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1973 DIGILAW 8 (PAT)

Arun Kumar v. Manorma Devi

1973-01-11

M.M.PRASAD

body1973
JUDGMENT Madan Mohan Prasad, J. These three applications have been heard together at the request of the parties. 2. The two applications, Criminal Miscellaneous 522 of 1972 and Criminal Miscellaneous 616 of 1972 are for the purpose of quashing the prosecution of the petitioners named therein under section 494 of the Indian Penal Code. It is necessary to state the facts of this case first in order to be able to appreciate the prayer in the third case, Criminal Miscellaneous No. 715 of 1972. The opposite party of these two applications Manorama Devi filed a complaint before the Sub-divisional Magistrate of Sasaram against these petitioners of offences under sections 494 and 494/109 of the Indian Penal Code alleging therein that she was married to petitioner Arun Kumar in June, 1962 at Dalmianagar where her father resides; as a result of the said marriage two sons and a daughter were born to them; she became weak due to under nourishment and fell seriously ill; she was brought to Dehri-on-Sone for treatment; that her husband neglected her and never came to see her nor did he take her back to his house after she became well, nor did he allow the children to be brought to her; she learnt that her husband had solemnised another marriage with Baby Sinha, the daughter of Mahendra Prasad at Deoghar on the 5th of May, 1971 and the other petitioners had abetted the offence. The Sub-divisional Magistrate examined her on solemn affirmation and referred the matter for enquiry under section 202 of the Code of Criminal Procedure (herein after referred to as 'the Code'). During the course of enquiry several witnesses were examined on her behalf and the Enquiring Officer reported that a prima facie case had been made out. As a result of it the Sub divisional Magistrate took cognizance of the offence and transferred the case to a Munsif Magistrate for disposal. 3. Against the aforesaid order passed on the 29th of January, 1972 the said Arun Kumar and his father filed a petition bearing Criminal Miscellaneous No. 522 of 1972. The other application has been filed by Mahendra Prasad and Baby Sinha. 4. It may be mentioned that the ground for quashing of the order is that the marriage having been solemnised at Deoghar, the Sub-divisional Magistrate of Sasaram had no territorial jurisdiction over the offence. 5. The other application has been filed by Mahendra Prasad and Baby Sinha. 4. It may be mentioned that the ground for quashing of the order is that the marriage having been solemnised at Deoghar, the Sub-divisional Magistrate of Sasaram had no territorial jurisdiction over the offence. 5. After the filing of the above two applications Manorama Devi filed an application under section 526 of the Code for clothing the Magistrate at Sasaram with jurisdiction by passing an order that the aforesaid case may be heard by him, which is Cr. Misc. 715/1972. 6. I will first take up the first two applications which ask for quashing of the order. The only ground raised by learned counsel for the petitioners is that the offence having been committed at Deoghar the Sub-divisional Magistrate of Sasaram had no territorial jurisdiction over the offence and the cognizance taken by him and the order for trial in violation of section 177 of the Code is without jurisdiction and illegal. It is urged that the proper course for the Magistrate was to act under section 201 of the Code and return the complaint to be filed in a proper court. 7. Learned counsel for the opposite party, has, however, relied on the provisions of section 529 of the Code and urged that the proceedings are not vitiated merely because the Magistrate was not empowered to take cognizance of the offence on account of the absence of territorial jurisdiction. The point which falls for decision in this case, it is said at the Bar, has not been raised specifically and concluded by any decision of this Court. It will be necessary to examine the relevant provisions of the Code in this connection. Section 190 of the Code provides for cognizance of offences by Magistrates. It is in the following terms: “190 (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial. (3) The State Government may empower any Magistrate of the first or second class to take cognizance under subsection (1), clause (c), of offences for which he may try or commit for trial. It would be relevant to turn to sections 36 and 37 of the Code which define the ordinary and additional powers of such Magistrates, Section 36 of the Code provides for the “ordinary powers” of certain classes of Magistrates as given in the 3rd schedule. Section 37 provides for additional powers. It lays down as follows : “In addition to his ordinary powers, any Sub-divisional Magistrate or any Magistrate of the first, second or third class may be invested by the State Government or the District Magistrate, as the case may be, with any powers specified in the fourth schedule as powers with which he may be invested by the State Government or the District Magistrate.” A reference to the third schedule to the Code would show that the power of taking cognizance is not mentioned therein. The fourth schedule, however, mentions in item nos. 8, 9 and 10, power of taking cognizance of offences upon a complaint, upon police report and without a complaint under section 190 of the Code. 8. A reading of these section makes it clear that the Magistrates specified in section 190 of the Code have the power to take cognizance and so far as a Magistrate other than the Presidency Magistrate, District Magistrate or Sub-divisional Magistrate is concerned, he must be specially empowered in this behalf. The special power of taking cognizance can be entrusted to a Magistrate by the State Government in accordance with section 37 of the Code. 9. This relates to one of the conditions requisite for a Magistrate to be competent to take cognizance of an offence. 10. There is, however, another requirement of the Code for the Magistrate's competency to take cognizance of an offence and that is that the Magistrate must have territorial jurisdiction to enquire into or try the offence. Chapter II of the Code has to be looked into for this purpose. 10. There is, however, another requirement of the Code for the Magistrate's competency to take cognizance of an offence and that is that the Magistrate must have territorial jurisdiction to enquire into or try the offence. Chapter II of the Code has to be looked into for this purpose. It provides for the constitution of criminal courts and officers. Section 6 deals with the classes of criminal courts. Sections 7 and 8 deal with territorial divisions; the former section providing for sessions divisions and districts and the latter relates to power to divide districts into subdivisions and Subdivisions to be put under the charge of a Magistrate Section 9 deals with the Court of Sessions, section 16 with the District Magistrate and section 11 with officers temporarily succeeding to vacancies in the office of the District Magistrate Section 12 is the relevant section for the present purpose and it deals with subordinate Magistrate in the following terms :- “12 (1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district out side the presidency-towns; and the State Government, or the District Magistrate subject to the control of the State Government, may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.” The next section 13 says that the State Government may place any Magistrate of the first or second class in charge of a subdivision and such Magistrate shall be called Sub-divisional Magistrate. Again a reading of this section makes it clear that any Magistrate will have the jurisdiction to exercise the powers with which he is invested and that his jurisdiction is limited to the local area defined by the State Government. It is, therefore, quite clear that a Magistrate must have also territorial jurisdiction in order to be able to exercise the powers conferred on him. 11. The result is that a Magistrate in order to be able to take cognizance of an offence must have (1) been empowered to take cognizance and (2) territorial jurisdiction over the offence. 