PREM NARAIN SINGH v. RAMRAJ SINGH — 1990 DIGILAW 421 (ALL)

K. K. BIRLA, J. ( 1 ) THIS revision has been preferred against the revisional order dated 13. 4. 1988 passed by the V. Addi. Sessions Judge, Fatehpur Setting aside the order dated 19-11-1987 of the CJ. M. Fatehpur regarding the release of a Tractor. ( 2 ) THE relevant facts necessary for the decision of this revision may be narrated that the Tractor No. V. R. S. 1887 was seized by the Police of P. S. Dhata, District Fatehpur. Sri Prem Narain Singh, the present revisionist (Hereinafter referred as the revisionist) moved to the Magistrate Khaga for the release of the Tractor. He moved an application before the C. J. M. for transfer of the case from that Court. The C. J. M. withdrew that case to his own Court vide order dated 6th November, 1987. On 19-11-1987 he ordered the release of the Tractor in favour of the revisionist. Sri Ramraj Singh the present opposite party preferred a revision against that order. One of the contentions raised before the learned Add!. Sessions Judge was that the case had not been made over to the Munsifmagistrate Khaga, by the Chief Judicial Magistrate and as such he had no power to with draw the case and the order passed by the Munsiff Magistrate was without jurisdiction and nullity, The learned Addi. Sessions Judge accepted his contention. It was contended on behalf of Sri Prem Narain Singh before the learned Addi. Sessions Judge that the revision was not against the withdrawal of the case but against the final order. The learned Addi. Sessions Judge was of the opinion that the C. J. M. had no power to withdraw the case, hence proceedings conducted by him had become illegal in the eye of law and as such the impugned order was bad. He set-aside the Magistrates order and remanded the case to the Munsiff - Magistrate Khaga. Being aggrieved, Sri Prem Narain Singh has preferred this revision. ( 3 ) I have heard the learned Counsel for the parties and perused the records. ( 4 ) THE learned Counsel for the revisionist has contended that under section 410 Cr. P. C. . He set-aside the Magistrates order and remanded the case to the Munsiff - Magistrate Khaga. Being aggrieved, Sri Prem Narain Singh has preferred this revision. ( 3 ) I have heard the learned Counsel for the parties and perused the records. ( 4 ) THE learned Counsel for the revisionist has contended that under section 410 Cr. P. C. . the Chief Judicial Magistrate has power to withdraw any case from the record of the Judicial Magistrate and may also try the same and that the respondent did not challenge the order of withdrawal of the case, participated in the proceedings before the Chief Judicial Magistrate and therefore, the revision should not have been decided on this point. According to the revisionist the merits of the case should have been considered by the Addi. Sessions Judge. Section 410 Cr. P. C. . reads as under: 410. TI Withdrawal of cases by Judicial Magistrates. (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 Subsection (2) of Section 192 to any other Magistrate and may inquire into or try such case himself. It is contended by the learned counsel for the revisionist that the findings of we Addi. Sessions Judge that only those cases may be withdrawn by the Chief Judicial Magistrate from the Magistrate which have been made over by him (the Chief Judicial Magistrate) to the Magistrate is against express provisions of Section 410 Cr. P. C. I find much force in this contention. ( 5 ) SECTION 410 Cr. P. C. contemplates two situations; - firstly withdrawal of cases and secondly the recall of cases by the Chief Judicial Magistrate. The insertion of, (Coma) after the words case from and before the words or recall and the absence of coma after the words recall any case clearly goes to show that the words which he has made over to governs the words: or recall any case and not to earlier part of the Section of the words withdraw any case from. Therefore, in my opinion under this section the Chief Judicial Magistrate is empowered to withdraw any case from any Magistrate subordinate to him and he is also empowered to recall any case which he has made over to any Magistrate. The authentic Hindi version of this Section 410 (1) Cr. P. C. .) given in diglot edition by the Central Government is as follows (1) KOI MUKHYA NYAYIK MAGISTRA TE UPNE KISI MAGISTRATE SE KISI MAMLE KO VAPAS LE SAKTA HAl YA KISI MAMLE KO JISE USNE AISE MAGISTRATE KE HAWALE KIYA HAl VAPAS MANGA SAKTA HAl AUR MAMLE KI JANCH YA VICHAR SWAYAM KAR SAKTA HAl YA USE JANCH YA VICHARAN KELIYE KISI ANYA AISE MAGISTRATE KO NIRDESHIT KARSAKTA HAl JO USKI JANCH YA VICHARAN KARNE KELIYE SAKSHAM HAl. ( 6 ) THE reading of this version also clearly goes to show that the Chief Judicial Magistrate is empowered to withdraw any case from any Magistrate subordinate to him. Therefore, it is not justified to read this Section as empowering the Chief Judicial Magistrate to withdraw only such cases which have been made over by him to any Magistrate. The scheme of the act also points-out to the same. Under Section 15 Cr. P. C. 