In a case where a Magistrate, after taking cognizance, finds that he has no territorial jurisdiction to try the case, he can, acting under Section 322 Cr.P.C. directly forward the case records to the Chief Judicial Magistrate having jurisdiction even if such Chief Judicial Magistrate be functioning outside the State.
It is clear that Initiation of proceedings, dealt with in Chapter XIV, is different from Commencement of proceedings covered by Chapter XVI. For commencement of proceedings, there must be the initiation of proceedings. In other words, the initiation of proceedings must precede the commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be the commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with the commencement of proceedings under Chapter XVI [Chief Enforcement Officer v. Videocon International Ltd. [2008 (2) SCC 492]
322. Procedure in cases which Magistrate cannot dispose of
(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption—
(a) that he has no jurisdiction to try the case or commit it for trial, or
(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or
(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.
1- Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 :
“14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.”
2- State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 :
“13. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court…..”
3- Y. Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100.
The procedure of returning the complaint along with annexures to the complainant for the purpose of presenting before the proper Court is not altogether foreign. In fact, the Supreme Court has ordered so in certain cases. It can not be said that as the complaint and annexures are Court property, the same can at no instance be returned to the complainant. It would be more in keeping with the provisions of Section 451 Cr.P.C. to direct return of the complaint along with annexures as also record of proceedings under Section 202 Cr.P.C.
Various decisions touching upon Section 322(2) Cr.P.C. inform that the Magistrate to whom a case is submitted under Section 322(1) Cr.P.C. cannot act on the evidence recorded by the submitting Magistrate, but must, if he tries the case try it de novo (Manikonda Satyanarayana vs. State [AIR 1955 Andhra 44]; Panna Lal and others vs. State [AIR 1952 All 657]; and Sashti Gopal Samui and another vs. Haridas Bagdi [AIR 1938 Cal 415]). Even the accused has no power to waive his right to a trial de novo (Ambika Singh and others vs. Emperor [AIR 1918 Pat 676]; Emperor vs. Gokal [(1904) 1 Cri LJ 1056]; and Muhammad and another vs. Emperor [1905 (2) Cri LJ 369]). [Madras High Court in Mahender Goyal vs M/S.Kadamba International on 22 November, 2013 in CRIMINAL O.P.No.351 OF 2012 – In Re:Petition under Section 482 of the Code of Criminal Procedure to call for the records in S.T.C.No.670 of 2011 on the file of Judicial Magistrate No.II, Erode, and quash the same.