JUDGMENT - FACTS : - In pursuance of prior information and intelligence, the Customs Officers lay in wait for arrival of two trucks suspected to carry smuggled goods. Both the vehicles were intercepted and found to contain smuggled goods. Two separate complaints were lodged against the drivers and conductors of the trucks in the Court of the Chief Metropolitan Magistrate, Greater Bombay for offences under sections 135(1), (a) and 135(1), (b) read with section 135(1), (i), Customs Act. Both the complaints were lodged on the same day. All the articles in the two trucks were attached under a common Panchnama and witnesses in both the cases were common, the complainant also being the same. In routine course the complaints were made over for trial to the Additional Chief Metropolitan Magistrate 40th Court Girgaon Bombay. The two cases came to be numbered, as case No. 48 and case No. 130. The Additional Chief Metropolitan Magistrate took up case No. 48 for trial first. After trial the Magistrate acquittted the accused on the ground that they were mere carriers and no nexus with smuggled goods was established. The Magistrate also passed certain remarks regarding the perfunctory nature of the investigation and non-prosecution of the real culprits. As the second case viz. case No. 130 was being taken up for trial, the prosecution made an application to the Chief Metropolitan Magistrate for transfer of case No. 130 from the file of the Additional Chief Metropolitan Magistrate because the Magistrate had formed a particular view and the evidence in the two cases was common. After hearing the accused the Chief Metropolitan Magistrate held that it was a proper case for transfer and passed an order withdrawing case No. 130 from the file of the Additional Chief Metropolitan Magistrate and keeping it on his own file for trial. This order was challenged in revision before the High Court. It was contended that section 410, Criminal Procedure Code, 1973 did not deal with transfer as such and in any case envisaged transfer only on administrative and not on judicial grounds. KOTWAL V.S. J. : - After stating the facts and holding on merits that it was a proper case for transfer in paras. 1 to 15 the judgment proceeds :-s] 16. KOTWAL V.S. J. : - After stating the facts and holding on merits that it was a proper case for transfer in paras. 1 to 15 the judgment proceeds :-s] 16. This takes me to the next plank of the Petitioners contention relating to the powers of the Chief Metropolitan Magistrate vis-a-vis, the relevant provisions of the Code of Criminal Procedure. It is strenuously canvassed by Shri Mehta for the petitioners that there is no power vested in the Chief Metropolitan Magistrate under section 410 of the Code to transfer a case as such and the second submission is that under the said provision only on administrative ground a case can be withdrawn or recalled. In short, therefore, the two-fold submission is that no transfer application can be entertained and that the withdrawal or recalling of a case can be only on administrative grounds. The corollary of this submission is that if transfer is sought for on a judicial ground, as in the instant case, then the concerned party must move the Sessions Court and not the Chief Metropolitan Magistrate. 17. As against this, Shri Gupte for the Customs Officer and Shri Barday for the State have contended that there is no prohibition or restriction on the powers of the.Chief Metropolitan Magistrate to entertain a transfer application on merits not only on administrative grounds, but also on judicial grounds such, for example, as on the ground of prejudice. Both the learned counsel also submitted that the different phraseology has been purposely used in different provisions in that context, though the meaning and purport is the same. 18. At the threshold itself, it is necessary to have a resume of some of the relevant provisions of the Code. The new Code came into force on April 1, 1974. Certain provisions have been substantially amended whereas, some new provisions are inserted to suit the exigencies. A prominent change relates to switching over to three-tier system from two-tier system. Thus, in districts, the main forums were the Court of Judicial Magistrate and the Sessions Court, while in the metropolitan areas, it consisted of the Courts of the Metropolitan Magistrates(originally recognised as Presidency Magistrates) and High Court, though Sessions Court was not concerned with any orders passed by the Metropolitan Magistrates. Thus, in districts, the main forums were the Court of Judicial Magistrate and the Sessions Court, while in the metropolitan areas, it consisted of the Courts of the Metropolitan Magistrates(originally recognised as Presidency Magistrates) and High Court, though Sessions Court was not concerned with any orders passed by the Metropolitan Magistrates. By switching over to a three-tier System, a post of Chief Judicial Magistrate is created in districts, while Sessions Court in metropolitan areas is conferred with appellate powers with reference to the orders passed by the Metropolitan Magistrates. 