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Madhya Pradesh High Court · body

2005 DIGILAW 258 (MP)

Bipin Saluja v. Damodar Coal Agency

2005-02-18

A.K.SHRIVASTAVA

body2005
JUDGMENT This order shall govern the fate of MCrC Nos. 9422/2004,9423/2004, 9424/2004, 9425/2004, 9426/2004, 9427/2004, 9428/2004 and 9429/2004 since common question has been involved in these cases. No exhaustive statement of facts are necessary for the disposal of this case. Suffice it to state that respondent had filed a complaint under section 138 of the Negotiable Instruments Act against the petitioner. This complaint was filed before the Judicial Magistrate First Class, Maihar district Satna. The question about maintainability of petition at Maihar was raised by the petitioner. According to him, the Judicial Magistrate at Katni had territorial jurisdiction. The learned Magistrate at Maihar vide its order dated 26.10.1994 held that Maihar Court had jurisdiction. The petitioner, assailed the said order, by filing criminal revisions, before this Court. After having heard at length, this Court vide its order dated 30.9.1996 decided the bunch of criminal revisions and categorically held in para 12 that Court at Maihar also had the territorial jurisdiction to try the offences alleged in the complaints and accordingly all the revisions were dismissed. This Court further held that the trial is pending since 1993, therefore trial Court was directed to dispose of the trial expeditiously and as far as possible within a period of one year from the date of the order. The said order has been placed on record as Annexure P-1. Thereafter, the case was being tried by the Judicial Magistrate First Class Maihar. Later on, as it appears from the order-sheet dated 6.11.2004 of the JMFC Maihar, the Chief Judicial Magistrate Satna withdrew the cases from the Court of JMFC Maihar and started trying all those cases. The action of Chief Judicial Magistrate Satna calling and withdrawing the case from the Court of JMFC Maihar is pinching to the petitioner and hence this petition has been filed under section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') with a prayer that the action of Chief Judicial Magistrate withdrawing the case from JMFC Maihar to its own Court, be quashed. Learned counsel for petitioner raised three submissions. Learned counsel for petitioner raised three submissions. His first contention is that this Court vide Annexure P-1 held that territorial jurisdiction is vested in the Court at Maihar and therefore CJM Satna is not having any territorial jurisdiction; his another contention is that the action/order of CJM Satna withdrawing the case from the Court of JMFC Maihar runs contrary to section 410 of the Code. It has been lastly contended that if any complaint is made to, transfer the case then it was decided behind the back of applicant and the cases cannot be transferred without bearing him. Per contra, learned senior counsel by placing reliance on the decision of the apex Court in the case of State of A.P. v. Golconda Linga Swamy and another (2004) 6 SCC 522 has submitted that the transfer was made on administn1tive ground and therefore it cannot be challenged. It has also been put forth by him that the action/order of Chief Judicial Magistrate withdrawing the case from JMFC Maihar cannot be said to be contrary to section 410 of the Code. Lastly, it has been submitted that this petition is nothing but the abuse of the process of the Court and hence this petition sans substance and may be dismissed. After having heard learned counsel for the parties, I am of the view that all these petitions deserve to be dismissed. It has been vehemently argued by Shri Anil Khare, learned counsel for the petitioner that this Court vide Annexure P-l dated 30.9.1996 had already decided that Maihar Court had jurisdiction and therefore Chief Judicial Magistrate which sits at Satna had no territorial jurisdiction. Before deciding the point agitated by learned counsel, it would be apposite to re-write para 12 of the decision of this Court which reads thus: "12. From the above discussion, it emerges out that the failure on the part of the 'drawer' of the cheque in making payment of the amount of the cheques, to the 'holder' of the cheques, within 15 days of the receipt of the notice, is an essential ingredient of the offence punishable under section 138 of the Act. The above failure on the part of the 'drawer' of the cheque pre-supposes issuance of a 'Notice' by the 'holder' of the cheques. The above failure on the part of the 'drawer' of the cheque pre-supposes issuance of a 'Notice' by the 'holder' of the cheques. As in the present cases, the above notice was issued by the 'holder' of the cheque/complainant from Maihar, and the 'drawer' of the cheques, the petitioners, in response to the above notice had failed in making the payment of the above cheques which they were required to make at Maihar, this Court is of the view that the Court at Maihar also had the jurisdiction to try the offences alleged in these complaints." It be seen that the objection of petitioner was that the Katni Court was having territorial jurisdiction and not Maihar Court and in that context it was held that the Court at Maihar had the jurisdiction to try the offence alleged in the complaints, which would mean that the Magistrate at Katni as well as the Magistrate at Maihar both are having jurisdiction to try the complaints. It be seen that Maihar is a Tahsil which is a part of district Satna. The Chief Judicial Magistrate sits at Satna and therefore it cannot be said that CJM of Satna is not having territorial jurisdiction. The appointment of Chief Judicial Magistrate is made under section 12 of the Code which reads thus: "12. