NAZIR KHAN Vs. MUNIF KHAN
LAWS(PAT)-1960-9-15
HIGH COURT OF PATNA
Decided on September 08,1960

NAZIR KHAN Appellant
VERSUS
MUNIF KHAN Respondents


Referred Judgements :-

JAG-DISH YADAV V. STATE OF BIHAR [REFERRED TO]
DALU GOUR VS. MOHESWAR MAHATO [REFERRED TO]
JHAKAR ABIR VS. PROVINCE OF BIHAR [REFERRED TO]


JUDGEMENT

Kanhaiya Singh, J. - (1.)THIS is an application under Article 226 of the Constitution to call up and quash the order of the Sub-divisional Officer dated 16th May, 1960, transferring the case from the Court of the Munsif Magistrate to a Bench of the Gram Cutcherry.
(2.)SHORTLY put, the facts are these: On 24th September, 1959, the petitioner, Nazir Khan, filed a complaint petition before the Sub-divisional Officer, Samastipur, for prosecution of the opposite party for the offences under Sections 323, 379 and 225 of the Penal Code on the allegations that on 23rd September, 1959, Munif Khan and Mohit Khan, opposite parties, were cutting stealthily sugarcane crop standing on his land, and, on seeing that, the petitioner caught hold of Munif Khan, the other accused Mohit Khan, having managed to escape, that when he was taking Munif under arrest, Munif raised alarm, whereupon the other accused (Mohit) came back and asked the petitioner to release Munif from his custody, which he declined to do, and that thereupon Mobit belaboured the petitioner with lathi and Munif also assaulted him with lathi and he fell down on the ground and the two accused fled away, carrying with them the cut sugarcane. The petitioner was examined on solemn affirmation by the Sub-divisional Officer on 24th September, 1959. It is manifest that there are three direct allegations in the petition of complaint; (1) the accused opposite party assaulted the petitioner with lathis which is an offence under Section 323; (2) Munif was in lawful custody of the petitioner and was lawfully detained for the commission of the offence of theft and the other accused, Mohit, rescued him from his custody, this clearly being an offence cognizable under Section 225 of the Penal Code and (3) both the accused later committed the offence of removing the sugarcane belonging to the petitioner, and this constituted the offence under Section 379. Thus, the allegations disclosed three distinct offences under Sections 323, 379 and 225 of the Penal Code. The learned Sub-divisional Officer, however, took cognizance of only two offences under Sections 323 and 379 and transferred the case to Mr. M. P. Tandan for disposal. Subsequently, the case was transferred to the Court of Mr. J. Nath, Munsif Magistrate. The Munsif Magistrate framed charges against the accused under Sections 323, 379 and 225. In other words, he framed charge even for the offence under Section 225, though no cognizance of this offence had been taken by the Sub-divisional Officer. The case afterwards was again transferred to the file of Mr. T. R, Bajaj, another Munsif Magistrate. The trial commenced in his Court and was concluded and arguments were heard and a date was set down for judgment. In the meantime, after the conclusion of the argument, the accused filed written statement, wherein they took the plea that their trial by the Munsif Magistrate was incompetent and illegal for want of jurisdiction, inasmuch as, there was a Gram Cutcherry in the village, and the offences under Sections 323 and 379 were cognizable and triable by a bench of the-Gram Cutcherry. It is well to remember that the offence under Section 225 is not triable by a bench of the Gram Cutcherry. The objection to the jurisdiction of the Magistrate by the accused was obviously based on the assumption that the Munsif Magistrate has no jurisdiction to frame a charge against them under Section 225, since the Sub-divisional Officer had not thought dt proper to take cognizance of the offence. The learned Munsif Magistrate gave effect to this objection of the accused. Relying upon a decision of this Court in Jag-dish Yadav v. State of Bihar, 1960 Pat LR 61, he held that he had no jurisdiction to try the case and that the case should have been transferred to the Giaov Cutcherry under Section 69 of the Bihar Panehayat Raj Act, Accordingly, by his order dated 25-4-1960, he sent the record of the case back to the Sub-divisional Officer for necessary orders. The learned Sub-divisional Officer concurred with the opinion of the Munsif Magistrate, and by his order dated 16-5-1960 he transferred the case to the Gram Cutcherry concerned for disposal. It is this order of the Sub-divisional Officer which is sought to be annulled.
Learned counsel for the petitioner contended that both the Munsif Magistrate and the Sub-divisional Officer misdirected themselves and wrongly thought that they had no jurisdiction to try and punish the accused persons. His contention is that the petition of complaint disclosed, in addition to the offences under Sections 323 and 379, the offence under Section 225, and that the offence under Section 225 is not triable by a bench of the Gram Cutcherry, though cognizance of the offence under Section 225 was not taken by the Sub-divisional Officer. The Munsif Magistrate to whom the case was transferred for trial was competent to charge the accused for the commission of the offence under Section 225 also. There was no initial lack of jurisdiction, and when the Munsif Magistrate framed charges under Sections 323, 379 arid 225, it was he who had jurisdiction and competency to dispose of the case and not a bench of the Gram Cutcherry which had no jurisdiction to try the offence under Section 225. On the other hand, learned counsel for the opposite party contended that when the Sub-divisional Officer took cognizance of the offence under Sections 323 and 379, he was bound under Section 69 to transfer