12. It is, therefore, quite clear that a Magistrate must have also territorial jurisdiction in order to be able to exercise the powers conferred on him. 11. The result is that a Magistrate in order to be able to take cognizance of an offence must have (1) been empowered to take cognizance and (2) territorial jurisdiction over the offence. 12. The next question is whether cognizance taken in the absence of either conditions is illegal and without jurisdiction. Before I enter into this question it is necessary to notice some of the provisions of Chapter XV of the Code which deal with the jurisdiction of the criminal courts in enquiries and trials Section 177 of the Code is as follows: “Every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed.” The provisions following this section deal with cases where the general rule may not be applied. Section 178 has no relevance to the point under consideration. Section 179 provides for a case where the act complained of is done at one place and its consequence ensues at another place. Section 180 deals with a case where an act is an offence by reason of its relation to another act which is also an offence. The other sections 181 to 189 of the Code have also no relevance to the present case. It will thus be noticed that one of the requirements of law is that every offence shall be enquired into and tried by a court which has territorial jurisdiction over the offence unless otherwise provided for in the Code. I may refer to the observation of the Supreme Court in the case of Narumol v. State of Bombay A.I.R. 1960 S.C. 1329 where Gajendragadkar, J. laid down that the word "ordinarily" used in the section means "except where provided otherwise in the Code." 13. Coming to the facts of the present case it is clear that upon the complainant's own showing the offence of a bigamous marriage was committed at Deoghar in the district of Santhal Pargana, and thus not within the jurisdiction of the Sub-divisional Magistrate at Sasaram in the district of Shahabad. It may be mentioned that the facts of this case do not attract the provisions of section 179 or 180 of the Code. It may be mentioned that the facts of this case do not attract the provisions of section 179 or 180 of the Code. Although there is a charge of abetment against three persons, there is nothing in the petition of complaint to show where this offence of abetment was committed. Illustration (a) of section 180 of the Code shows that a charge of abetment may be enquired into or tried either by the court within the local limits of whose jurisdiction the abetment was committed or by the court within the local limits of whose jurisdiction the offence was committed. Had it been said by the complainant that the abetment had been committed within the jurisdiction of the Sub-divisional Magistrate of Sasaram, it could have provided a ground for the charge of abetment to be enquired into or tried by a Magistrate having jurisdiction over Sasaram or it could be enquired into or tried at Deoghar, the place where the offence is alleged to have been committed. In the absence of any statement of fact in this behalf section 180 of the Code is also not attracted to the facts of the present case. The result is that the Sub-divisional Magistrate of Sasaram had no jurisdiction over the offence. I may state here that the learned counsel for the parties have proceeded upon the footing that admittedly the Sub-divisional Magistrate of Sasaram had no jurisdiction to take cognizance of the offence in the absence of territorial jurisdiction. The point having been conceded in the circumstances of the present case it need not detain me further. It is quite obvious that in the absence of territorial jurisdiction over the offence the Sub-divisional Magistrate had no jurisdiction to take cognizance of the offence. The act of the Sub-divisional Magistrate was, therefore, in violation of section 177 of the Code. 14. The only point which has been agitated before me is whether the impugned order by which cognizance has been taken amounts to an irregularity which is curable under S. 529. Learned counsel for the opposite party has placed reliance on section 529, clause (e), of the Code. 14. The only point which has been agitated before me is whether the impugned order by which cognizance has been taken amounts to an irregularity which is curable under S. 529. Learned counsel for the opposite party has placed reliance on section 529, clause (e), of the Code. Section 529 is as follows :- “If any Magistrate not empowered by law to do, any of the following things, namely :- (a) to issue a search-warrant under section 98; (b) to order, under section 155, the police to investigate an offence; (c) to hold an inquest under section 176; (d) to issue process, under section 186, for the apprehension of a person within the local limits of his jurisdiction who has committed an offence outside such limits; (e) to take cognizance of an offence under section 190, sub-section (1), clause (a) or clause (b); (f) to transfer a case under section 192; (g) to tender a pardon under section 337 or section 338; (h) to sell property under section 524 or section 525; or (i) to withdraw a case and try it himself under section 528; erroneously in good faith does that, thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” The point which arises for consideration is whether cl. (c) of section 529 is intended to cure the defect arising out of absence of territorial jurisdiction or the absence of the power to take cognizance. In a case Emperor v. Shivaswami Guruswami A.I.R. 1927 Bom. 440 it was held that the word “empowered” in sections 529 and 530 of the Code may refer to the ordinary or special powers referred to in sections 36 and 37 and Schedules 3 and 4 of the Code of Criminal Procedure. In the case of Magistrate not empowered under sections 36 and 37 to take cognizance of an offence under section 190, sub-section (1), clauses (a) and (b), erroneously in good faith takes cognizance, his proceedings shall not be set aside on the ground of his not being empowered. There are several reported cases which show that the word "empowered" relates to the failure of the Magistrate under sections 36 and 37 of the Code and not to the absence of territorial jurisdiction over the offence. There are several reported cases which show that the word "empowered" relates to the failure of the Magistrate under sections 36 and 37 of the Code and not to the absence of territorial jurisdiction over the offence. In a case, the State of Andhra Pradesh V. Cheemalapati Ganeswara Rao and another A.I.R. 1963 S.C. 1850 there was a bonafide order granting pardon by the Additional District Magistrate in a case pending enquiry before the Magistrate. It was held that a pardon granted bonafide is fully protected by the provisions of section 529 of the Code. In Bhansingh Jubarsingh v. State 1957 Cri. L.J. 67 a Special Judge had granted pardon under section 337 of the Code without having powers to do so. This irregularity was held to be protected by section 529. In Purshottam Jethanand v. The State of Kutch A.I.R. 1954 S.C. 700 there was conviction of a Police Jamadar of an offence under section 384 of the Indian Penal Code. There was absence of a proper notification empowering the Magistrate who had taken cognizance of the case and the defect was deemed to have been cured by section 529 of the Code, the act of the Magistrate being bonafide and no prejudice having been shown. In the case of Asha Das and others v. The State A.I.R. 1953 ASS 1, the question was whether the trial of an accused was vitiated on account of the fact that after having received the complaint the Magistrate had directed the Police to investigate and report and the Police had submitted a charge sheet on the basis of which the proceeding had been initiated. Reliance was placed on section 529 (e) of the Code for curing the irregularity in the exercise of the jurisdiction by the Magistrate. There was no question of territorial jurisdiction involved in this case. 15. In my view, therefore, section 529 merely lays down that even though a Magistrate may not be empowered by law to do any of these things mentioned in this Section, yet if he has done so in good faith and erroneously the proceeding is not to be set aside merely on the ground of his not being so empowered. 