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. The Chief Judicial Magistrate may, from time to time make rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him. ( 7 ) THUS there is general subordination of the Judicial Magistrates to the Chief Judicial Magistrate who is also empowered to make orders as to the distribution of business among the Judicial Magistrates. Section 20 Cr. P. C. provides for the appointment of the Executive Magistrates including the District Magistrate. Under Section 23 Cr. P. C. the District Magistrate has also been given the similar powers with regard to the Executive Magistrates including the power as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate. Under section 410 Cr. P. C. the power of the Chief Judicial Magistrate regarding transfer is given. Under section 410 Cr. P. C. the power of the Chief Judicial Magistrate regarding transfer is given. The similar power with respect to the Executive Magistrate has been given to the District Magistrate or the S. D. M. u/s 411 Cr. P. C. The Sessions Judge is the head of the administration of Criminal Justice in the district. Section 408 Cr. P. C. provides for general power regarding transfer of any case from one Criminal Court to another Criminal Court in the Sessions division by the Sessions Judge but under section 409 Cr. P. C. he has been given the power regarding withdrawal of the cases from the court of Assistant Sessions Judge or other Chief Judicial Magistrate who are subordinate to him. The power conferred under section 410 Cr. P. C. with regard to the Judicial Magistrates is analogous to the power conferred under section 409 Cr. P. C. to the Sessions Judge with regard to the Assistant Sessions Judge or the Chief Judicial Magistrate. From the above scheme of the Court, it is clear that under sections 409, 410 and 411 Cr. P. C. the powers of transfer in the conditions given in those sections have been given to the Sessions Judge, Chief Judicial Magistrate, the District Magistrate or the S. D. M. respectively. Over and above the power given in Section 409 Cr. P. C. the Sessions Judge has been given the power of transfer with regard to all the Criminal Courts whether they are all Judicial Magistrates or the Executive Magistrates. Therefore, while interpreting Section 410 Cr. P. C. it will not be proper to seek the help of Section 408 Cr. P. C. so to say that as the Sessions Judge has already been given general power of transfer, the power of the Chief Judicial Magistrate is only limited to those cases which have been made over by him to the Judicial Magistrates. ( 8 ) SECTION 190 Cr. P. C. provides for the taking of the cognizance by the Magistrate. Section 192 (2) Cr. P. C. provides that any Chief Judicial Magistrate may, after taking cognizance of an offence make over the case for inquiry or trial to any competent Magistrate subordinate to him. The latter part of Section 410 Cr. ( 8 ) SECTION 190 Cr. P. C. provides for the taking of the cognizance by the Magistrate. Section 192 (2) Cr. P. C. provides that any Chief Judicial Magistrate may, after taking cognizance of an offence make over the case for inquiry or trial to any competent Magistrate subordinate to him. The latter part of Section 410 Cr. P. C. contemplates about the transfer of such cases by providing or recall any case which he has made over to any Magistrate subordinate to him. In the first part of the section may withdraw any case from provides for the general power of transfer to the Chief. Judicial Magistrate regarding transfer of any case from one Magistrate to another Magistrates who are subordinate to him. As already discussed above this general power has been given to the Chief Judicial Magistrate with regard to the Judicial Magistrates who are subordinate to him and over whom he exercise general power of supervision and control. At the point of repetition it may be stated again that such powers have also been given to the Sessions Judge with regard to the Assistant Sessions Judge and the Chief Judicial Magistrate and to the District Magistrate with the regard to the Executive Magistrate. Therefore, in my opinion under section 410 Cr. P. C. the Chief, Judicial Magistrate has the power to withdraw any case from any Magistrate subordinate to him even though such case has not been made over by him to such Magistrate. ( 9 ) THE learned counsel for the respondent has referred to the case of Din a Nath Misra versus Fatingan Criminal Misc. Appeal No. 6255/1984 decided on 11th September, 1984 by a Single Judge of this Court. . It is reported in the summary of Cases of 1985 (22) A. C. C. at