the case at once to a bench of the Gram Cutcherry having jurisdiction over the matter. In support of his contention he relied upon decision of this Court is 1960 BLJR 200 : 1960 Pat LR 61. This case has no relevancy at all, In this case, the petition of complaint disclosed three offences, one under Section 323, the second under Section 451 and the third under Section 452 of the Penal Code. The last two offences not being triable under Section 62 of the Bihar Panehayat Raj Act by a benck of the Gram Cutcherry, the Sub-divisional Magistrate took cognizance of the offence under Section 323 only and transferred the case to Magistrate for disposal. Before the Magistrate the petitioners were put on their trial for the offence under Section 323 and were convicted and sentenced. It has been held in that case that the Sub-divisional Magistrate was competent to take cognizance of the offences under Sections 451 and 452 also, provided he found prima facie evidence in support of them. But, when he did not, however, think it proper to do so and took cognizance of the offence under Section 323 only, he was bound under Section 69 to transfer the case at once to a bench of the Gram Cutcherry having jurisdiction over the case. The distinguishing factor is that in the Court of the Magistrate to which the case was transferred for disposal no fresh charges were framed under Sections 451 and 452 and the trial was restricted only to the offence under Section 323. Evidently enough, the Magistrate had no jurisdiction to try the offence under Section 323. It has been laid down by their Lordships of the Supreme Court in Baldeo Singh v. State of Bihar , that no Court shall take cognizance of any offence or suit which is cognizable under the Bihar Fanchayat Raj Act by a Bench of the Gram Cutcherry, unless an order to the contrary has been passed by the Sub-divisional Magistrate or the Munsif concerned under the provisions of the Act or any other law for the time being in force. It is thus well-settled that a case cognizable by a bench of the Gram Cutcherry must be tried there, and the ordinary criminal Courts have no jurisdiction to try it, unless the case is transferred to them pursuant to the provisions of Section 68 of the 'Bihar Panehayat Raj Act. Therefore, it was correctly laid down in that case that the trial was vitiated, as the case was beyond the competence of the Magistrate. In the present case, although no cognizance was taken by the Sub-divisional Officer for the offence under Section 225, the Magistrate, to whom the case was transferred for disposal framed a charge against the petitioners even under Section 225, in addition to the charges under Sections 323 and 379. The question that falls for determination is whether the transferee Magistrate was competent to charge the accused with the commission of offence under Section 225 when no cognizance of this offence had been taken by the Sub-divisional Officer. The answer is undoubtedly in the affirmative. Vnder Section 192, Criminal Procedure Code, the Sub-divisional Officer has power to transfer any ease, of which he has taken cognizance, for enquiry or trial, to any Magistrate subordinate to him. There is no limitation on the power of the Sub-divisional Officer to transfer a case, except this that he should have taken cognizance of the case. Therefore, the Sub-divisional Officer cannot transfer a case under this section, unless he has taken cognizance of it. So far as the transferee Court is concerned, there is no limitation whatsoever upon his powers of disposal. Once the case is transferred, the Sub-divisional Officer ceases to have control and direction of that case. It is well-settled that the transferee Magistrate is in full seizin of the case and has the same authority to deal with it as regards issuing of process and other matters connected with the enquiry or trial as is vested in the superior Magistrate, from whom he receives the case on transfer, as if he had taken cognizance of it, and, therefore, he has the power to charge the accused with the commission of even such an offence as has not been taken cognizance of by the transferring Magistrate and also to put on trial other persons whose names do not appear as accused in the petition of complaint, directly or indirectly, where the petition of complaint or the evidence adduced in the case disclosed the offence not taken cognizance of by the transferring Magistrate and implicated the other persons. See Madu Sudan v. Panu Parhi AIR 1926 Pat 358; Mahari Dhangar v. Baldeo Narain AIR 1926 Pat 525; Dalu Gour v. Moheswar Mahato AIR 1948 Pat 25, Deonarain v. Emperor AIR 1933 Pat 244; N. Baksi v. M. Yunus AIR 1949 Pat 47 and Province of Bihar v. Bhim Bera AIR 1947 Pat 284. The reason is that once cognizance of the case has been properly taken by a Magistrate and the case is transferred to another Magistrate under Section 192 of the Code of Criminal Procedure, the whole case must be taken to have been transferred, that is, the case as against not merely the persons actually summoned but also as against all others whom the transferee Magistrate might consider to be implicated in the offence, and further also for trial of the offence or offences shown by the petition of complaint or the evidence and not only the offence, of which cognizance was taken by the Sub-divisional Officer. Therefore, the Munsif Magistrate in this case was in full seize in of the case and could try the accused persons even for the offence, namely, the offence under Section 225 not taken cognizance of by the Sub-divisional Officer. Since the offence under Section 225 was not triable by a bench of the Gram Cutcherry, trial of the accused persons by the Munsif Magistrate cannot be said to be illegal and without Jurisdiction.