15. In my view, therefore, section 529 merely lays down that even though a Magistrate may not be empowered by law to do any of these things mentioned in this Section, yet if he has done so in good faith and erroneously the proceeding is not to be set aside merely on the ground of his not being so empowered. In this connection the word "merely" also must be taken notice of and it is quite clear that if there are other grounds on which the proceeding can be questioned, section 529 (e) cannot have the effect of curing the irregularity arising out of the absence of power to take cognizance. In other words, even if the Magistrate is not empowered to take cognizance, for instance, not being invested with such powers or there being some irregularity in respect of the investing of such powers, and apart from this defect there is some other defect also on which ground the order can be challenged, section 529 does not afford protection to the act. In Kabir and others V. State 1964 All. L.J. 304, permission had been given to the police to investigate into a non-cognizable offence, by the City Magistrate of Varanasi under section 155 (2) of the Code. A preliminary objection was raised that the City Magistrate had no territorial jurisdiction and, therefore, his order was invalid. On facts it was found that the City Magistrate had territorial jurisdiction and thus his order was not invalid. An observation has, however, been made by the learned judge which is as follows :- “Even if it be assumed for the sake of argument that the City Magistrate was not a Magistrate contemplated by section 155 (2) Cr. P. C., the irregularity would be curable under section 529 (b) Cr. P. C. Section 529 covers any order passed by a Magistrate erroneously but in good faith. The City Magistrate had apparently acted in good faith and even if he acted erroneously the order shall be protected by section 529 and cannot be set aside simply because on correct interpretation of the law he was not so empowered.” It will be noticed that in view of the finding that the City Magistrate had territorial jurisdiction the point whether section 529 of the Code is intended to cover orders passed by a Magistrate not having territorial jurisdiction, did not fall for decision. 16. 16. On the other hand, there are some cases which lend support to the view that section 529 of the Code has no application to cases of absence of territorial jurisdiction. In the case of Queen Empress v. Chidda and others (1898) XX All. 40 (DB) a person had been granted pardon by a Magistrate who had no territorial jurisdiction over the offence and it was held that section 529 “is a section which deals with acts done by a Magistrate in no way empowered by law to do those acts; it has no reference to a Magistrate empowered otherwise under the Act to tender pardon but not possessing jurisdiction over the particular offence.” In the case of Mt. Bhagwati and others v. King Emperor AIR 1925 Pat 187 the facts were similar to the present case in as much as it related to a bigamous marriage alleged to have been solemnized at a place in Bengal and the case had been filed at Buxar in the district of Shahabad in Bihar, as a result of which the petitioners of that case had been committed to take their trial before the Sessions Judge of Shahabad. There were also certain persons charged with abetment of the offence. The commitment of the persons who had entered into a bigamous marriage was quashed on the ground that the court had no territorial jurisdiction over the offence. The question as to whether an order of cognizance was cured by section 529 (e) of the Code did not arise in that case because the case had proceeded to a later stage, namely, the commitment of the accused to the court of Session. In another case Ramdin Lal v. Emperor AIR 1937 Pat 176 the complaint had been filed by a court which had no jurisdiction to file the complaint under section 193 of the Indian Penal Code and as a result thereof the petitioner of that case was convicted. It was argued that section 529 (e) of the Code protected the irregularity. The learned Judge, however, held against the contention and observed that the words “not so empowered” referred to want of power in the Magistrate rather than a defect in or absence of the complaint itself. The trial was held to be bad and the conviction was set aside. In a case Rathinam Pillai v. Emperor AIR 1932 Mad. The learned Judge, however, held against the contention and observed that the words “not so empowered” referred to want of power in the Magistrate rather than a defect in or absence of the complaint itself. The trial was held to be bad and the conviction was set aside. In a case Rathinam Pillai v. Emperor AIR 1932 Mad. 427 an offence under section 182 of the Indian Penal Code was the subject matter of the case and the offence was held to have been completed at Kumba Konam where as the trial was proceeding at Tanjore. It was held that the latter court had no territorial jurisdiction over the offence and, therefore, the order of the Magistrate was set aside and he was directed to return the complaint under section 201 of the Code for presentation to the proper court. In the case of Bijoyanand Patnaik v. Mrs. K. A. A. Brinnand AIR 1970 Cal. 110 the charge against the petitioner of that case was one under section 406 of the Indian Penal Code but it was found that neither the entrustment nor conversion had taken place within the territorial jurisdiction of the Magistrate where the complaint had been lodged. The learned Judge considered the effect of section 177 of the Code and held that the court had no territorial jurisdiction and, therefore, quashed the impugned order. In the case of Vasantha Krishnaswami v. M. S. Krishnaswami AIR 1967 Mad. 241 cognizance of the offence under section 494 of the Indian Penal Code had been taken and a witness for the prosecution examined when the accused filed a petition that the Magistrate had no territorial jurisdiction over the offence inasmuch as the marriage was alleged to have taken place in North Arcot district whereas the complaint had been filed in the court of a Magistrate at Madras. The Magistrate upheld the objection. As against this there was a revision application before the High Court and it was held that the order of the Magistrate was correct in view of section 177 of the Code. The question of application of section 529 of the Code was, however, not considered in this case. In the case reported in A.I.R. 1960 Supreme Court 1329 (supra) the prosecution was for a bigamous marriage contracted at Khandwa in Madhya Pradesh and the trial was held at Nasik in Bombay. The question of application of section 529 of the Code was, however, not considered in this case. In the case reported in A.I.R. 1960 Supreme Court 1329 (supra) the prosecution was for a bigamous marriage contracted at Khandwa in Madhya Pradesh and the trial was held at Nasik in Bombay. The plea of absence of territorial jurisdiction was taken and the accused persons were acquitted. The High Court of Bombay, however, reversed the conclusion of the Magistrate on the question of jurisdiction and convicted the appellant. On a certificate granted by the High Court there was an appeal before the Supreme Court. The appeal was allowed. A majority of the learned Judges of the Supreme Court for whom Gajendragadkar, J. spoke, observed that the rule laid down by section 177 of the Code is one of general application and governs all criminal trials held under the provisions of the Code. In that case the argument was that section 8 of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946, intended a departure from the general rule laid down in section 177 of the Code. In this connection their Lordships observed that it must clearly appear from the relevant provision of the special statute that a departure from the general principle prescribed by section 177 of the Code is intended and they found that section 8 of that Act did not show that such a departure was intended. It is significant to note that in this case although the question of territorial jurisdiction was involved their Lordships did not bring to aid either section 529 or section 531 of the Code to support the conviction by the High Court or to hold that the Magistrate had erred in acquitting the appellant on the ground of