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1979 DIGILAW 142 (KER)

DEEN v. JACOB

1979-07-11

S.K.KADER

body1979
Judgment :- This is an application filed under S.407 of the Code of Criminal Procedure corresponding to S.526 of the Old Code by the complainant in C. C. No. 13/78 now pending before the Chief Judicial Magistrate, Trichur, praying that the said case be transferred to the "1st Class Magistrate, Always for trial and disposal for the reasons stated in the accompanying affidavit". The petitioner filed the above said complaint against the respondents alleging that they committed offences punishable under Ss.77 and 78 of the Trade and Merchandise Marks Act, 1958. The respondents appeared and contested the ease. After examining a number of witnesses on either side, the case was posted for defence evidence. 2. The learned advocate appearing for the petitioner, submitted that it was at the fag end of the trial that the question of jurisdiction was raised by the respondents; that the prosecution has adduced the entire evidence in the case and the trial has reached almost completion and that in the circumstances it is expedient to meet the ends of justice that this Court should allow the prayer of the petitioner. 3. Opposing this petition on various grounds, the learned advocate appearing for the respondents submitted that there is absolutely no bona fides in this petition; that this has been filed to protract the proceedings; that this Court cannot be called upon to decide a question in issue before the trial court which that court has to decide on the evidence before it: that this is a case where the petitioner maintained and argued before the trial court that it has got jurisdiction to try the same and that none of the grounds mentioned in the affidavit is sufficient for a transfer of the case. 4. Before dealing with the contentions raised on either side it is necessary and desirable to refer to some of the admitted facts. The private complaint in question was filed on 23-1-1978 and the prosecution evidence was closed on 7-4-1979. Arguments were heard on 19-4-1979 and the case was posted for judgment to 24-4-1u79. On 20-4-1979 a petition was filed on behalf of the present petitioner stating that since the jurisdiction of the court was questioned, the complainant wants to move the High Court for transfer of the case to a court of competent jurisdiction and therefore a month's time may be granted for the said purpose. On 20-4-1979 a petition was filed on behalf of the present petitioner stating that since the jurisdiction of the court was questioned, the complainant wants to move the High Court for transfer of the case to a court of competent jurisdiction and therefore a month's time may be granted for the said purpose. This application was opposed by the respondents; but the court below granted time to the petitioner to file an application before this Court., The present petition was filed on 30-4-1979. 5. It. is not correct that the question of jurisdiction was raised for the first time only at the time of argument at the fag end of the trial. The counsel appearing for the respondents pointed out and it was not disputed that during cross-examination of Pw.1 the contention that the Chief Judicial Magistrate has no territorial jurisdiction to try this case was suggested to him. That shows that at the earliest point of time this question had been raised. The petitioner does not admit either in the petition and the accompanying affidavit filed before; this Court or at the time of argument that the Chief Judicial Magistrate, Trichur, has no territorial jurisdiction to try the case in question. There is dispute and keen contest on the point between the parties. This is therefore one of the points in issue between the parties to be decided by the trial court on the basis of the evidence on record before it. In short and in effect what the petitioner wants this Court to do is to resolve this dispute between the parties on this point by transferring the case to a competent court having territorial jurisdiction to receive and try it. The only ground alleged for the transfer of the case is that the defence questioned the jurisdiction of the trial court and that that court has no power to transfer the case to some other court outside the district. I do not think this is a proper or adequate ground under any of the clauses (a), (b) or (c) of sub-section (1) of S.407 of the Code of Criminal Procedure to transfer the case as prayed for. I do not think this is a proper or adequate ground under any of the clauses (a), (b) or (c) of sub-section (1) of S.407 of the Code of Criminal Procedure to transfer the case as prayed for. This Court also cannot go into the merits of the evidence on the point before the trial court and evaluate and appreciate the same in a petition like this and give a finding on the disputed jurisdiction of that court to try the case in question. That is essentially the function of a trial court which should not be interfered with by this Court in exercise of powers under S.407 of the Code of Criminal Procedure. S.346 of the Old Code corresponding to S.322 of the Code of 1973, which will hereinafter be called the New Code, has no application to a case where the court has no local or territorial jurisdiction to try it. The operation of this section was limited to cases where a Magistrate was not competent to try the cases having regard to column 8 of schedule 2 of the Old Code corresponding to clause (6) of Schedule 1 of the New Code or where the Magistrate appeared to be personally interested or where he was declared otherwise incompetent to deal with the cases (See Ss.556, 337, 482 and 487 of the Old Code respectively corresponding to Ss.474, 306,346 and 352 of the New Code). In cases of absence of territorial jurisdiction, the proper procedure to be adopted in a case falling under Chapter XV of the New Code is to act under S.201 of that Code. 6. The decision in Mohammad Abbus Aliv. IndraPrakashKapoor (AIR. 1965 Cal. 626) relied on by the counsel for the petitioner in support of his prayer for transfer has no application to the facts of the present case, This decision was rendered placing reliance on an