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2000 DIGILAW 550 (ORI)

MANJULATA BEHERA v. RAMESH CHANDAR BEHERA

2000-12-07

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - The informant in G.R. Case No. 657 of 1997 has filed this application seeking the relief of transfer of the said G.R. Case from the Court of J.M.F.C., Basudevpur to any other competent Court at Bhadrak, Baripada or Balasore. From the cause title, it appears that she is a resident of Baripada. The two accused persons are the opposite party Nos. 1 and 2 in this case. The opposite party No. 1 is the husband of the Petitioner and the opposite party No. 2 is her father-in-law. 2. Initially, the case was pending in the Court of S.D.J.M., Bhadrak who took cognizance of the offence and after appearance of the accused persons proceeded with the trial. On 1.2.2000 an application u/s 410, Code of Criminal Procedure was moved by opposite party No. 1 praying for transfer of the case from the file of the S.D.J.M. on the ground of losing confidence with the Presiding Officer for making a comment on the lawyer at the time of cross-examination of the present Petitioner who was being examined as P.W. No. 5. In that respect, on being asked by this Court, the Chief Judicial Magistrate (in shor 'C.J.M.') has submitted a report explaining the circumstance under which he passed the administrative order for transfer of the case from the Court of S.D.J.M., Bhadrak to the Court of J.M.F.C. at that station. 3. No doubt, Section 410, Code of Criminal Procedure invests a very wide power with the C.J.M. for withdrawal of any case from any Court subordinate to him and to make over any case to any such Court or Magistrate. That power is invested with the C.J.M. with a view to see that the criminal justice system functions in a proper and better manner in the courts of magistrates. A bare perusal of the provision in Section 410, Code of Criminal Procedure makes it clear that the power and jurisdiction provided therein is dominantly administrative in nature because Sub-section (1) of Section 410 authorises the C.J.M. to withdraw any case from any Magistrate subordinate to him or to recall any case which he has made over to any Magistrate subordinate to him for the purpose of inquiry or trial, as the case may be, by himself or by any other Magistrate having the competency (power and jurisdiction) to enquire into or try such cases. Sub-section (2) of Section 410, empowers the cognizance-taking Magistrate to recall any case made over by him to any other Magistrate for the purpose of inquiry or trial, as the case may be, by himself. Section 410 does not require any applications to be made before the Magistrate for exercise of such power either by the C.J.M. or by the cognizance-taking Judicial Magistrate. 4. Section 410 has its berth in Chapter XXXI in the Code of Criminal Procedure, 1973. That Chapter retains within it Sections 406 to 412. Section 406 Provides for the judicial and administrative power of the Supreme Court relating to transfer of cases and appeals etc. Section 407 similarly provides for transfer and withdrawal of cases and appeals etc. by the High Courts from subordinate Courts thereof. Section 408 invests the judicial power as well as the administrative power with the Sessions Judge to transfer cases and appeals from one criminal Court to another in his Sessions Division. Sub-section (2) of Section 408 provides that to exercise such power, Sessions Judge may act either on the report of the lower Court or on the application of a party interested or on his own initiation, Sub-section (1) of Section 409, provides for withdrawal of a case or appeal from the Court of Assistant Sessions Judge or C.J. Ms. an Sub-section (2) empowers the Sessions Judge to recall a case or appeal from the file of the Additional Sessions Judge before commencement of the trial or hearing of the case and appeal as the case may be. After withdrawal or recall of such case or appeal, the Sessions Judge may either try the case or hear the appeal or may make it over to another Court in accordance with law. As already noted, Section 410 authorises the C.J.M. and the cognizance-taking Magistrates for withdrawal of cases and the C.J.M., having the additional power, i.e. the option either to retain with him or to refer the case to any other Magistrate subordinate to him, having the power and jurisdiction, for inquiry or trial of such case. The term used by the law-makers is 'refer' which cannot and should not be construed as 'transfer'. The term 'refer' in Section 410 means making over the case. Any other interpretation of that term shall not be in conformity with the legislative intent of the law-makers. The term used by the law-makers is 'refer' which cannot and should not be construed as 'transfer'. The term 'refer' in Section 410 means making over the case. Any other interpretation of that term shall not be in conformity with the legislative intent of the law-makers. Section 411 provides for similar power (like Section 410) with the District Magistrate and Sub-divisional Magistrate relating to cases pending in the courts of Executive Magistrates and Section 412 provides that the order passed under any of the provisions (Sections 408 to 411) shall be supported by reasons. 