19. The Code envisages under section 3 that any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to Chief Metropolitan Magistrate exercising jurisdiction in that area. Section 6 relates to constitution of Criminal Courts such as, Court of Session, Judicial Magistrate and Metropolitan Magistrate. Section 8 refers to the metropolitan area. Court of Session as per section 9 comprises of Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. Section 10 relates to the subordination of Assistant Sessions Judges. 20. We may then usefully refer to other provisions relating to Chief Judicial Magistrate and Chief Metropolitan Magistrate which would be quite germane to the proceeding. Thus, Chief Judicial Magistrate is appointed in every district under section 12. The same applies to the post of Additional Chief Judicial Magistrate. Correspondingly, Chief Metropolitan Magistrate is appointed under section 17(1) while Additional Chief Metropolitan Magistrate may be appointed under section 17(2). Section 15(1) contemplates that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. Correspondingly, section 19(1) contemplates that the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate. As regards the subordination of the Additional Chief Metropolitan Magistrate, powers are vested in the High Court under section 19(2) to define its extent. As regards the subordination of the Additional Chief Metropolitan Magistrate, powers are vested in the High Court under section 19(2) to define its extent. As indicated earlier, the High Court in exercise of these powers has directed that all Additional Chief Metropolitan Magistrates, Bombay, appointed under section 17(2) shall be subordinate to the Chief Metropolitan Magistrate and their subordination shall be deemed to be of the same kind and extent as the subordination of the Metropolitan Magistrate to the Chief Metropolitan Magistrate under section 19(1) 21. It is then stipulated under the scheme of the Code that the cases are to be filed in the Court of Chief Metropolitan Magistrate in metropolitan areas and in the Court of Chief Judicial Magistrate in districts and the said two Courts would allot or distribute the business. However, for convenience and practical working, cases are being filed directly in such Courts as are designated for each Police Station. This is, however, done in pursuance of the rules framed or directions issued by the said two officers. The power of making such rules or issuance of orders consistent with the Code as to the distribution of business among Judicial Magistrates subordinate to him, are conferred on Chief Judicial Magistrate under section 15(2) though subject to the provisions contained in section 14, while similar powers are conferred on the Chief Metropolitan Magistrate under section 19(3). Thus, it is directed by the High Court under its Circular dated 4/6th March 1974, that at District Headquarters, all criminal cases should be instituted in the Court of Chief Judicial Magistrate, who has to distribute or allot, the cases to different trial Courts, though in mofussil, the cases can be instituted directly in the concerned Magistrates Court. These provisions are relevant from another angle also, viz. the distribution of work flows from these two authorities. It is also significant that such power is obviously not vested in the concerned Sessions Court. 22. An examination of some other provisions relating to the powers of the Chief Judicial Magistrate in districts may also be useful in a comparative study for bringing on par the powers of Chief Judicial Magistrate being reflected in the legislative intent. Under section 35, Chief Judicial Magistrate has to decide as to the successor-in-office of Judicial Magistrate. 22. An examination of some other provisions relating to the powers of the Chief Judicial Magistrate in districts may also be useful in a comparative study for bringing on par the powers of Chief Judicial Magistrate being reflected in the legislative intent. Under section 35, Chief Judicial Magistrate has to decide as to the successor-in-office of Judicial Magistrate. Chief Judicial Magistrate can try a person below 16 years as the Presiding Judge of Juvenile Court under section 27, he can inflict sentence upto a term of seven years and impose unlimited fine, whereas, the Judicial Magistrate has limit upto three years and Rs. 1000, he can direct production of any article, parcel from postal or telegraph authorities under section 92; he can release under section 123(1) a person who is imprisoned on failure to give security; under section 191, he can transfer a case to the file of another Magistrate; he can make over any case under section 192(2) even after taking cognizance; he can transfer a case and try it himself under section 322. These are some of the provisions indicating the extent and dimensions of the powers vested in Chief Judicial Magistrate. 