It is true that at the stage when the case was transferred by the Sub-divisional Officer to the Munsif Magistrate, the offences of which cognizance had been taken were all triable exclusively by a bench of the Gram Cutcherry. The Sub-divisional Officer could have very well transferred the case to a bench of the Gram Cutcherry. If, however, he preferred to transfer it to the Court of a Magistrate, the transfer is not illegal and without jurisdiction. It has been laid down by a Full Bench of this Court in Jhakar Abir v. Province of Bihar AIR 1945 Pat 98, that where a Court has jurisdiction to try an offence, it is immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court, which was not empowered to make the order of transfer. The jurisdiction of every criminal Court to try a particular offence is derived from statute either from the statute which creates the Court or from the statute which defines the offence and not from a particular officer. After all, the jurisdiction of a Court depends not on the offience taken cognizance of by the Sub-divisional Officer, but on the allegations made in the petition of complaint and on the evidence. As stated before, the petition of complaint clearly disclosed an offence under Section 225, which was beyond the competence of the Gram Cutcherry. Therefore, the order of transfer, assuming it to be wrong, did not affect at all the jurisdiction. of the transferee Court. Judged from this point of view, the transferee Court alone was rather competent to try the case and not a bench of the Gram Cutcherry. The illegal order of transfer had not thus the effect of destroying the jurisdiction of the transferee Court. The reason is that it is a kind of irregularity which is curable under Section 529 of the Code of Criminal Procedure. This section enumerates the irregularities which do not vitiate proceedings. It provides that if any Magistrate not empowered by law to do any of the following things, namely:

(e) to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or cl (b); (f) to transfer a case under Section 192; erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Thus, the commission of the irregularities of the kind mentioned in Clauses (e) and (f), prior to the commencement of the trial does not vitiate the trial itself. Therefore, the irregularity, if any, was curable under Section 529 of the Code.

It follows that the impugned order is illegal and without jurisdiction and must be set aside, I would, therefore, allow this application and direct that a writ of certiorari do issue to quash the order of the learned Sub-divisional Officer dated 16th May, 1960. A direction will also issue to the learned Munsif Magistrate to proceed with the case from the stage at which the records were submitted to the learned Sub-divisional Officer and dispose of the case in accordance with law.



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