page 17 (Case No. 16 ). In this case it has been held that this provision (410 Cr. P. C.) confers power upon a Chief Judicial Magistrate to withdraw or recall any case in a limitated situation. He can exercise such powers only in those cases which he has made over to any Magistrate subordinate to, him. His jurisdiction to do so is confined only to those cases which he has made over to any Magistrate subordinate to him. It appears that the authentic Hindi version of Section 410 Cr. He can exercise such powers only in those cases which he has made over to any Magistrate subordinate to, him. His jurisdiction to do so is confined only to those cases which he has made over to any Magistrate subordinate to him. It appears that the authentic Hindi version of Section 410 Cr. P. C. which gives an idea about the intention of the parliament for enacting, this provision had not been brought to the notice of Honble S. K. Dhaon, J. ( 10 ) MOREOVER, if the power of transfer was to be limited to the cases made over by the Chief Judicial Magistrate, then the words recall any case which has were sufficient. It was not necessary to incorporate the words withdraw any case from in the section. No such interpretation will be proper which makes some words or a particular clause redundant. That interpretation should be preferred which puts purpose to every part of the section. ( 11 ) IN view of the discussions made above, I am in respectful disagreement with the observations made in the above case of Sri Dma Nath Misra v. Fatingan (supra ). When there is a difference of Opinion With the view taken in earlier decision, the matter should normally be referred to a larger Bench. The summary of cases reported in 1985 (22) A. C. C. page 16 did not give the full facts of the case, nor it contained the full report of the decision or the point involved in that case. The original record of this case was, therefore, summoned and perused. ( 12 ) IT has been contended by the learned counsel for the revisionist that the interpretation of Section 410 Cr. P. C. was not involved in that case. It was the legality of the transfer order made by the Sessions Judge under section 408 Cr. P. C. which was challenged by the revisionist and negatived by the Court. After seeing the facts of the case, the learned counsel for the Opposite party has also agreed that the observations regarding the interpretation of Section 410 Cr. P. C. in the above reported case are by way of obiter-dicta. In my opinion, this contention is correct. In the above cited case the legality of the order dated 16. 7. 1984 passed by the Sessions Judge, Ballia transferring the Criminal Case from the court of 7th Addi. P. C. in the above reported case are by way of obiter-dicta. In my opinion, this contention is correct. In the above cited case the legality of the order dated 16. 7. 1984 passed by the Sessions Judge, Ballia transferring the Criminal Case from the court of 7th Addi. Munsif Magistrate to the Court of 6th Addi. Munsif Magistrate was challenged and it was contended that the transfer order being illegal, the 6th Addi. Munsif Magistrate did not have the jurisdiction to pass any order 10 the matter including the issue of Non-bailable warrant of arrest. The court found that therefore, in the order dated 16. 7. 1984 passed by the learned Sessions Judge transferring the case there was no lack of jurisdiction. The court further found that the order of issue of Non-bailable warrant of arrest was perfectly within the jurisdiction of the court of Addi. Munsif Magistrate. There was no order under section 410 Cr. P. C. passed by the judicial Magistrate hence there was no occasion to consider its validity or otherwise. Therefore, the contention of the learned counsel for the opposite party that the observations made in the above cited case regarding Section 410 Cr. P. C. are by way of obiterdicta should be accepted and no reference is made to a larger Bench. ( 13 ) IN view of the discussions made above, the chief Judicial Magistrate was perfectly within his jurisdiction to withdraw the case and to decide the same. Therefore, the order passed by the Chief judicial Magistrate does not suffer from any lack of jurisdiction. Therefore, the findings of the Addi. Sessions Judge in this regard cannot be maintained and the revision deserves to be allowed to that extent. However, the learned Addi. Sessions Judge has not considered the case on merits so far as the release of the tractor in question was concerned and the case will have to be remanded for the same. It is accordingly, ordered that the revision is partly allowed. The impugned order of the Addi. Sessions Judge, Fatehpur is quashed. The case is remanded to his Court for deciding the matter afresh on merits in accordance with law and with due advertance to the observations made above. Revision partly allowed .