23. Important and relevant directions have been issued by High Court in exercise of its powers under section 17(2) of the Code that Additional Chief Metropolitan Magistrate shall exercise all the powers of the Chief Metropolitan Magistrate under the Code except the powers under section 19(3) and section 410. As stated, the first provisions relate to distribution of work to Metropolitan Magistrates, while the second provision relate to withdrawal or recalling of a case from the file of Metropolitan Magistrate. This, coupled with the extent of subordination as stated earlier, of the Additional Chief Metropolitan Magistrate with reference to Chief Metropolitan Magistrate would further point out that though for judicial functions and other powers, Additional Chief Metropolitan Magistrate may be on par with Chief Metropolitan Magistrate, yet, the power of allotment or distribution of business and powers to withdraw or recall cases is taken out of their iurisdiction. They are also deemed to be subordinate to Chief Metropolitan Magistrate to the same extent as that of Metropolitan Magistrate to Chief Metropolitan Magistrate, as per the directions issued by High Court, while defining the extent of subordination. This will have enormous bearing to the point involved in this proceeding. 24. They are also deemed to be subordinate to Chief Metropolitan Magistrate to the same extent as that of Metropolitan Magistrate to Chief Metropolitan Magistrate, as per the directions issued by High Court, while defining the extent of subordination. This will have enormous bearing to the point involved in this proceeding. 24. Armed with this resume of some of the relevant provisions, one may go direct to the main provisions relating to transfer of cases. Those are embraced by provisions contained in sections 406 to 412 and are clubbed together in one Chapter No. XXXI which is titled as Transfer of Criminal Cases. The clubbing of all these sections together under a common title is quite significant. The arrangement of sections denote the pattern or scheme underlying. As one ascends the ladder, it would be noticed that the powers in that behalf are conferred on District Magistrate, Chief Judicial Magistrate and Chief Metropolitan Magistrate, Sessions Judge, High Court and Supreme Court. Section 406 deals with the powers of the Supreme Court while section 407 deals with those of the High Court and then follow the powers of Sessions Court under section 408. Under the Old Code, section 528 was a composite one containing provisions relating to Sessions Judge, Chief Presidency Magistrate and District Magistrate. Under the New Code, this has now been split up and the relevant provisions are now contained in sections 408 to 411. However, there does not appear to be much difference in the basic structure. Section 410 which figures prominently in this controversy could be quoted to appreciate the real nature of the controversy : “Section 410(1):-Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. (2) Any Judicial Magistrate may recall any case made over by him under sub-section(2) of section 192 to any other Magistrate and may inquire into or try such case himself.” The Supreme Court can transfer a case or appeal from one High Court to another High Court and from one criminal Court to another criminal Court, whereas, the High Court can transfer a case or appeal from one criminal Court subordinate to its authority to any such criminal Court of equal or superior jurisdiction, or commit a case to the Court of Session or get the appeal transferred to itself for being disposed of. Likewise, Sessions Judge can transfer a case from one criminal Court to another criminal Court only in his Sessions Division. In so far as these three provisions are concerned, the act is denoted by the word transfer. In contrast to this, sections 409 and 410 do not employ the same word, but, instead use the word withdraw or recall. On the basis of this distinction, Shri Mehta submitted that section 410 does not contemplate a transfer as such or there was no difficulty for the Legislature to use the word transfer in that provision also. The other plank of his submission is that by the employment of the word withdrawal or recalling and non-employment of the word transfer, it is indicated that a case can be withdrawn or recalled by the Chief Metropolitan Magistrate only on administrative grounds. I am afraid, some of the subtleties and finer aspects are lost sight of and if the gloss is removed, then it would be clear that the distinction that is sought to be made is absolutely illusory. On the contrary, it would be clear that the employment of different terminology was necessary under the circumstances though the intent and purpose in both the cases is really the same. As stated earlier, a Sessions Court consists of the Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. Therefore, when it is contemplated under section 408(1) that the Sessions Judge can transfer a case from one criminal Court to another criminal Court in a Sessions Division, it would mean that the Sessions Judge would be referring to a case filed not in the Sessions Court but pending before the Magistrate. Therefore, when it is contemplated