M L OULATI Vs. J L BIRMANI

JUDGEMENT

(1.) These petitions. arise out of two complaint cases, each of which are based on independent incidents, as sequel to disputes, between landlords and tenants. Both of these were heard together, not because of the community of relationship, between the parties, ineach of the cases, and a common counsel for the petitioners, but because they involve a common question of law if a succeeding Magistrate could issue process in a complaint, of which cognizance had earlier been taken and the complainant and or his preliminary evidence had been examined by the succeeded Magistrate.

(2.) The complaint, forming subject matter of Criminal Misc. (Main), No. 925 of 1983, was filed in the Metropolitan Magistrates court; presided over by -Shri L.D. Malik, who examined the complainant on January 22, 1983, and recorded part of the preliminary evidence, produced by the complainant, in support therepf. Before further preliminary evidence could be recorded, there was a change of the Presiding Officer although there is controversy as to the nature of and the reasons for the change. Be that as it may, e.ither R8. Mahila, Metropolitan Magistrate, succeeded Shri L. D. Malik, or the areas, which initially fell within the jurisdiction of Shri L.D. Malik in the allocation of work, was transferred to or merged with the area in relation to which Shri R.S. Mahila was exercising jurisdiction. As a result part of the preliminary evidence was recorded by Shri R.S. Mahila, whether or not, he could be said to be a succeeding Magistrate. Shri Mahila eventually made the impugned order on the basis of the complaint, the statement of the complainant recorded by the predecessor Magistrate, and the preliminary evidence, partly recorded by one and partly recorded by the other, and came to the conclusion that there was ground to proceed against the accused persons. The other complaint was filed on September 11, 1978 in the Court of Metropolitan Magistrate, Delhi, presided over by Shri I.C. Tiwari. The statement of the complainant was, however, recorded by Shri P.S. Sharma, Additional Chief Metropolitan Magistrate. The preliminary evidence was also recorded by him. The order summoning the accused persons was, however, made by Shri R.L. Chugh, Additional Chief Metrorolitan Magistrate, Delhi. It is not clear as to how the complaint filed in the Court, presided over by Shri I.C. Tiwari, eventualJy found its way in the court of the Additional Chief Metropolitan Magistrate, Delhi, presided over by Shri P.S. Sharma. Shri P.S. Sharma, Addi. Chief Metropolitan Magistrate was, however, admittedly succeeded by Shri R.L. Chugh. It is unnecessary to go into the question as to the precise manner in which the complaint, of which a seizen had been taken by one court, was dealt with by alter, because it was a common case of the parties that in neither of the cases there was a transfer of a complaint under sub-section (I) of section 192 of the Code of Criminal Procedure, and that in any event, the presiding officers, who eventually made the impugned orders, in the two cases, were successors of the Magistrates. who had taken seizen of the complaints, and had recorded the statement of the. complainant, and part of the preliminary evidence.

(3.) In each of the petitions, the order proceeding against the accused persons is also assailed on the ground that the allegations in the complaint the statement of the complainant, and the preliminary evidence, in support of the com paint, do not justify the conclusion that there is ground to proceed against the accused persons. For reasons which appear to be obvious, and are prima facie confirmed by an examination of the complaint, the statement of the complainant, and the preliminary evidence, the challenge to the validity of the two orders would perhaps not survive if the petitioners contention with regard to jurisdiction were to fail.