .Judicial Magistrate was not competent to transfer the case to the learned judicial it Magistrate, 10th Court, Alipore. The learned Chief Judicial Magistrate in his impugned order in effect declined to interfere but made certain observations to the effect that the transfer by the learned S.D.J.M. may be at best an irregularity but such irregularity unaccompanied by miscarriage of justice may not vitiate the entire trial although no final comment as to the nature of the transfer can be made.
(3.) He has further expressed the view that it would have been better on the part of the present petitioner-wife to move the Hon'ble Court to get the final order in her favour regularising the irregularity and directing the learned judicial Magistrate, 10th Court, Alipore who is otherwise competent to dispose of the case to its conclusions particularly in view of the fact that considerable time has passed and the petitioner has almost completed her evidence in the proceeding for maintenance. In view of such uncertain finding regarding the nature of the transfer order and its effect made by the learned Chief Judicial Magistrate and the opinion expressed by him that it would have been better on the part of the petitioner to move this court to regularise the transfer, the present petitioner has come up before this court with this application which has been heard as a 'contested application' after notice to the opposite party No. 1 who has not appeared in spite of the service of notice.;