under section 408(1) that the Sessions Judge can transfer a case from one criminal Court to another criminal Court in a Sessions Division, it would mean that the Sessions Judge would be referring to a case filed not in the Sessions Court but pending before the Magistrate. Otherwise, if the Sessions Court comprises of the same three authorities, then it cannot transfer in that sense, a case from that file to another Sessions Court. In other words, when the section contemplates a case pending in the criminal Court, it would embrace* all the cases pending on the file of such Courts subordinate to the Sessions Court. There-fore, in that context, section 408 appears to have been enacted. It is true that a Court of Chief Judicial Magistrate would be covered by a criminal Court under section 408 and if that be so, a question is normally likely to be posed as to why it was necessary to have the same authority, namely, Chief Judicial Magistrate again included in section 409. However, the answer is not far to seek. Some cases even after commitment to the Court of Session, are found to be triable with equal jurisdiction and competence by Chief Judicial Magistrate, and therefore, the Sessions Judge may make over such a case to the file of the Chief Judicial Magistrate. It is such a case that can be withdrawn or recalled by the Sessions Judge under section 409. It also appears from section 381 that a Chief Judicial Magistrate is empowered to hear and dispose of an appeal arising out of an order passed by a Magistrate of the Second Class and sub-section(2) of section 381 also stipulates that Chief Judicial Magistrate can hear even such appeals as the Sessions Judge or the High Court makes over to him. Thus, a contingency of some appeals being heard by Chief Judicial Magistrate is in existence. It is in that context that under section 409, not only a case but an appeal is also indicated which could be disposed of by the Chief Judicial Magistrate. It is also worthnoting that criminal cases not triable by the Sessions Court but by the Magistrate are either in the Court of Chief Judicial Magistrate or are directly filed in the Court of the concerned Magistrate Judicial Magistrate or Metropolitan Magistrate. It is also worthnoting that criminal cases not triable by the Sessions Court but by the Magistrate are either in the Court of Chief Judicial Magistrate or are directly filed in the Court of the concerned Magistrate Judicial Magistrate or Metropolitan Magistrate. That means, the Sessions Judge himself does not make over any cases to the Judicial Magistrate or the Metropolitaa Magistrate. As in constrast to this, Sessions case on commitment always go to the file of the Sessions Judge and it is the Sessions Judge who thereafter makes over such cases either to the Additional Sessions Judge or the Assistant Sessions Judge. The same applies to criminal appeals filed in the Sessions Court. Therefore, it is in this context that the words in section 409 are used to mean that a Sessions Judge can withdraw or recall any case or appeal made over by him to the Additional Sessions Judge or the Assistant Sessions Judge. The only qualification being that in case of Additional Sessions Judge* the case or the appeal should not have commenced hearing. I have also observed earlier that under section 10, the Assistant Sessions Judges are subordinate to the Sessions Judge and the Sessions Judge has powers to make rules regarding distribution of business among the Assistant Sessions Judges. Therefore, in so far as the Sessions Court is concerned, the subordination clause is contained in section 10. It would thus be indicative of the fact that the user of the term withdrawal or recall is done whenever a regional distribution is made by the said authority. Thus, it is because the Sessions Judge makes over Sessions cases and appeals to the Assistant Sessions Judge that he gets a power to withdraw or recall the said cases or appeals. This could obviously not apply to such cases which are on the file of the Magistrate, inasmuch as, the criminal cases are not made over by the Sessions Judge to the Magistrate, as the cases are filed directly in the Court of the Magistrate. This has necessitated employment of the different terminology in sections 409 and 410 as against the earlier three sections. However, the effect of a transfer under section 408 and the withdrawal or recalling of a case under section 409 would be identical. This has necessitated employment of the different terminology in sections 409 and 410 as against the earlier three sections. However, the effect of a transfer under section 408 and the withdrawal or recalling of a case under section 409 would be identical. In effect, the case cannot be transferred by the Sessions Judge under section 409 because it is originally not filed in that particular Court. It has got to be withdrawn or recalled because it is that very authority which has already made over that case in that Court. It is also worth-noting that after withdrawal or recalling of such a case or appeal, the Sessions Judge is empowered under section 409(3) either to make it over to the other Judge that is, Assistant Sessions Judge or the Additional Sessions Judge or to try to hear the matter himself. This is again in contrast to the provisions contained in section 408, inasmuch as, a Sessions Judge after directing transfer of a case from one criminal Court to another criminal Court, obviously, has no jurisdiction to hear that case himself, inasmuch as, the said case is only triable by a Judicial or Metropolitan Magistrate. This is another reason for employment of different phraseology, which is different only in letter but not in meaning. 