absence of territorial jurisdiction. In Purushottamdas Dalmia v. State of West Bengal AIR 1961 SC 1589 there was a conviction of the appellant under section 120B read with section 471 of the Indian Penal Code and on two counts under section 471 read with section 466 of the Indian Penal Code with respect to two documents. The trial had been held in the Calcutta High Court but some of the overt acts were alleged to have been committed outside the jurisdiction of that court. The trial had been held in the Calcutta High Court but some of the overt acts were alleged to have been committed outside the jurisdiction of that court. Their Lordships held that the provisions of sections 233 to 239 also provided exceptions to section 177 of the Code and the trial was, therefore, legal. Their Lordships considered the questions of jurisdiction and the difference between one type of jurisdiction with respect to power of the courts to try all kinds of offences, a jurisdiction which goes to the root of the matter and territorial jurisdiction to which similar importance is not attached by the Legislature. They observed as follows : “Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the witnesses who have to appear before the court. It is, therefore, that it is provided in section 177 that an offence would ordinarily be tried by a court within the local limits of whose jurisdiction it is committed.” In a subsequent decision in the case of L. N. Mukherjee v. State of Madras AIR 1961 SC 1601 the earlier decision of the same volume of the report referred to above, was followed. This was also a case of criminal conspiracy and the provisions of section 239 of the Code were held to be attracted to the facts of that case. 17. In Bai Nirmalabai Revadas v. Revadas Phikkabhai AIR 1654 Bom. 327 also there was a bigamous marriage contracted at Broche and the complaint had been filed before the Presidency Magistrate at Bombay. The Magistrate having held that he had no territorial jurisdiction, had dismissed the complaint against which a revision application was filed before the High Court Shah, J. held that the Court having no territorial jurisdiction to try the offence, the view of the Magistrate was correct. 18. There are a few other cases where the question of territorial jurisdiction was involved, but the decisions in those cases did not proceed on a consideration of section 529 of the Code but on a consideration of section 346 or section 531 of the Code. 18. There are a few other cases where the question of territorial jurisdiction was involved, but the decisions in those cases did not proceed on a consideration of section 529 of the Code but on a consideration of section 346 or section 531 of the Code. I will have occasion to refer to those cases hereafter for the purpose of considering the prayer of the petitioner in the third case under section 526 of the Code. Those cases are : Employees State Insurance Corporation v. M. Haji Md Ismail Sahib and others AIR 1960 Mad 64 , Amarendra Nath v. Raghunath Nandan and others AIR 1952 Cal. 849 Mohammad Abbus Ali v. Indra Prakash Kapoor AIR 1965 Cal. 626 , State v. Pokker and others AIR 1959 Ker. 53 , The State v. Amrutlal Prabhu das AIR 1964 Guj. 248 and State v. Pyloth AIR 1956 Tra Co. 29. 19. It will thus appear that there is no decision which supports the view that section 529 of the Code is intended to cure the defect of territorial jurisdiction or that the words “not empowered by law” are meant to cover the absence of power on account of lack of territorial jurisdiction. After an anxious consideration of the question I have come to the view that section 529 of the Code has no relation to the question of territorial jurisdiction at all. It will be relevant to notice that the Legislature has provided in section 531 of the Code for a case where the proceeding started in a wrong placed in other words in a court having no territorial jurisdiction. Secondly, that the words "empowered by law" do not have any application to the question of territorial jurisdiction. Territorial jurisdiction is not conferred on a Magistrate by virtue of a law in the sense in which jurisdiction is conferred on a Magistrate by virtue or section 37 of the Code. I have already referred to Chapter II of the Code and it appears from a reading of section 12 that all that the State Government have to do is to appoint District Magistrate and Magistrates of the first, second and third class and define the local areas within which they may exercise such powers. I have already referred to Chapter II of the Code and it appears from a reading of section 12 that all that the State Government have to do is to appoint District Magistrate and Magistrates of the first, second and third class and define the local areas within which they may exercise such powers. A reading of section 13 also makes it clear that all that the State Government have to do is to appoint any Magistrate of the first or second class to be in charge of the subdivision and such Magistrate is called the Sub-divisional Magistrate. It is thus not a case of conferring of powers or empowering by law such Sub-divisional Magistrate with territorial jurisdiction. A Sub-divisional Magistrate gets jurisdiction over the territory comprised within the subdivision by virtue of his appointment as such. It is pertinent to note in this connection that under Schedule 4 of the Code the power to take cognizance of offences under section 190 of the Code has to be conferred on Magistrate of the first, second and third class and this is done by virtue of section 37 of the Code. There is no provision in the Code except those mentioned in Chapter II which lays down that the State Government have to do any thing more than merely defining the local areas by way of territorial division for the purpose of conferring territorial jurisdiction on the Magistrates. There is thus no question of Magistrates being empowered by law for the purpose of having territorial jurisdiction. The appointment of the Magistrate and the definition of the area over which they exercise jurisdiction may be the result of the mere administrative act of the State Government and it may not be necessary to have a law. I am, therefore, of the view that the words "empowered by law" refer necessarily to the empowering of Magistrate to take cognizance of offences under section 37 of the Code. It will also appear that as against the general rule laid down in section 177 of the Code the Legislature itself has provided for cases where the aforesaid rule need not govern them. The sections which follow section 177 point in that direction. In view of the decision of the Supreme Court it is also clear that the word "ordinarily" means except where otherwise provided for by the Code. The sections which follow section 177 point in that direction. In view of the decision of the Supreme Court it is also clear that the word "ordinarily" means except where otherwise provided for by the Code. It also appears from the observations of their Lordships of the Supreme Court that if a departure is made it must be shown that there is a valid sanction for such a departure, otherwise the general rule laid down in section 177 would be deemed to govern all criminal cases. In such circumstances section 529 of the Code does not appear to me to cover cases of absence of territorial jurisdiction but refers only to cases where it here has been some irregularity in the exercise of a jurisdiction or there is a lack of jurisdiction for some reason and the matter does not go to the root of jurisdiction. Their Lordships have pointed out in" the aforesaid case that so far as this type of jurisdiction is concerned, it is vested in Magistrates keeping in view the nature of responsibility, the ability of the officer etc. Although territorial jurisdiction may have been provided for keeping in view conveniences and may not be as important as the other kind of jurisdiction, none the less the Legislature having provided one rule an unwarranted departure from the same cannot be ignored. 