Chief Judicial Magistrate has no power to transfer a case if tried by himself
Bal Kishan vs State Of Rajasthan on 30 April, 1982
K.D. Sharma, C.J.
1. The only point argued before me by Mr. D. Parihar learned Counsel for the petitioner is that the Chief Judicial Magistrate, Dungarpur committed an error in transferring this case to the Court of Munsif and Judicial Magistrate Dungarpur vide his order dated 6-8-79 marked Annexure 18 and annexed with the petition. In support of the above contention he invited my attention to the provisions contained in Section 410, Cr. P.C. which clearly provides that 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 Magistrate competent to inquire into or try the same, Mr. D. Parihar further contended that the Chief Judicial Magistrate, Dungarpur himself was trying this case before he passed the order of transfer of this case to the Munsiff Judicial Magistrate Dungarpur. According to the submission of Mr. D. Parihar it was not a case which has been made over by the Chief Judicial Magistrate to Munsif and Judicial Magistrate, Dungarpur, nor was it a case pending trial in the Court of the Munsif and Judicial Magistrate and so the Order passed by the Chief Judicial Magistrate regarding transfer of this case to the Munsif and Judicial Magistrate subordinate to him was prima facie illegal and without jurisdiction.
2. Mr. M. D. Purohit Public Prosecutor could not succeed in controverting the legal position pointed out by Mr. D. Parihar learned Counsel for the petitioner.
3. I find force in the argument of Mr. D. Parihar that this case could not be transferred because the Chief Judicial Magistrate had started proceeding with the trial of the case himself before passing the impugned order of transfer. This legal position becomes all the more clear upon perusal of Clause (a) of Section 411, Cr. P.C. because under that clause a District Magistrate or Sub-Divisional Magistrate may make over for disposal any proceeding which has been started before him to any Magistrate subordinate to him but no such provision has been made under Section 410, Cr. P.C. authorising the Chief Judicial Magistrate to make over for disposal any case the trial of which has been started before him to any Magistrate subordinate to himself the legislature intended to give such a power to Chief Judicial Magistrate also it would have expressed his intention in clear and definite terms as it has done in Clause (a) of Section 411 Cr. P.C. white providing for making over or withdrawal of cases by Executive Magistrate. Consequently, I have no hesitation in holding that the impugned order passed by the Chief Judicial Magistrate, Dungarpur on 6-8-79 being illegal and without jurisdiction is liable to be quashed or set aside. However, I may observe that if the Chief Judicial Magistrate for any reason best known to him did not like to try this case he could make a report to this effect to the Sessions Judge who was empowered under Sub-section (2) of Section 408 to act on his report or under Section 409 Cr. P.C. to pass any judicial order regarding transfer of this case.
4. Mr. D. Parihar submits that he does not want to press other points, raised by him in his petition under Section 482 Cr. P.C.
5. The result is that the petition under Section 482 Cr. P.C. filed by Balkishan petitioner is partly accepted and the impugned order passed by the Chief Judicial Magistrate on 6-8-79 transferring the case to Munsif and Judicial Magistrate, Dungarpur is quashed and the Chief Judicial Magistrate, Dungarpur is directed to act in accordance with law in the light of the observation made above.