25. This consideration and analogy will apply with equal force to the provisions contained in section 410. Under section 15, every Judicial Magistrate subject to the general control of the Sessions Judge, is subordinate to the Chief Judicial Magistrate and correspondingly, under section 19, every Metropolitan Magistrate subject to the general control of the Sessions Judge, is subordinate to the Chief Metropolitan Magistrate. Under the direction referred to above issued by the High Court in exercise of the powers under section 19(2), the Additional Chief Metropolitan Magistrates are also deemed to be subordinate to the Chief Metropolitan Magistrate. I have also indicated that by reason of the said direction referred to earlier, an Additional Chief Metropolitan Magistrate cannot exercise powers under section 19(3) and section 410 of the Code. It would thus be clear that sub-ordination even of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate is defined and the limitation of the powers are also defined. Powers under section 410 are totally taken out of the purview of the Additional Chief Metropolitan Magistrates. It would thus be clear that sub-ordination even of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate is defined and the limitation of the powers are also defined. Powers under section 410 are totally taken out of the purview of the Additional Chief Metropolitan Magistrates. Under section 15(2), the Chief Judicial Magistrate can distribute the business and for that purposes make the rules consistent with the Code and correspondingly, under section 19(3), the Chief Metropolitan Magistrate can make rules regarding such distribution of business to Metropolitan Magistrates including Additional Chief Metropolitan Magistrate. This power is also vested exclusively in Chief Metropolitan Magistrate under the said direction. The combined effect of these provisions would be that in district, the Chief Judicial Magistrate and in metropolitan area, the Chief Metropolitan Magistrate uld be distributing various cases to the Judicial Magistrates and Metropolitan Magistrates including the Additional Chief Metropolitan Magistrates. The subordination of the Magistrates including Additional Chief Metropolitan Magistrates to the Chief Judicial Magistrate and Chief Metropolitan Magistrate is also apparent. Therefore, it would further be manifest that, in as-much as, the Chief Judicial Magistrate and Chief Metropolitan Magistrate have the initial or the basic power or authority to make over certain cases to the Judicial Magistrates or the Metropolitan Magistrates including the Additional Chief Metropolitan Magistrates, they ipso facto and logically should get power to withdraw those cases which they have already made over. It is in this context that the word withdraw or recall has been employed in section 410. It is also clear that such a case can be tried by the Chief Judicial Magistrate or Chief Metropolitan Magistrate himself or can be made over to another Magistrate for disposal. As indicated earlier, if a case is removed from the file of a Magistrate by the Sessions Court, then, it cannot take the case itself for trial and therefore, it has got to transfer the case to some other Magistrate. This is obviously not the case of the said two upper Magistrates. Therefore, from that point of view also, though they can be said to withdraw or recall the case, the effect would be the same. Even prima facie also, there is no scope for adopting the inference which is sought to be done by the petitioners learned counsel that section 410 envisages only an administrative function. Therefore, from that point of view also, though they can be said to withdraw or recall the case, the effect would be the same. Even prima facie also, there is no scope for adopting the inference which is sought to be done by the petitioners learned counsel that section 410 envisages only an administrative function. A plain reading of the section does not admit of such an interpretation and casts no prohibition or restriction on the powers of the concerned authority. In view of the subordination and power of distribution and other control by the Chief Judicial Magistrate and Chief Metropolitan Magistrate over the Magistrates, it would be in the fitness of things that they have an authority to examine the case for the proposed withdrawal or recalling of the case. As the making over of the case flows from such authority, the withdrawal also