20. That brings me to the next question which arises out of the words used in section 529, namely, that the Magistrate must be acting "erroneously in good faith" in order that the proceedings before him may not be set aside merely on the ground of his being not so empowered. It is well settled that good faith excludes negligence and carelessness and that the words import due care and caution. No authority is needed for such a proposition. In the present case it appear to me that the learned Magistrate acted absolutely carelessly in taking cognizance of the offence and transferring the case for trial to another Magistrate. It is obvious that he did not apply his mind fully to the facts stated in the complaint. There is nothing therein to show that any of the acts complained against had taken place at Sasaram or any place within his jurisdiction. On the other hand, it clearly states that the marriage had been contracted at Deoghar. It is obvious that he did not apply his mind fully to the facts stated in the complaint. There is nothing therein to show that any of the acts complained against had taken place at Sasaram or any place within his jurisdiction. On the other hand, it clearly states that the marriage had been contracted at Deoghar. It ought to have struck the learned Magistrate that the offence having been committed at Deoghar he had no jurisdiction to entertain the complaint. A routine order, however, seems to have been passed, of cognizance taken and case transferred to another Magistrate for disposal. There is absolutely nothing on the facts of the present case which can lead even to a guess; that the Magistrate had acted in good faith. There was a complete absence of care and caution in this respect. Even assuming, therefore, that section 529 has an application to the facts of the present case in view of the act having been done in a careless manner the protection afforded by section 529 (e) of the Code to this defect, if any, must be excluded. 21. There is another question which needs consideration on the facts of the present case. Assuming that section 529 (e) of the Code applies, the question is whether that is the only ground on which the order is asked to be set aside. It appears from section 529 of the Code that the Legislature has used the words "merely on the ground of his not being so empowered". It is obvious that unless the absence of power is the only ground against the Magistrate taking cognizance it cannot be cured. In the present case that is not the only ground. The second ground which obviously arises from the impugned order is that the Magistrate had also no jurisdiction to transfer the case to a Magistrate subordinate to him who had no territorial jurisdiction over the offence. It may be argued that the order of transfer under section 192 of the Code also would be curable under clause (f) of section 529 of the Code. It may be argued that the order of transfer under section 192 of the Code also would be curable under clause (f) of section 529 of the Code. Here, however, it must be noticed that the order of transfer is not challenged on the ground alone that the Magistrate was not empowered to transfer it to a Magistrate who had no territorial jurisdiction, but because the latter Magistrate has no territorial jurisdiction to try the offence and, therefore, the order of transfer to him is illegal. Apart from this, in view of what I have held above, in respect of the meaning of the words "not empowered by law", it is obvious that an order of transfer by a Sub-divisional Magistrate who himself has no territorial jurisdiction over an offence, to another Magistrate who also has no territorial jurisdiction to try the same, cannot be cured under clause (f) of section 529 of the Code. It may be said that where a court has jurisdiction to try an offence, it is immaterial whether the case has been transferred to it by another court which was not so empowered to make the order of transfer. But, to my mind, it would be too much to say that even though the trying court has no jurisdiction and the transferring Court also had no jurisdiction, the illegality would still be cured by section 529, clause (f), of the Code. 22. It does not need repetition that in the present case the learned Sub-divisional Magistrate did not apply his mind to the facts of the case at all either for the purpose of taking cognizance or for the purpose of transferring the case, under section 192 of the Code to another Magistrate., This ground also is, therefore, equally applicable to the order of transfer and it cannot be held in the circumstances of the present case that the Magistrate had acted erroneously in good faith. 23. As a result, I find that neither the taking of cognizance by the Magistrate nor the order passed by him transferring the case for trial can be held, in the absence of territorial jurisdiction in both the Magistrate, to have been cured by section 529 of the Code. Accordingly the impugned order passed by the learned Magistrate is illegal. 24. I now come to the third case, Criminal Miscellaneous 715 of 1972. Accordingly the impugned order passed by the learned Magistrate is illegal. 24. I now come to the third case, Criminal Miscellaneous 715 of 1972. This case raises another question of law on which there has been conflict of opinions amongst various High Courts, namely, whether a High Court can act under section 526 of the Code for the purpose of clothing a Magistrate who has no territorial jurisdiction over an offence and before whom a case is pending, with jurisdiction to try the offence in spite of the absence of territorial jurisdiction. The petitioner in this case has based her prayer on the grounds mentioned in clauses (d) and (e) of section 526 of the Code and the prayer is for an order under clause (i) of sub-section (1) of section 526 of the Code. In other words, the petitioner says that an order under this section will tend to the general convenience of the parties and witnesses and that such an order is expedient for the ends of justice. The prayer is for an order that the offence be enquired into and tried by the Magistrate at Sasaram who is in seisin of the case but has no territorial jurisdiction and thereby clothe the aforesaid Magistrate with jurisdiction. 25. There can be no dispute about the proposition of law that the High Court has powers to transfer a case even to a court which has no territorial jurisdiction over the offence and that is quite clear from the first clause that "any offence be enquired into or tried by any court not empowered under sections 177 to 184 both inclusive but in other respects competent to enquire into or try such offence." This is one of the exceptions contained in the Code itself to the general rule mentioned in section 177 that all enquiries and trials shall take place in a court having territorial jurisdiction. The question, however, arises whether section 526 is intended to or enables the High Court to transfer a case from a court which has no territorial jurisdiction to the same court by virtue of the aforesaid clause (i). The heading of Chapter XLIV of the Code and the marginal heading of section 526 both deserve notice. The question, however, arises whether section 526 is intended to or enables the High Court to transfer a case from a court which has no territorial jurisdiction to the same court by virtue of the aforesaid clause (i). The heading of Chapter XLIV of the Code and the marginal heading of section 526 both deserve notice. The heading of the chapter is "Transfer of criminal cases" and the marginal heading of section 526 is "High Court may transfer case or itself try it." It is also necessary to notice that in clause (ii) the order which a High Court may pass is that a particular case or appeal or class of cases or appeals be transferred from a criminal" court to any other criminal court. The third clause relates to order of transfer by the High Court to itself. The fourth clause relates to order the commitment for trial of an accused, to itself or to a court of session. Reading the various clauses in the section as a whole it appears that the Legislature intended to cover cases of transfer from one court to another. A fictional transfer from a court to the same court does not appear to me to have been intended by the Legislature and this view finds support from decisions to which I shall refer hereafter. 