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1970 DIGILAW 169 (KAR)

SATYANARAYAN SAMBAYYA HEGDE v. STATE OF MYSORE

1970-10-26

RANGE GOWDA

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SATYANARAYAN SAMBAYYA HEGDE VS. STATE OF MYSORE ( 1 ) THIS revision petition is directed against the order dated 16-6-1970 passed by the District Magistrate, North Kanara, in case No. MAG. III. CSR. 2365 rejecting the Petitioner's application for transfer of proceedings under S. 145 of Crl. P. C. pending before the Sub- Divisional Magistrate, kumta, in case No. MAG. II. SR. 50, to some other Court of competent jurisdiction, and the petitioner before this Court is the Second Party before the Sub-Divisional Magistrate. ( 2 ) THE Second respondent before this Court who is the First Party before the Sub-Divisional Magistrate, initiated the proceedings under S. 145, cr. P. C. The petitioner filed an application before the District Magistrate for transfer of the said proceedings from the court of the Sub-Divisional magistrate to some other Court of competent Jurisdiction. He alleged in that application that he would not get justice at the hands of the Sub-Divisional Magistrate and the circumstances justified that the case should be tried by some other Court. This application was resisted by the Second respondent. It was contended before the District Magistrate that he could withdraw and transfer the proceedings to some other Sub-Divisional Magistrate under the general powers conferred on him under S. 17-A (2) of the cr. P. C. which reads thus :-"17-A (2 ). The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Magistrates subordinate to him and as to allocation of business to an Additional District Magistrate". But that contention did not find favour with him and while rejecting it this is what he stated:"for one thing, the said S. 17-A (2) is a general provision which authorises the District Magistrate to regulate the allocation of the work among his subordinate Magistrates through the issue of rules or special orders. It cannot therefore be construed as to authorise the district Magistrate to withdraw specific cases which are pending in accordance with such general allocation of business at any particular time before any particular subordinate Magistrate, and to transfer such specific cases to any other Magistrate subordinate to him. Secondly the provisions of the said section clearly require the District magistrate to exercise this general power for the distribution of business in a manner 'consistent with this Code'. Secondly the provisions of the said section clearly require the District magistrate to exercise this general power for the distribution of business in a manner 'consistent with this Code'. In the matter of such withdrawal and transfer of cases by the District Magistrate the Code had made specific provision (vide sub-section (3) of S. 528 thereof ). The wording of the sub-section also makes it clear that this power of withdrawal and transfer can only be exercised by the District Magistrate where he is authorised to do so by the State Government. Under the notification No. HD. 12/prc/69 dated 7-10-1969, the Government of Mysore have authorised all District Magistrates in the State to exercise these powers of withdrawal and transfer only in respect of proceedings under Ss. 107, 108, 109 and 110 of the Cr. P. C. If, therefore, the District Magistrate were to exercise these powers also in respect of S. 145 (1) proceedings in the absence of any specific authorisation by State Government under S. 528 (3), such action would not be consistent with the Code. As such, any order transferring S. 145 (1)proceedings pending before the Sub-Divisional Magistrate at the present juncture could not be justified under the provisions of S. 17-A (2)thereof. "it was also contended that in view of the decision in Syed Ismail Qadri v. Syed Abdul Nabi, (1969) 1 Mys. L. J. 1, such proceedings could not be transferred by a sessions Judge and hence that could be done by the District Magistrate since the Sub-Divisional Magistrate was subordinate to him. That contention too did not find favour with him. Therefore, in the view he took, he dismissed the application for transfer of proceedings as not competent, and it is that order that is questioned in this revision petition. ( 3 ) IT is contended on behalf of the petitioner that the provisions of s. 17-A (2) of the Cr. P. C. confer power on the District Magistrate to transfer proceedings of this kind pending before a Sub-Divisional Magistrate who is subordinate to him to some other Magistrate of competent jurisdiction at the instance of a party provided he is satisfied with the grounds mentioned therein. P. C. confer power on the District Magistrate to transfer proceedings of this kind pending before a Sub-Divisional Magistrate who is subordinate to him to some other Magistrate of competent jurisdiction at the instance of a party provided he is satisfied with the grounds mentioned therein. On the other hand, it is contended by Sri Laxmeswar appearing for the State that these provisions empower the District Magistrate, from time to time, to make rules or give special orders regarding the distribution of business among the Magistrates subordinate to him and the allocation of business to the Additional District Magistrates and they do not confer power on him to withdraw and transfer proceedings of this kind. It 'is pointed out by him that the power to withdraw and transfer criminal cases by the High Courts, Sessions Courts and the District Magistrates, is dealt with under Chapter XLIV of the Cr. P. C. and that S. 528 (3) Cr. P. C. clearly mentions that unless the District Magistrate is authorised by the state Government to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper or particular classes of cases, he cannot do so. It is also pointed out by him that while the provisions of Ss. 528 (1) and 528 (2) Cr. P. C. confer power on a Sessions Judge to withdraw and transfer any case pending before a Criminal Court subordinate to him, such power is not conferred on the District Magistrate and he can exercise such power only when he is authorised by the State government to do so under S. 528 (3) Cr. P. C. and that section which is relevant for the present context reads thus :-"528 (3): Power to authorise District Magistrate to withdraw classes of cases: The State Government may authorise the District magistrate to withdraw from any Magistrate Subordinate to him either such classes of cases as he thinks proper or particular classes of cases. " ( 4 ) I think there is considerable force in the contentions advanced by sri Laxmeswar. The provisions of S. 17-A (2) Cr. P. C. , in my view, do not confer on the District Magistrate power to withdraw and tranefer proceedings pending before Sub-Divisional Magistrates who are subordinate to him as contended by Mr. Koujalgi for the petitioner. " ( 4 ) I think there is considerable force in the contentions advanced by sri Laxmeswar. The provisions of S. 17-A (2) Cr. P. C. , in my view, do not confer on the District Magistrate power to withdraw and tranefer proceedings pending before Sub-Divisional Magistrates who are subordinate to him as contended by Mr. Koujalgi for the petitioner. If at all the District magistrate can withdraw and transfer the proceedings pending before a Sub-Divisional Magistrate subordinate to him, he can do so only to the extent he gets that power in accordance with the provisions of 528 (3) Cr. P. . C. It is clear, it is only the State Government which will have to authorise him in the exercise of the power vested in it under Subsection (3) of S. 528 Cr. P. C. to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper or particular classes of cases. In the present case, it is common ground that there is no notification issued by the State Government authorising the District Magistrate to withdraw and transfer proceedings of this kind and, the notification relied upon by the District Magistrate reads thus:-"in exercise of the powers conferred by sub-section (3) of S. 528 of the Code of Criminal Procedure, 1898, (Central Act 5 of 1898) as amended by the Code of Criminal Procedure (Mysore Amendment)Act, 1965 (Mysore Act 13 of 1965), the Government of Mysore hereby authorise the District Magistrate to withdraw from the Sub-Divisional magistrates subordinate to him, the cases under Ss. 107, 108, 109 and 110 of the said Code". That notification, it is manifest, does not say that the District Magistrate is authorised to withdraw and transfer proceedings under S. 145 of Cr. P. C. The District Magistrate, therefore, was correct in holding that he was not competent to withdraw and transfer the said proceedings in view of the provisions of S. 528 (3) Cr. P. C. and the notification referred to above. In the view I take, it must be held that there is no merit in this revision petition. ( 5 ) IN the result and for the reasons stated above, this revision petition fails and the same is dismissed.