must be embraced by that authority. It is true that in the earlier three sections, it has been indicated that the Court can be approached either by the concerned party or on the basis of the report of the lower Court or even the Court can have suo motu action and this has not been specifically mentioned in section 410. However, the said omission is of no consequence, inasmuch as, it is basic that a Court can be moved by any agency and the aggrieved party always has a right to move the concerned Court for withdrawal of the case. Just as that, even the lower Court itself can approach the Chief Metropolitan Magistrate with a request to recall the case if it deems proper and lastly, the Chief Metropolitan Magistrate obviously can take a suo motu action if it is made to appear to him necessary through any source. It is then equally true that the provisions contained in sub-clauses(3) to(7) and(9) of section 407 though made applicable to section 408, have no reference to section 410. However, that also would hardly make any difference, inasmuch as, those sub-clauses deal with the procedure and these are the steps for the disposal of the application on merits. It is then equally true that the provisions contained in sub-clauses(3) to(7) and(9) of section 407 though made applicable to section 408, have no reference to section 410. However, that also would hardly make any difference, inasmuch as, those sub-clauses deal with the procedure and these are the steps for the disposal of the application on merits. It is again a basic principle that if an order is to be passed against a party, then, that party should be heard before-hand and therefore, even in the absence of any specific provision in section 410, a notice can be issued to the concerned party on the ground of principles of natural justice. 26. The same considerations would apply to the powers of the District Magistrate contained in section 411 while dealing with the cases pending on the file of the concerned Executive Magistrate. 27. Section 412 gives some clue about the judicial nature of the powers contained in section 410. The said section stipulates that while passing an order under sections 409, 410 and 411, the Judge or the Magistrate shall record his reasons for making the same. Assigning of reasons is the basic foundation of any judicial order. Thus, for instance, if a case is to be withdrawn purely on administrative ground, such as, when a Court is over-flooded with cases and requires some relief, then, a cryptic order of with- drawal of the case purely on administrative ground can be made and the same can be valid even if it is not accompanied by reasonings. However, if an order on judicial ground is passed, such as, the party contending that the learned Magistrate may have pre-judged the issue or some allied considerations are canvassed, then, if an order of withdrawal is made without assigning any reasons, it would fail to become valid. Therefore, the necessity of assignment of reasons is another indication about the nature of orders that can be passed under section 410 which thus can be administrative as well as judicial. 28. I have discussed earlier the various powers vested in the Chief Judicial Magistrate and the Chief Metropolitan Magistrate. Under section 191, a Chief Judicial Magistrate can transfer a case in certain circum-stances to another Magistrate. 28. I have discussed earlier the various powers vested in the Chief Judicial Magistrate and the Chief Metropolitan Magistrate. Under section 191, a Chief Judicial Magistrate can transfer a case in certain circum-stances to another Magistrate. Under section 10, in the absence of the Sessions Judge, the Additional Sessions Judge or the Assistant Sessions Judge can hear and dispose of an urgent application and in the eventuality of their being no Additional or Assistant Sessions Judge, then, the Chief Judicial Magistrate can dispose of such an urgent application. This would also indicate the magnitude of the powers vested in the Chief Judicial Magistrate. I have deliberately projected some prominent features of the powers of Chief Judicial Magistrate while dealing with the powers of Chief Metropolitan Magistrate, as under section 3 of the Code, any reference to Chief Judicial Magistrate shall be construed to refer to Chief Magistrate in metropolitan area, and there is a clear mention of Chief Judicial Magistrate in the provisions contained in section 410 of the Code. The comparative study has thus become necessary and inevitable. 