26. There is another point which arises, namely, whether section 526 of the Code enables a High Court, and is intended to do so to transfer a case from a court having no territorial jurisdiction to try the offence. I must state at the outset that in my view section 526 does not envisage a transfer from a court having no jurisdiction to another having jurisdiction. Section 526 of the Code has to be read as a whole for the purpose of finding out the intention of the Legislature Clauses (a) to (e) of sub-section (1) provide the reasons for which an order of transfer may be made. The first one is that a fair and impartial enquiry or trial cannot be had in the court. Obviously it does not relate to a court not having jurisdiction. On the other hand, it appears to be clear that the court is competent to make an enquiry or trial, but it would not be fair or impartial. The first one is that a fair and impartial enquiry or trial cannot be had in the court. Obviously it does not relate to a court not having jurisdiction. On the other hand, it appears to be clear that the court is competent to make an enquiry or trial, but it would not be fair or impartial. The reason has thus no application to a court having no jurisdiction to try a case. Clause (b) gives the reason of a question of law of unusual difficulty arising in the case. Again, it must be assumed that such difficulty is intended to be in respect of a case which the court has jurisdiction to try. Clause (c) mentions the reason that a view of the place in or near which an offence has been committed may be required for the satisfactory enquiry or trial. Again, it will be noticed that the assumption of the Legislature appears to be that although the court is competent to try the offence its transfer to another court is necessary with a view to enable that court to have a view of the place in or near which any offence has been committed and for that purpose, as will appear from the nature of the order provided for in clause (i), the case may be transferred even to a court having no territorial jurisdiction. Clauses (d) and (e) refer to the grounds of general convenience of the parties and the requirements of the ends of justice. Coming to the nature of the order which may be passed by the High Court, the first clause enables it to transfer to a court which has no territorial jurisdiction, but is in other respects competent to enquire into or try such an offence. The other clauses (ii), (iii) and (iv) refer to transfer to itself from the court where the case is pending or transfer from one court to another. It is obvious, therefore, that the Legislature did not intend that the High Court would transfer a case from a court which has no jurisdiction to try to another court which also has no territorial jurisdiction. Unless there is anything to show the contrary, the plain meaning must be given to section 526 of the Code. It is obvious, therefore, that the Legislature did not intend that the High Court would transfer a case from a court which has no jurisdiction to try to another court which also has no territorial jurisdiction. Unless there is anything to show the contrary, the plain meaning must be given to section 526 of the Code. It is obvious that the Legislature intended a transfer of a case from a proper court to another proper court or even to another court having no territorial jurisdiction. If the reasons given in clauses (c), (d) and (e) are read along with the orders which may be passed by the High Court there is no good reason to think that the Legislature envisaged transfer of a case from a court which has no jurisdiction to another court. The same view appears to have been taken by a Full Bench of the Kerala High Court in State v. Pokker and others AIR 1959 Ker. 53 (FB). In that case the complaint had been filed before a Sub-Magistrate at Kasaragod but the place of occurrence lay within the jurisdiction of the Sub-Magistrate at Hosdrug, and thus the question of territorial jurisdiction was involved. The learned Judges held that the power of transfer of a case given to a higher court is to transfer a case from a court having jurisdiction to receive and try it. They relied on Peary Lall v. Komal Kishore I.L.R. 6 Cal. 30 which the Privy Council cited with approval in Ledgard v. Bull I.L.R. 9 All. 191 and a decision of the Bombay High Court in Queen Empress v. Mangal Tekchand I.L.R. 10 Bom. 274. They also relied on a Division bench decision of the Travancore-Cochin High Court in State v. Pyloth 1955 Ker L.T. 756=AIR 1956 Tra. Co. 29 where it had been held that "the High Court is competent to transfer a case under the Civil Procedure Code as well as under the Criminal Procedure Code only from a court having jurisdiction to receive and try it and that the question of the transfer of a case from a court which has no jurisdiction to receive and try it is not merely a matter of procedure, but one of jurisdiction." Their Lordships accepted the view taken in two Madras decisions, Sowbagiammal v. Raphael (1954) Mad. W.N. 662 and District Magistrate v. Abdul Kareem AIR 1943 Mad 526 . W.N. 662 and District Magistrate v. Abdul Kareem AIR 1943 Mad 526 . 27. In A.I.R. 1954 Bombay (supra) Shah, J. observed as follows- “It is true that when a complaint or a proceeding is filed in a court which is otherwise competent to try it under the Criminal Procedure Code by reason of section 526 of the Code, this Court may be entitled to transfer the complaint or proceeding to any competent court which may not have territorial jurisdiction over the complaint or the proceeding. But this Court has no jurisdiction to invest a court competent to try a case before which a case is pending with authority to try that case. This court has jurisdiction to transfer cases pending in subordinate courts competent to entertain and try them, to other courts subordinate thereto, but has no jurisdiction to confer authority upon courts to enquire and try cases which they had initially no jurisdiction to entertain." 28. A. contrary view appears to have been taken in A.I.R. 1952 Calcutta 849 (supra), A.I.R. 1965 Calcutta 626 (D.B.) (supra) and A.I.R. 1960 Madras 64 (P.B.) (Supra). In the first Calcutta case the offence had been committed at a place called Baranagar and the complaint had been filed at Barrackpore. The prosecution witnesses had been examined, arguments had been heard and the case had been adjourned for framing of charge. On that date the Magistrate detected that he had no territorial jurisdiction to try the case. Thereafter the complainant moved the Calcutta High Court under sections 439 and 526 of the Code. The accused also moved the Court for quashing of the proceeding. The prayer for quashing was disallowed. The prayer of the complainant, however, was granted by passing an order under section 526 (1), clause (i) of the Code. Admittedly the Magistrate had no local jurisdiction to try the case. The learned Judges accepted the arguments put forward before them that the Magistrate ought to have acted under section 346 of the Code and that it was a fit case where the High Court should exercise this power under section 526 (1) (i) of the Code. So far as the first point is concerned, reliance was placed on a case reported in 2 Weir 323 2 Weir 323. (In re-Munisami) and the decision on the point in A.I.R. 1943 Madras 526 (supra) was held to be obiter. So far as the first point is concerned, reliance was placed on a case reported in 2 Weir 323 2 Weir 323. (In re-Munisami) and the decision on the point in A.I.R. 1943 Madras 526 (supra) was held to be obiter. So far as the second point is concerned, their Lordships merely said as follows: “We are also of the opinion that having regard to the peculiar circumstances of this case and the progress already made therein before the learned Magistrate there is sufficient justification for the exercise of our powers under section 526 (1) (i), Criminal Procedure Code.” The order which they passed was "to direct the learned trying Magistrate to proceed with the trial of the case". With great respect, I find there is absolutely no consideration of the questions which I have raised earlier. It appears to have been taken for granted that in exercise of the powers under clause (i) of subsection (1) of section 526 of the Code the High Court could pass an order of the kind passed in this case. I am unable to accept this decision as any guide in the matter. It may be pointed out that the learned Judges in A.I.R. 1959 Kerala 53 (supra) have shown that