- (1.) THIS is a reference by the learned Sessions Judge, Kotah. The accused Birdhilal along with eight others including Mangilal and Chatarpal was prosecuted under sec. 341 of the Indian Penal Code in the court of the Sub-Divisional Magistrate, Kotah. The Sub-Divisional Magistrate, before whom the trial commenced, was invested with summary powers under sec. 260 of the Criminal Procedure Code by the Government of Rajasthan. He, therefore, started summary trial against the accused. Subsequently he was transferred and Shri R. D. Thapar replaced him. Mr. R. D. Thapar came from Mathurai where he was a First Class Magistrate invested with summary powers under sec. 260 by the Uttar Pradesh Government. On transfer to Kotah as a First Class Magistrate, Mr. Thapar, in the belief that he continued to enjoy summary powers under sec. 260 Criminal Procedure Code, continued the trial summarily and ultimately convicted three of the accused Chatarpal, Mangilal and Birdhilal applicant and sentenced Chatar Pal and Birdhilal to a fine of Rs. 25/- each and Mangilal to a fine of Rs. 50/ -. Against his conviction and sentence Birdhilal filed an application for revision, before the Sessions Judge, Kotah who has held that Mr. Thapar could not exercise summary powers in the State of Rajasthan unless he was invested with such powers by the State of Rajasthan and consequently he has recommended that the conviction and sentence of the applicant be quashed, and he be either ordered to be retried or be acquitted.
(2.) THE parties have not appeared. I have gone through the record and also explanation submitted by Mr. Thapar. Mr. Thapar himself admits that he has not been invested with summary powers by the State of Rajasthan and states that it was under an erroneous belief that the summary powers conferred on him by the Uttar Pradesh Government enured in the Mate of Rajasthan as well that he continued trial summarily against the accused, There is no doubt that Mr. Thapar was wrong in his belief. Summary powers under sec. 260 Cr. P. C. have to be conferred by the Government of the State under whom a particular Magistrate is serving. At present, Mr. Thapar has been transferred to Rajasthan State and the summary powers conferred by the Uttar Pradesh Government cannot enure here, unless the latter is invested with summary powers by Government of Rajasthan. He has no jurisdiction to try any case summarily. Under sec. 40 of the Criminal Procedure Code if a Magistrate is transferred within the same State to an equal or higher office of the same nature within a like local area he can exercise the same powers in the local area to which he is transferred as he enjoyed in the local area before his transfer. But when the transfer is from one State to another, sec. 40 Cr. P. C. does not authorise him to exercise those powers unless the Government of the State to which he is transferred invests him with those powers. The learned Magistrate, therefore, acted beyond his jurisdiction when he tried the case summarily. The conviction and sentence cannot, therefore, stand. The reference is accepted. The conviction and sentence of Birdhi Lal applicant is set aside. As the convictions and sentence of Mangilal and Chatarpal were bad, on the same ground, it would be illogical to maintain their convictions and sentences. The convictions and sentences are also set aside although they had not filed any application for revision. Looking to the fact that the case in the trial court took about a year and ultimately the three accused were sentenced to a small fine, I do not consider it advisable that they be retried. Their fines, if paid shall be refunded. .;