29. It is also to be noted that the idea of enacting a three-tier system is mainly for the purpose of reducing the pressure or load on the Sessions Court and therefore, in districts, the Chief Judicial Magistrate is clothed with certain powers in that context. In the metropolitan area, a similar power is conferred on the Chief Metropolitan Magistrate, so that, the burden on the Sessions Court can be reduced to some extent. It is also rightly contended by Shri Barday and Shri Gupte that before the amendment of 1973 to the Code, for years together a practice was being followed of moving the Chief Metropolitan Magistrate(Chief Presidency Magistrate as he was then called), to hear and dispose of the regular transfer applications under section 528(2) of the Old Code, corresponding to section 410 of the New Code. The idea appears to be that in a metropolitan area where there is a vast field of litigation, a litigant need not be driven to approach previously the High Court:- as it was the only other forum then:-and at present, the Sessions Court in the first instance, by way of transfer application, which would be expensive as well as time consuming and therefore, the Legislature thought that such a remedy should be within the reach of an ordinary litigant and for that purpose, it must have been contemplated that a litigant can move even the Chief Metropolitan Magistrate by a regular transfer application. From that point of view also, the contentions raised on behalf of the prosecution, will have to be upheld. Shri Gupte also rightly submitted that in the metropolitan area, the Chief Metropolitan Magistrate hears the appeals arising out of the orders passed by the Juvenile Courts. This would also indicate the dimensions of the powers conterred on the Chief Metropolitan Magistrate. 30. Having considered all these aspects in proper perspective, I am of the opinion that the Chief Judicial Magistrate in a district and the Chief Metropolitan Magistrate in a metropolitan area, are empowered under section 410 to entertain an application not only on the administrative ground but also on the judicial ground and the employment of the phraseology withdraw or recall hardly makes any difference and in the import and meaning, it is almost identical with the terms transfer. In this view of the matter, the learned Chief Metropolitan Magistrate, Esplanade, had ample powers to get the said case withdrawn from the file of the 40th Court to his own file. I, therefore, fully agree and concur with the reasons assigned by the learned Chief Metropolitan Magistrate in support of his order, though, I have elaborated the said features in more details, inasmuch as, the matter was canvassed in equal details. 31. Reliance was placed on behalf of the State by Shri Bardey who is joined with equal emphasis by Shri Gupte, on certain authorities, which how- ever, do not answer directly the question posed by Shri Mehta. 31. Reliance was placed on behalf of the State by Shri Bardey who is joined with equal emphasis by Shri Gupte, on certain authorities, which how- ever, do not answer directly the question posed by Shri Mehta. It is, how- ever, significant to note that in most of the cases cited, though the point involved was slightly different, yet, the Court proceeded on the footing that the Chief Metropolitan Magistrate or the District Magistate:-as the case may be:-had jurisdiction and powers to transfer a case from one Court to another not purely on administrative ground, but also on a judicial ground. 32. Thus, in(Fakira v. Goma)1. 37 Cr. L.J.. 1936. 2. A.I.R. 1929 All 932. the power vested in the District Magistrate to transfer a case under section 528 of the Code was accepted, though the decision related to the issuance of a notice to the opposite party. Same ratio is available in(Jageshwar v. Emperor)2.A.I.R. 1929 All 932. In Mohini Mohan Roy v.(Punam Chand Sethica)3(1924)1 L.R. 51 Cal. 820, it was accepted that Chief Presidency Magistrate could law- fully withdraw a case made over to a Presidency Magistrate. In(Mst. Kamni Begum v. Emperor)4. A.I.R. 1938 All. 517., transfer by District Magistrate under section 528 was held to be permissible, though issuance of notice was said to be advisable. It was also held therein that anyone could bring to the notice of the District Magistrate the facts requiring transfer of a case. This is notwithstanding the fact that section 528 relating to the powers of the District Magistrate, does not explicitly indicate the mode by which the authority can be approach- ed. It is equally worth-nothing that in many of these and other cases, the transfer was made either by District Magistrate or Chief Presidency Magistrate not on an administrative ground only, but on a judicial ground as well, and the same has not been disturbed on the ground that both these authorities had no such power. However, inasmuch as, these and other authorities have no direct bearing on the point involved, though inferentially those are certainly relevant, no further discussion in that respect is necessary. 33. However, reliance is rightly placed on the ratio of a decision of this Court in Re :(P. D. Shamdasani)5. 32B.L.R.1128.Despite the fact that the point raised therein was slightly in different context, yet, the same can be usefully considered in the instant case. 33. However, reliance is rightly placed on the ratio of a decision of this Court in Re :(P. D. Shamdasani)5. 