it was not correct to say that the decision in A.I.R. 1943 Madras 526 (supra) was an obiter or that the decision in 2 Weir 323 (supra) had laid down what it was understood by the learned Judges of the Calcutta High Court to have laid down. 29. In the case of A.I.R. 1965 Calcutta 626 (D.B.) (supra) again the offence was alleged to have taken place at Calcutta within the original jurisdiction of the High Court, but the complaint had been filed before the Magistrate at Sealdah, District 24 Jarganas, who had no territorial jurisdiction. A prayer was, therefore, made for directing the Magistrate of Sealdah to try and dispose of the case under section 526, sub-section (1), clauses (d), (e) and (i), of the Code. In a very short judgment the learned Judges held that section 346 had no application in as much as the Magistrate had not found that he was not competent to try it, but the fact had been found by the petitioner. In a very short judgment the learned Judges held that section 346 had no application in as much as the Magistrate had not found that he was not competent to try it, but the fact had been found by the petitioner. They did not accept the view of Kerala High Court in the aforesaid Full Bench case because it went against the view in A.I.R. 1952 Calcutta 849 (supra) which they accepted. They also relies on the previous Calcutta case for passing the order under section 526 of the Code as prayed for and on that basis they ordered accordingly. Like the first Calcutta case there was no consideration even in this case of the various questions involved in the determination of the question whether High Court could pass an order. It is also significant that in both the cases the learned Judges could not have directed a transfer of the case for the simple reason that they did not involve the question of transfer from one court to another. Therefore, they issued directions to the court having no territorial jurisdiction to proceed with the case, thereby clothing the court with such jurisdiction to try the case. 30. In A.I.R. 1960 Madras 64 (supra) there were several cases pending before the Presidency Magistrate which it was said he had no territorial jurisdiction to try. An objection was taken by the accused in this respect. Somasundarm, J. who heard the matter when it came to the High Court, was of the view that the Court had no power to direct a Magistrate who had no territorial jurisdiction to try the case unless it was by means of a transfer and that if a court had no territorial jurisdiction to try those cases, the High Court had no power to invest that court with jurisdiction to try the same. There was, however, another prayer in this case to transfer the case from the file of the Chief Presidency Magistrate to the court of the Magistrate who had territorial jurisdiction. The learned Judges felt that a decision of their Court reported in Assistant Sessions Judge, North Arcot v. Ramammal I.L.R. 36 Mad. 387 which was in conflict with other cases and the principle laid down by Privy Council, required reconsideration and the matter went to the Full Bench as a consequence thereof. The learned Judges felt that a decision of their Court reported in Assistant Sessions Judge, North Arcot v. Ramammal I.L.R. 36 Mad. 387 which was in conflict with other cases and the principle laid down by Privy Council, required reconsideration and the matter went to the Full Bench as a consequence thereof. On the first point raised before the Full Bench, namely, whether the Chief Presidency Magistrate had jurisdiction, the learned judges found that he had territorial jurisdiction to enquire into the matter. On the other question, namely, the jurisdiction of the High Court to confer jurisdiction on the Presidency Magistrate, they held that under sub-section (1) the High Court was empowered to confer the jurisdiction on a court not having local jurisdiction but otherwise competent to enquire into the same. All that appears to have been cited in support of this conclusion in the Judgment of Ramaswami J. is the history of section 526 of the Code. It appears from the other judgment of Basheer Ahmad Sayeed, J. also that Chief Presidency Magistrate before whom the cases were pending and who was directed to proceed with the trial had jurisdiction to try the offences in respect of which the accused stood charged. His judgment also shows that the learned Judge drew a distinction between section 24 of the Code of Civil Procedure and section 526 of the Code and said that the reading of the latter section made it clear that the powers therein were wider. After drawing this distinction the learned Judge discussed the cases reported in A.I.R. 1943 Madras 526 (supra) and Sowbgiammal v. Raphael and distinguished them on facts. With very great respect, the learned Judges have not considered the various questions which have been raised by me and also in other cases referred to above, nor there appears to be any discussion in support of the conclusion. With very great respect, the learned Judges have not considered the various questions which have been raised by me and also in other cases referred to above, nor there appears to be any discussion in support of the conclusion. In support of their conclusion the learned Judges have referred to the case in re Ganapathy Chetty and another AIR 1920 Mad 824 where it was held that assuming that the High Court in its original criminal jurisdiction had no power in the usual course to try the case, the appellate side of the High Court could exercise the power given to it by section 526 (l) for reasons (d) and (e) to pass an order that the offences committed outside the jurisdiction of Madras be also tried in the High Court criminal sessions along with other offences which were committed in Madras. It appears to have escaped the notice of the learned Judges that by virtue of clause (1) it is certainly within the jurisdiction of the High Court to order a case to be tried by a court which has no territorial jurisdiction. The Madras High Court had no territorial jurisdiction and it could very well make an order transferring the case from another court to itself to try it. It will be pertinent to notice that Sadasiva Aiyar, J. stated in that case that the case before him was not a case of want of jurisdiction in the court to which the commitment had been made. The argument that under the Letters Patent the Madras High Court had original criminal jurisdiction to try cases arising throughout the Presidency, was accepted. That being so, there was neither want of jurisdiction in the court to which the commitment had been made nor in the Madras High Court itself. The case is, therefore, of no avail to support the proposition laid down by the learned Judges in the Full Bench case. It is thus no authority for the proposition that the High Court can transfer a case from a court which has no territorial jurisdiction to itself. Another case of Bombay High Court, Queen-Empress v. Atmaram Govind II Bom LR 394. 33 has been relied on. In this case it appears that the offence had been committed in Bombay and the commitment had been made to the court of session at Ratnagiri. Another case of Bombay High Court, Queen-Empress v. Atmaram Govind II Bom LR 394. 33 has been relied on. In this case it appears that the offence had been committed in Bombay and the commitment had been made to the court of session at Ratnagiri. The learned Judges in this case in a one-paragraph order held that the case was covered by section 531 of the Code and a case of Queen-Empress v. Thaku (1884) ILR Bom 312 served as a precedent. On these grounds they allowed the trial to proceed before the Sessions Judge of Ratnagiri. In the absence of any discussion of various questions arising, this decision is also not of much use to me. 31. It further appears from the report that the learned Judges, also relied on Wahid Bux Bhutto and others v. Emperor AIR 1929 Sind 250 Queen-Empress v. Ram Dei and others ILR 18 All 350 and Queen-Empress v. Thaku (1884) ILR 8 Bom 312 and ultimately held that where an offence is being enquired into or tried by a court contrary to the provisions of sections 177 to 184 of the Code, the error can be rectified by the High Court by an order formally made under the provisions of section 526 (1) that the case be tried by such a court. 