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2000 DIGILAW 571 (CAL)

Ali Mohammed Khan @ Ali Mohammed v. State

2000-11-23

Debiprasad Sengupta

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JUDGMENT Debiprasad Sengupta, J. Inspite of notice none appears on behalf of the State. 2. This revisional application is directed against the judgment and order dated 6.3.85 passed by the learned Addl. Sessions Judge, 1st Court, Bankura, dismissing the Crl. Appeal No. 54 of 1984 preferred by the accused petitioner against the order dated 23.11. 84 passed by the learned Judicial Magistrate, 3rd Court, Bankura, in Case No. 551C of 1981 convicting the present petitioner under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentencing him to suffer rigorous imprisonment for one year. 3. The prosecution case in short is that on 25.8.81 at about 4/4-30 P.M. Railway Protection Force personnel apprehended the petitioner near railway track in between Jhantipahar and Chhatna and recovered the railway property from a gunny bag which was being carried by the petitioner on a cycle. The petitioner failed to produce any documents for the articles. A charge under section Sea) of the R.P. (UP) Act was framed against the petitioner by the learned Chief Judicial Magistrate, Bankura. The learned Chief Judicial Magistrate, Bankura proceeded with the trial of the case. 4. The learned advocate appearing for the petitioner submits that the case was tried by the learned Chief Judicial Magistrate, Bankura from the very beginning till examination of the accused petitioner under section 313 Cr. P.C. Thereafter, by an order dated 18.5.84, the learned Chief Judicial Magistrate, Bankura , transferred the case for disposal to the learned Judicial Magistrate, 3rd Court, Bankura. The learned Judicial Magistrate, 3rd Court, Bankura, heard the arguments and delivered the judgment on 23.11.84 convicting the petitioner under section 3(a) of the R.P. (D.P.) Act and sentencing him to R.I. for one year. It is submitted by the learned advocate of the petitioner that the transfer of the case by the learned Chief Judicial Magistrate at the stage when examination of the accused under section 313 Cr. P.C, was over, is illegal and without jurisdiction. In support of his contention the learned advocate of the petitioner relies on a Division Bench judgment reported in A (38) 1951 Mad. 529 (Natesan Seruai & Ors.). P.C, was over, is illegal and without jurisdiction. In support of his contention the learned advocate of the petitioner relies on a Division Bench judgment reported in A (38) 1951 Mad. 529 (Natesan Seruai & Ors.). In the said judgment it was held by the Division Bench of Madras High Court that 'it seems to us, therefore, that when the Code in sub-section (1) of section 192 speaks of the words "enquiry or trial" especially since the section appears at this stage of the Code which relates to the place of enquiry or trial or the initial stages of the hearing it is not intended to mean that sub-section (1) of section 192, could give a superior Magistrate, who has heard the case in part, power to transfer the case to a subordinate Magistrate to hear the rest of it. * * * * * * * * * "We are, therefore, of opinion that the transfer of the case at the stage at which it had reached before the Sub-Divisional Magistrate of Mayram is illegal. The convictions of the petitioners by the Stationary Sub-Magistrate of Srikali are therefore illegal." 5. Sub-section (1) of section 192 empowers the Chief Judicial Magistrate, after taking cognizance of the offence to make over the case for enquiry or trial to any competent Magistrate subordinate to him. It is clear from section that the learned Chief Judicial Magistrate can transfer a case after taking cognizance of the offence. In the present case after taking cognizance of the offence, the learned Chief Judicial Magistrate proceeded with the trial, recorded evidence and after examination of the accused persons under section 313 Cr, P.C. transferred the case to a subordinate Magistrate to hear the rest of it, which is not permissible under the law. It appears that the present point was raised before the Lower Appellate Court but from the impugned judgment of the learned Addl. Sessions Judge it appears that he was of the view that such a defect is curable. I am unable to accept such view expressed by the learned Addl. Sessions Judge. An illegality remains an illegality. There is no doubt that the learned Chief Judicial Magistrate transferred the case to his subordinate Magistrate under section 190 (1) Cr.P.C. (sic) [192 (1) Cr. P.C]. Section 190 (1) Cr. P.C. (sic) [192 (1) Cr. P.C]. I am unable to accept such view expressed by the learned Addl. Sessions Judge. An illegality remains an illegality. There is no doubt that the learned Chief Judicial Magistrate transferred the case to his subordinate Magistrate under section 190 (1) Cr.P.C. (sic) [192 (1) Cr. P.C]. Section 190 (1) Cr. P.C. (sic) [192 (1) Cr. P.C]. is not included in any of the clauses mentioned in section 460 Cr. P.C. It appears from the impugned judgment of the learned Addl. Sessions Judge that he himself was of the view that it would have been better had the case been tried in full by the learned Chief Judicial Magistrate himself or had the case been transferred to any subordinate Magistrate at the very beginning of the case. Even in spite of such observation the learned Magistrate (sic) (Additional Sessions Judge) found that such defect is curable. I am unable to accept such view expressed by the learned Addl. Sessions Judge. 6. I have heard the learned advocate of the petitioner. I have perused the judgment and order passed by the learned Addl. Sessions' Judge as also the judgment and order passed by the learned Judicial Magistrate, 3rd Court, Bankura. I am therefore of the opinion that the transfer of the case at the stage when the examination of the accused under section 313 Cr. P.C. was over, was totally bad in law. I accordingly allow this application. The rule issued by this Court is made absolute. The order of conviction and sentence of the petitioner is set aside. Since the offence is of 1981, it will not be wise to send the matter again for retrial of the petitioner. The present petitioner is accordingly acquitted. Appeal allowed.