5. It thus appears from the aforesaid provisions in Chapter XXXI of the Code that on application of a party when a matter comes for consideration regarding transfer of a case from one criminal Court to another within the Sessions Division, then such matter should be moved and decided in accordance with the provision u/s 408 and not in accordance with the provision u/s 410, Code of Criminal Procedure As indicated in the preceding paragraph, the power u/s 410, Code of Criminal Procedure is dominantly administrative in nature. Such power is invested with the C.J.M. to see that there is equitable distribution of cases amongst Magistrates for early and proper adjudication and disposal. The C.J.M. can take stock of different circumstances like embezzlement cases, cases involving under-trial prisoners, offences under the Motor Vehicles Act which mostly are punishable with fine and the like for considering which matter should be dealt with by which Magistrate in a particular station and from time to time. Similarly, when new courts of Magistrates are created or established, then he is to pass administrative order for withdrawal and making over of cases to the newly established Court competent to try and decide within the territorial jurisdiction. These are a few illustrations regarding the C.J. Ms. exercising the power under Sub-section (1) of Section 410, Code of Criminal Procedure The power to withdraw and refer (making over) is invested with the C.J.M. dominantly in the administrative side. This perception can be well understood when in Sub-section (2) of Section 410, power in similar manner has been delegated to the cognizance-taking Magistrate though that remains confined to only withdrawal of cases and not relating to transferring or making over of cases from one Magistrate to another Magistrate working with him. This perception can be well understood when in Sub-section (2) of Section 410, power in similar manner has been delegated to the cognizance-taking Magistrate though that remains confined to only withdrawal of cases and not relating to transferring or making over of cases from one Magistrate to another Magistrate working with him. It cannot be said for a moment that Sub-section (2) of Section 410 authorises the cognizance taking Magistrate to pass order recalling any case made over by him to any other Magistrate by entertaining complaint/allegation against such magistrate. If such a power is not exercisable by the cognizance-taking Magistrate in that manner then use of such power by C.J.M. entertaining allegations and deciding the same is also not permissible under Sub-section (1) of Section 410, Code of Criminal Procedure In other words, wherever there is a case for consideration of an application for transfer on the basis of allegations against the Presiding Officer (Magistrate) or relating to convenience of the parties for transfer of a case from one Criminal Court to another within the same Sessions Division, then it is only in accordance with the provision u/s 408, Code of Criminal Procedure and not by resorting to Section 410. That is how this Court finds that the learned C.J.M. under a misconception wrongly exercised the power of transfer in this case when he transferred the case from the Court of S.D.J.M. to the Court of J.M.F.C., Bhadrak. But the latter order passed by him in withdrawing the case from the file of J.M.F.C., Bhadrak and making over the same to newly created Court of J.M.F.C., Basudevpur was in conformity with the power and jurisdiction vested in him under Sub-section (1) of Section 410. Code of Criminal Procedure 6. Hypothetically if it shall be assumed that the C.J.M. had such power of transfer then he being a senior ranked judicial officer was expected to act rationally, judiciously and with a restraint attitude while considering the transfer application when allegations had been made against the conduct of a judicial officer (i.e. the S.D.J.M., Bhadrak). He should have passed order for withdrawal of the case only after making an enquiry at his level and after being satisfied about the genuineness and correctness of the allegations made therein. He should have passed order for withdrawal of the case only after making an enquiry at his level and after being satisfied about the genuineness and correctness of the allegations made therein. Learned C.J.M. has mentioned in his report submitted to this Court that in the absence of specific provision for enquiry provided in Section 410 Code of Criminal Procedure he did not conduct any enquiry. Concept-wise he is wrong. Though there is no specific provision in Section 410 (1) about the mode of inquiry to be adopted by him to ascertain the truth, that does not mean that he is not to enquiry into the matter and decide the issue on the basis of mere allegations when the mandate of Section 412 is to pass a reasoned order. He could have adopted the normal procedure of conducting an enquire, such as, asking the persons acquainted with the allegations or persons present at the time of the particular incident. Above all, it would have been most appropriate to ask the Presiding Officer, against whom the allegation was made, to have his comment on the allegation before taking a decision in the matter to safeguard the principle of natural justice because a person cannot be condemned without affording an opportunity of hearing. The report submitted by learned C.J.M. shows that he presumed the allegations to be of some substance without affording an opportunity to the learned S.D.J.M. to have his say on that aspect. It appears from the report that learned C.J.M. acted hastily, injudiciously and passed that order without conducting proper inquiry and without being satisfied about the genuineness in the allegation and without having any administrative exigencies for withdrawal of that case from the file of the S.D.J.M. 7. Though a discussion on the aforesaid aspect is not very much relevant and necessary for consideration of the prayer of the Petitioner but that aspect is dealt with in the aforesaid manner not only because the Petitioner raised such a point but also due to the above indicated improper exercise of jurisdiction by learned C.J.M. so as to give him a guidance not to commit such mistakes in future. 8. 