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. -- (1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. (2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct. (3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of .the responsibilities specified in this section as occasion requires. (3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of .the responsibilities specified in this section as occasion requires. (b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the Sub-division as the High Court may, by general or special order, specify in this behalf." If we analyse this section, it is gathered that under sub-section (1) the High Court shall appoint a Judicial Magistrate First Class to be the Chief Judicial Magistrate; under sub-section (2) the powers are conferred to the High Court to appoint Judicial Magistrate of first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the power of Chief Judicial Magistrate under the Code; under sub-section (3) (a) the powers are entrusted to the High Court and by exercising those powers, High Court may designate any Judicial Magistrate of the First Class in any sub-division as the Special Divisional Judicial Magistrate. According to clause (b) Sub-Divisional Judicial Magistrate shall also have and can exercise all such power of supervision and control over the work of Judicial Magistrate other than the Additional Chief Judicial Magistrate in the Special Division as the High Court may by general or special power specify. However, this clause is subject to the general control of the Chief Judicial Magistrate. Thus, in every district there shall be Chief Judicial Magistrate which shall be appointed among the Judicial Magistrate Of First Class. It is not disputed that Satna is a district and Maihar is a Tahsil of district Satna. It is also not disputed that JMFC sitting at Maihar is under the general control of CJM. Therefore, it cannot be said that Chief Judicial Magistrate of Satna is not having any territorial jurisdiction. The other contention of learned counsel for the petitioner is that under section 410 of the Code, the Chief Judicial Magistrate may withdraw or recall any case which he has made over to any Magistrate subordinate to him and in that situation only, the power can be exercised. The other contention of learned counsel for the petitioner is that under section 410 of the Code, the Chief Judicial Magistrate may withdraw or recall any case which he has made over to any Magistrate subordinate to him and in that situation only, the power can be exercised. According to the learned counsel since the case was not made over to Judicial Magistrate at Maihar by the Chief Judicial Magistrate, therefore the powers could not have been exercised. This argument cannot be accepted for the simple reason that in section 410, after the wordings "any Chief Judicial Magistrate may withdraw any case from" there is a comma and thereafter the wordings are "or recall any case which he has made over to" and thereafter there is another comma and then the language of section is "any Magistrate subordinate to him, and may enquire into or try such case himself or referred it for enquiry or trial to any other such Magistrate competent to enquire or try to the same". Since there is a comma, sub-section (1) is to be read in the context that any Chief Judicial Magistrate may withdraw any case from,......., any Magistrate subordinate to him. Thus, the Chief Judicial Magistrate can withdraw any case from any Magistrate subordinate to him and this power is not restricted only to those cases which are made over to any Magistrate and thus under section 410 of the Code, the Chief Judicial Magistrate, Satna was empowered to withdraw the case from any Magistrate subordinate to him. The last contention of learned counsel is that no notice was issued to the petitioner before transferring the case is devoid of any substance. The issue of a notice is not mandatory and the want of a notice does not amount to an illegality at the most it may be extended and can be stretched up to the extent of impropriator. Apart from this, learned counsel for the petitioner could not point out that what prejudice is being caused to the petitioner if the case is tried by Chief Judicial Magistrate. In view of above, all these petitions are found to be devoid of any substance and the same are hereby dismissed.