earlier Division Bench ruling of that Court in Amarendra Nath v. Raghunath Nandan (AIR. 1952 Cal. 849). In Amarendra Nath's case, on the evidence before the court the trying magistrate expressed his view that he has no territorial jurisdiction to try the case. 1952 Cal. 849). In Amarendra Nath's case, on the evidence before the court the trying magistrate expressed his view that he has no territorial jurisdiction to try the case. Thereupon the complainant filed an application before the High Court praying that the High Court should exercise the powers under S.526 of the Old Code (S.407 of the New Code) and order the trying magistrate before whom the proceedings were pending to proceed with the trial. In Mohammad Abbus Ali's case, a complaint filed alleging commission of an offence under S.420 IPC. was being tried by the 1st Class Magistrate, Sealdah District. It was only at the fag end of the trial they; the complainant discovered want of territorial jurisdiction in the Magistrate who was trying the case. Immediately the complainant filed a petition praying that the High Court should direct the 1st Class Magistrate, Sealdah District under S.526(1)(e) of the Old Code (S.407(1) (c) of the New Code) to try the case himself although he has no territorial jurisdiction. Thus in the two Calcutta cases referred to above, the respective complainants therein alleged or admitted before the High Court that the Magistrates who were trying their cases had no local or territorial jurisdiction to try the offences involved in these cases. 7. In the case on hand, there is no prayer that this Court should direct or ask the Chief Judicial Magistrate, Trichur, to try the case himself. The petitioner does not allege or admit that the trying magistrate has no territorial jurisdiction or that he is incompetent to try this case. This is not a case where the trial magistrate expressed his view or was of opinion that he has no territorial jurisdiction to try the case. This apart, a transfer of a case can only be directed from a court having jurisdiction to receive and try it. 8. In Peary Lall Mozoomdar v. Komal Kishore Dassia (ILR. 6Cal. 30), a Division Bench held that they can under S.25 of the Code of Civil Procedure order transfer of a case only from a court having jurisdiction to receive and try it. In other words, a court of higher authority cannot make an order of transfer of a case unless the court from which the transfer is sought to be made has jurisdiction to receive and try it. In other words, a court of higher authority cannot make an order of transfer of a case unless the court from which the transfer is sought to be made has jurisdiction to receive and try it. What is essential in the maintenance of a suit is its due institution. In Ledgard v. Bull (ILR. 9 Alahabad 193 P.C.) the Privy Council entirely approved the judgment in Peary Lall Mozoomdar's case (ILR. 6 Cal. 30) and held that an order for the transfer of a suit from one court to another under S.25 of the Code of Civil Procedure cannot be made unless the suit has been instituted in a court having jurisdiction. No doubt it was transfer of a civil suit under S.25 CPC. that was considered in these two cases. 9. The question whether the rule laid down in Peary Lall Mozoomdar's case (ILR. 6 Cal. 30) can be applied to a criminal case came up for consideration in Queen Empress v. Mangal Tekchand (ILR. 10 Bombay 274). A Division Bench of the Bombay High Court held in this case that Peary Lall Mozoomdar v. Komal Kishore Dassia (ILR. 6 Cal.30) is an authority for holding that transfer of a case can only be directed "from a court having jurisdiction to receive and try it" and that this principle would apply also to criminal cases. A Division Bench of the Madras High Court consisting of Sundara Iyer and Spencer JJ. in Assistant Sessions Judge, North Arcot v. Ramammal ( (1913) ILR. 36 Madras 387) held that the High Court has no power to transfer a case which has been committed to a court which has no jurisdiction to try that case under S.177 of the Code of Criminal Procedure to another court having such jurisdiction In State v. Pyloth, (AIR 1956 Trav-Co. 29:1955 KLT. 756) a Division Bench of the erstwhile Travancore-Cochin High Court relying on the above decisions held that the High Court can transfer a case under the Code of Civil Procedure as well as under the Code of Criminal Procedure only from a court having jurisdiction to receive and try it and that the question of transfer of a case from a court which has no jurisdiction to receive and try it is purely a question of jurisdiction and not merely a matter of procedure. This decision was relied on by a Full Bench of this Court in State v. Pokker (AIR. 1959 Kerala 53). Recently S.24 of the Code of Civil Procedure has been amended by the Amendment Act 1976 conferring power to transfer a suit or proceeding from a court which has no jurisdiction to try it. There has been no corresponding amendment or change in S.526 of the Old Code or S.407 of the New Code. 10. In State v. Pokker (AIR. 1959 Kerala 53) the Full Bench held that under S.526 (1) of the Old Code (S.407 of the New Code) the High Court is competent to transfer a case only from a court having jurisdiction to receive and try it and that in a case of absence of territorial jurisdiction, what the Magistrate concerned should do is to act under S.201 of the Old Code (S.201 of the New Code), whatever be the stage the case has been reached, by returning the complaint to the party for presentation to the proper court having competent jurisdiction to receive and try it. It was also held that S.346(1) of the Old Code which corresponds to S.322 of the New Code, does not apply to cases of absence of territorial or local jurisdiction. Their Lordships in this case have referred to and discussed the decision in Amarendra Nath's case (AIR. 1952 Cal. 849) and were inclined to agree with the view of Somasundaram J. in Sowbagiammal v. Raphael (1954 Mad. W.N. 662) in preference to the view taken by the Calcutta High Court in the above decision. In the light of what is stated above, in law and on the facts, I do not find any ground to allow the prayer of the petitioner. This petition is therefore dismissed.