8. At the cost of repetition, it may be noted here that after opening of the Court of J.M.F.C. at Basudevpur in the month of March 2000, learned C.J.M. by proper exercise of power under Sub-section (1) of Section 410, Code of Criminal Procedure withdrew and made over all the case records coming within the territorial jurisdiction of the J.M.F.C., Basudevpur, and G.R. Case No. 657 of 1997 was no exception to that order. 9. Petitioner's prayer is for transfer of the said case from the Court of the J.M.F.C., Basudevpur to any other Magistrate at any place like Bhadrak, Balasore and Baripada, Learned Counsel for the Petitioner though initially put emphasis on the alleged ground of threatening as the sole ground for seeking the relief of transfer of the case from Basudevpur but the discussion during the hearing made him to make a submission for transfer of the case on the ground of convenience of the Petitioner. 10. So far as the ground of apprehending danger is concerned, after hearing learned Counsel for the Petitioner and perusing the concerned documents, this Court does not find such allegation being credible enough to be actect upon. Petitioner has not filed any document to the effect that her report about the attack of her was substantiated by any witness before the Officer-in-charge, Basudevpur. Under such circumstances, Annexure-2 does not prompt this Court to pass an order for transfer on that ground, Apart from that, when it was proposed to the Petitioner's Counsel that instruction may be issued to the concerned Police Officer through Superintendent of Police for adequate protection and safety, he avoided to reply to the proposed arrangement. Therefore, it is felt that Petitioner's effort is to get the case transferred from Basudevpur by hook or by crook. 11. Learned Counsel for the Petitioner referred to and relied on the case of Neelam Kanwar Vs. Devinder Singh Kanwar, In that Case, Hon'ble Apex Court have permitted transfer of a case from Punjab to Bombay on the ground of convenience of the wife. The facts and circumstances in that case are quite distinguishable from the present one inasmuch as admittedly the Petitioner is staying at Baripada. The places like Bhadrak or Basudevpur are in Bhadrak district whereas Baripada is the District headquarter of Mayurbhanj. The facts and circumstances in that case are quite distinguishable from the present one inasmuch as admittedly the Petitioner is staying at Baripada. The places like Bhadrak or Basudevpur are in Bhadrak district whereas Baripada is the District headquarter of Mayurbhanj. When the case was proceeding in the court of S.D.J.M., Bhadrak, Petitioner did not express the ground of inconvenience for transfer of the case to Baripada. She has started agitating about the matter after the case was transferred from the Court of S.D.J.M. As discussed above, the order of transfer of the case from the Court of S.D.J.M., Bhadrak to the Court of J.M.F.C., Bhadrak has become irrelevant because the case is now pending in the Court of J.M.F.C., Basudevpur (newly created court having the territorial jurisdiction over the case). The contention of the Petitioner that there is no direct communication between Baripada and Basudevpur cannot be the sole ground to allow the prayer for transfer when judicial notice of the fact can be taken about running of good number of buses and vehicles from Baripada to Bhadrak and Bhadrak to Basudevpur during day and evening time. Under such circumstance, this Court does not find any genuineness in the plea of absence of conveyance advanced by the Petitioner. 12. In view of the aforesaid reasons, this Court finds no good ground to allow the prayer for transfer of the case. Accordingly, the application stands rejected. However, it is observed that if the Petitioner shall file application before the Superintendent of Police, Bhadrak seeking for her protection at the time of appearance as a witness in the Court of J.M.F.C., Basudevpur, then the Superintendent of Police shall pass appropriate orders relating to necessity of grant of protection to her from Bhadrak to Basudevpur to and fro. For that purpose, Petitioner shall enclose a copy of this order along with his petition to the Superintendent of Police to provide protection. The Criminal Misc. Case is accordingly dismissed. A copy this order along with the application u/s 410, Code of Criminal Procedure (which had been sent by learned C.J.M.) be sent back to the C.J.M. after retaining a xerox copy of the said application with due attestation of the true copy by the Deputy Registrar (Judicial). fine of Rs. The Criminal Misc. Case is accordingly dismissed. A copy this order along with the application u/s 410, Code of Criminal Procedure (which had been sent by learned C.J.M.) be sent back to the C.J.M. after retaining a xerox copy of the said application with due attestation of the true copy by the Deputy Registrar (Judicial). fine of Rs. 3,09,700/-, in default, to undergo simple imprisonment for a period of four months Though the conviction and sentence were confirmed by the Sessions Judge, the High Court reduced the sentence to imprisonment for three months and the fine to Rs. 5.000/-. 13. We are now told that the dispute regarding the cheque amount has been settled between the Appellant and the payee-complainant. Learned Counsel appearing for the 2nd Respondent-complainant has confirmed the fact that grievance of the complainant-payee has been completely redressed and, therefore, he has no objection in giving any rdief to the Appellant. However, as the offence has been proved, we have to maintain the conviction. In view of the subsequent development including redressal of the grievance of the payee, we are inclined to save the Appellant from any further jail sentence. We therefore, reduce the sentence of imprisonment to the period he had already undergone. However, we maintain the fine sentence of Rs. 5,000/- undisputed. 14. Appeal is disposed of accordingly.