M.B.SHARMA, J. - (1.) THE question involved in the present case is as to whether after withdrawal of the case by the Chief Judicial Magistrate under Sub -section (1) of Section 410, Cr.PC (1973) (for short, the Code) from the Court of Judicial Magistrate he had still the jurisdiction to decide the case?
(2.) NOW the facts: The petitioner had filed a report in P.S. Kotwali, Dholpur, then in District Bharatpur, on 16 -8 -1976 against the non -petitioners (2 to 5). The SHO of the police station registered a case under Sections 452, 327 and 323, IPC against the above numbered accused -non -petitioners. After investigation the SHO filed a charge sheet No 102 in the year 1976 in the court of the Munsif and Judicial Magistrate, Dholpur on 15 -9 -1976. That court tried the accused -non -petitioners Nos. 2 to 5 for offences under sections 147, 452, 323 or 323/149 IPC. The learned AMJM (2), Dholpur in whose court the case was received by transfer on 23 -8 -1980 under his judgment dated 9th August, 1982 convicted the accused non -petitioners (2 -5) under Sections 147, 452, 323, IPC and sentenced them for the said offences. An appeal was filed by the accused -non -petitioners (2 -5) against the said judgment, and the only ground urged in support of the appeal was that the Chief Judicial Magistrate under order dated 3 -5 -1942 had recalled the case to his court from the court of AMJM (2), Dholpur. Thus, from 3 -5 -1982 the learned AMJM (2), had ceased to have jurisdiction to the case and the judgment delivered by him on 9 -8 -1982 was without jurisdiction. The ground urged before the learned Appellate court succeeded and it allowed the appeal under his judgment dated 5 -4 -1984, and set aside the conviction and sentence passed against the accused -non -petitioners (2 -5). The learned appellate court sent back the case to the CJM Dholpur with a direction to hear arguments and decide the case afresh It is not the State which has come to this court in revision, but it is Vasudeo complainant who has chosen to come to this court in revision. I will now refer to the point framed in the beginning of this order. From the narration of facts there can be no dispute that the learned CJM in exercise of powers conferred under Section 410 of the Code had recalled the case from the court of AMJM (2), Dholpur to his own court, but still on 9 -8 -1982 the learned AMJM (2), decided the case. It appears that along with the present Criminal Case No 76/84 a few other cases were recalled by by the CJM from the court of AMJM(2) to his own court. An order was issued under Section 410(1) of the new Code recalling the present case and other cases of which list was enclosed. It appears that while the list of the cases which were recalled from the court of AMJM (2) was received, no effort was made by the office to take out the files as per the list and to place them before the Presiding Officer to show that the cases were transferred from that court to the court of CIM. Thus, it appears that the learned AMIVI (2) heard arguments and gave judgment in the case. But, this inadvertence of the court will not confer any jurisdiction on the Court, if the court has note.
(3.) A look at Sub -section (I) of Section 410 of the new Code which corresponds to Section 350 of the Old Code (1908) shows that the said Sub -section confers a power on the succeeding Magistrate to act on the evidence recorded by his predecessor, but after having heard and recorded fully or any part of the evidence in the enquiry or trial it ceases to exercise jurisdiction on succeeding by another Magistrate. A reading of Sub -section (2) of Section;