32. In A.I.R. 1929 Sind 250 (supra) the applicants had taken the point that a transfer could only be made by a High Court from a court having jurisdiction to try it. The learned Additional Judicial Commissioner merely referred to the views expressed in I.L.R. 18 Allahabad 350 (supra), I.L.R. 8 Bombay 312 (supra) and II Bombay Law Reports 394 (supra) and said that he agreed with the views taken in those cases and on that ground decided the case before him. There is no independent consideration appearing in the Report of the various questions of law. In I.L.R. 18 Allahabad 350 (supra) again I find a very short judgment and the learned Judges held that the procedure followed by the Bombay High Court in I.L.R. 8 Bombay 312 (supra) was correct and accordingly made an order for transfer of the trial. Again I find no discussion in this case of the various questions which deserve consideration. I now examine the case reported in I.L.R. 8 Bombay 312 (supra). This again is one paragraph judgment. Again I find no discussion in this case of the various questions which deserve consideration. I now examine the case reported in I.L.R. 8 Bombay 312 (supra). This again is one paragraph judgment. It appears that an accused was charged with bigamy committed in the district of Nasik and was committed to the court of session at Nasik for trial. The Sessions Judge found that the offence had been committed within the territorial jurisdiction of the court at Ahmadnagar. The learned Judges placed reliance on section 531 of the Code and said that the commitment order could not be set aside unless a failure of justice had been occasioned and there was no failure of justice in that case, and, therefore, without considering whether the High Court had the power to make an order of transfer in such situation, transferred the case for trial by the sessions court at Ahmadnagar. It was thus a case of transfer from a court which had no jurisdiction to the proper court. Nonetheless the order directed a transfer from a court which had no territorial jurisdiction. In the absence of any consideration of the points involved the decision is not of much assistance. 33. The discussion aforesaid makes it clear that the contrary view taken in the Full Bench case of A.I.R. 1960 Madras 64 (supra) there is no independent consideration on this point but reliance on the cases referred to above and in those cases also there is no independent discussion but one case has been relied on in another, and none of those contain any detailed discussion on the point. I am, therefore, unable to come to the view, with great respect to the learned Judges that the law laid down in the aforesaid Full Bench case •of Mad: as High Court is the correct law on the point. On the other hand I find myself in respectful agreement with the view expressed by the learned Judges who decided the Full Bench case in A.I.R. 1959 Kerala 53 (supra). A.I.R. 1956 Trav-Cochin 29 (supra) and A.I.R. 1954 Bombay 337 (supra). 34. There is another aspect of the matter which has to be considered. On the other hand I find myself in respectful agreement with the view expressed by the learned Judges who decided the Full Bench case in A.I.R. 1959 Kerala 53 (supra). A.I.R. 1956 Trav-Cochin 29 (supra) and A.I.R. 1954 Bombay 337 (supra). 34. There is another aspect of the matter which has to be considered. Sub-section (1) (a) of section 526 of the Code lays down that no application shall lie to the High Court for the exercise of its power under sub-section (1) for transferring any case from one criminal court to another in the carne sessions division unless an application for such transfer had been made to the Sessions Judge and rejected by him. So, it follows that if an application is made even for fictional transfer from one court having no jurisdiction to the same court, it ought to be made first before the Sessions Judge. The application would not lie before the High Court otherwise. Could the Sessions Judge make an order of transfer of this kind? I have, therefore, to go to section 528 of the Code Sub-section (IC) of section 528 enables a Sessions Judge to order "that any particular case be transferred from one criminal court to another criminal court in the same sessions divisions". It is obvious, therefore, that the Sessions Judge could not transfer one case from one court to the same court. Could it be the intention of the Legislature to lay down that the Sessions Judge would be moved for an order which he had no jurisdiction to make and could that be made a condition precedent to an application under section 526 of the Code? If an application is to lie in the High Court under section 526 (1) of the Code after its rejection by the Sessions Judge, it is quite obvious to me that both these sections must be read according to the well established principles of harmonious construction of statutes. Obviously, therefore, it could never have been the intention of the Legislature to enable the High Court to transfer one case from one court to the same court. If that were so, sub-section (IC) of section 526 would be absolutely meaningless and nugatory. 35. Obviously, therefore, it could never have been the intention of the Legislature to enable the High Court to transfer one case from one court to the same court. If that were so, sub-section (IC) of section 526 would be absolutely meaningless and nugatory. 35. There is another point which need not detain me long and that is could the Legislature have intended to enable the High Court to clothe a court with jurisdiction where it has none, by a direction otherwise than by a transfer of the case to the same court. In my view, there is no warrant for the proposition that the Legislature did intend this Specific provisions have been made in respect of orders by courts having no jurisdiction. We have already seen that section 529 of the Code provides for irregularities which do not vitiate the proceeding. They include orders passed before the commencement of the proceeding against the accused, of cognizance, the transfer of the case and various other matters. Section 531 of the Code specifically provides for cases where an enquiry, trial or other proceeding has taken place at a wrong place. Section 201 of the Code provides for the return of a complaint which has been filed before an improper court. Under different provisions of Chapter XLV of the Code, from sections 529 to 538, different kinds of irregularities have been made curable. Could it then be the intention of the Legislature without saying so in express words to empower the High Court to clothe a court with jurisdiction where it possesses none. I am unable to persuade myself to take the view that it was so intended. I have been unable to find any good reason given in any of the reported cases for taking the view that it was the intention of the Legislature or that it follows logically from the words of section 526 of the Code. In my view, this section does not enable the High Court nor does it purport to enable the High Court to clothe any court with jurisdiction where is has none from the beginning. It relates merely to transfer of a case and not to clothing a court with jurisdiction by a fictional transfer of a case from one court to the same court. It will be, in my view, doing violence to the language of the section and spirit lying behind it. 36. It relates merely to transfer of a case and not to clothing a court with jurisdiction by a fictional transfer of a case from one court to the same court. It will be, in my view, doing violence to the language of the section and spirit lying behind it. 36. Having considered the case in all its aspects I find that the petitioner in Criminal Miscellaneous 715 of 1972 is not entitled to get an order from this Court as prayed for. Her application is accordingly dismissed. 37. I have already held earlier that the impugned order against which the two applications bearing Criminal Miscellaneous Nos. 522 and 616 of 1972 are directed, cannot be sustained. In the result, I quash the impugned order with a direction that the Sub-divisional Magistrate of Sasaram will act under section 201 of the Code by returning the complaint for presentation to the proper court with an endorsement to that effect. These two applications are, therefore, allowed. Application allowed