SATYANARAYAN SAMBAYYA HEGDE Vs. STATE OF MYSORE

JUDGEMENT

(1.) This revision petition is directed against the order dated 16-6-1970 passed by the District Magistrate, North Kanara, in case No.MAG. III. CSR. 2365 rejecting the Petitioner's application for transfer of proceedings under S. 145 of Crl.P.C. pending before the Sub- Divisional Magistrate, Kumta, in case No.MAG. II. SR. 50, to some other Court of competent jurisdiction, and the petitioner before this Court is the Second Party before the Sub-Divisional Magistrate.

(2.) The Second respondent before this Court who is the First Party before the Sub-Divisional Magistrate, initiated the proceedings under S.145, Cr.P.C. The petitioner filed an application before the District Magistrate for transfer of the said proceedings from the court of the Sub-Divisional Magistrate to some other Court of competent Jurisdiction. He alleged in that application that he would not get justice at the hands of the Sub-Divisional Magistrate and the circumstances justified that the case should be tried by some other Court. This application was resisted by the Second respondent. It was contended before the District Magistrate that he could withdraw and transfer the proceedings to some other Sub-Divisional Magistrate under the general powers conferred on him under S.17-A(2) of the Cr.P.C. which reads thus :-

(3.) It is contended on behalf of the petitioner that the provisions of S.17-A(2) of the Cr.P.C. confer power on the District Magistrate to transfer proceedings of this kind pending before a Sub-Divisional Magistrate who is subordinate to him to some other Magistrate of competent jurisdiction at the instance of a party provided he is satisfied with the grounds mentioned therein. On the other hand, it is contended by Sri Laxmeswar appearing for the State that these provisions empower the District Magistrate, from time to time, to make rules or give special orders regarding the distribution of business among the Magistrates subordinate to him and the allocation of business to the Additional District Magistrates and they do not confer power on him to withdraw and transfer proceedings of this kind. It 'is pointed out by him that the power to withdraw and transfer criminal cases by the High Courts, Sessions Courts and the District Magistrates, is dealt with under Chapter XLIV of the Cr.P.C. and that S.528(3) Cr.P.C. clearly mentions that unless the District Magistrate is authorised by the State Government to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper or particular classes of cases, he cannot do so. It is also pointed out by him that while the provisions of Ss.528(1) and 528(2) Cr.P.C. confer power on a Sessions Judge to withdraw and transfer any case pending before a Criminal Court subordinate to him, such power is not conferred on the District Magistrate and he can exercise such power only when he is authorised by the State Government to do so under S.528(3) Cr.P.C. and that section which is relevant for the present context reads thus :-