32B.L.R.1128.Despite the fact that the point raised therein was slightly in different context, yet, the same can be usefully considered in the instant case. In the said case, the party aggrieved had moved this Court by way of a transfer application, presumably under section 526(8) of the Code. It was mainly canvassed while opposing the application that the petitioner ought to have moved the Chief Presidency Magistrate first before approaching the High Court and hence, it was con- tended that the application need not be entertained on that count alone. Repelling that objection, this Court held that the petitioner had a right to approach this Court, notwithstanding his right to approach the Chief Presidency Magistrate first. Thus, it was held that normally one should approach the Chief Presidency Magistrate in the first instance and not this Court directly, though there was no legal impediment or prohibition on such direct approach to the High Court, inasmuch as, both the authorities had jurisdiction and power to entertain such application and decide it on merits. It is, thus, manifest that the power of Chief Presidency Magistrate(and at present Chief Metropolitan Magistrate) to decide an application for transfer-ring a case by withdrawing it and making it over to some other Court, is implicit in the observations and ratio of that case. It is further clear that transfer was asked for not on any administrative ground, but on a judicial ground. This is further clear from the fact that there would have been no question of filing a transfer application to this Court if it was being sought for only an administrative ground. On facts and the nature of allegations in the application, this position is clear. Therefore, the ratio of this case, to some extent at least, reinforces my conclusion. It is with interest that can be incidentally observed that it is indicated in the said case that it has been a long-standing practice prevailing for years in the metropolitan area of Greater Bombay that a party has to move the Chief Presidency Magistrate requesting for a transfer of a criminal case. This has its own relevance. 34. Shri Mehta for the petitioners canvassed another contention about the maintainability of an application for transfer at the instance of the State. This has its own relevance. 34. Shri Mehta for the petitioners canvassed another contention about the maintainability of an application for transfer at the instance of the State. In effect, the learned counsel agitated that it is not permissible for the State and as such, for that matter, for the Customs officials to move for transfer of a case. He has presumably based this contention on the premise that the State is in itself the machinery initiating prosecution in a Court of law, can- not have a grievance about the forum, and further, the State can normally have no grievance against any Court. For that purpose, reliance is placed on State of(U. P. v. Ram Bahaddur Singh)6 A.I.R. 1957 All 278. Therein, a question was posed whether the State can file a transfer-application under section 526 of the Code. However, significantly the question posed remained unanswered. The discussion mostly applied to the question as to who would be the proper person to make an affidavit in support of the application on behalf of the State. The judgment then proceeds to consider other points on merits. This decision, therefore, is of no assistance to the learned counsel in support of the view propagated by him. In(State v. Ram Sia)7,A.I.R. 1950 All. 727. a similar question was posed and answered in the affirmative that the State can file a transfer application, but was qualified by cautioning that the State should be slow. It is obvious that the State is one of the vital parties to the proceeding and as such, it has got to be vigilant in protecting the intwest of justice and its own-self, as also to ensure fair administration of justice. The State obviously cannot be denied such a right to agitate when it is warranted on merits, though normally it would be slow and would not resort to the extreme step unless so driven by compelling reasons. There is thus no merit in the said submission. 35. In view of this, the order passed by the learned Chief etropolitan Magistrate deserves to be upheld on the question of law as also of fact. There is thus no merit in the said submission. 35. In view of this, the order passed by the learned Chief etropolitan Magistrate deserves to be upheld on the question of law as also of fact. I may, however, hasten to add that there is another tinge to this aspect, in that, when this Court is now seized of the matter and thus, it is made to appear to this Court by whatsoever agency, this Court independently under section 407 can record a regular order of transfer. There are no fetters on the discretion and powers of this Court, especially when, this Court is empowered to transfer a matter suo motu. Therefore, viewed from this angle, even under section 407 treating this as an independent proceeding, 1 am inclined to transfer the case from the file of the 40th Court to the file of Chief Metropolitan Magistrate. However, as I am upholding the order of the Court below, this shall be a matter of secondary importance. [Rest of the judgment is not material for the Report. Rule discharged. -----