KRISHNA PANICKER Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners herein are respondents in M. P. No. 1 of 1980 before the court of the Sub-Divisional Magistrate, Kasaragod, a proceeding initiated under Section 133 of the Code of Criminal Procedure. While the proceedings were pending the petitioners moved the District Magistrate. Cannanore, for a transfer of the case from the Court of the Sub-Divisional Magistrate, Kasaragod, to some other court. The ground mentioned for transfer was that the Sub-Divisional Magistrate, Kasaragod, is the son-in-law of one Mammu Haji, who, according to the petitioners, is backing the 4th respondent (the petitioner in M. P. No. 1 of 19802_and is assisting him in the con- duct of the case. The District Magistrate dismissed the petition stating that Mammu Haji. the father-in-law of the Sub-Divisional Magistrate was not the counsel for the petitioner in the proceedings before the Sub-Divisional Magistrate and that he did not expect any miscarriage of justice merely because one of the parties was known to the father-in-law of the presiding officer. In the present petition filed under Sections 407 and 482 of the Code of Criminal Procedure the petitioners reiterate their contention and pray for transfer of the case.

(2.) THE petition is opposed. A preliminary objection is raised that the petition is not maintainable, firstly on the ground that Section 407 has no application in the case of transfer of cases pending before the Executive Magistrates; and, secondly, on the ground that assuming that the section applies there is the bar under the proviso to Section 407 (2) in as much as the petitioner has not moved the Sessions Judge for the relief sought. It is also contended that even assuming that the petition is maintainable, sufficient grounds for transfer have not been made out.

(3.) AS regards the preliminary objection the learned Counsel for the respondent relied on S 411 of the Code of Criminal Procedure, which is a special provision regarding the making over and withdrawal of cases pending before Executive Magistrates. Under the said section any District Magistrate or Sub-Divisional Magistrate may make over for disposal any proceeding which has been started before him any Magistrate subordinate to him and also' withdraw any case or recall any case which has been made over to any Magistrate subordinate to him, and dispose of such proceeding himself Or refer it for disposal to any other Magistrate. The argument is that this is the only provision relating to transfer of cases pending before an Executive Magistrate and that in the absence of special mention the provisions of Section 407 have no Profit is also pointed out that Court intends that particular should apply to Executive special mention thereof is made and therefore in the absence of special mention in S- 407 that section has no ap-Sation to matters pending before Executive Magistrates. Reference to made that connection to Section 397 dealing with revisional jurisdiction of the High Court and the Sessions Judges. The explanation to Section 397 (1); specifically mentions that all Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of exercising re-visional jurisdiction. It is argued that in the absence of similar provision in Section 407 neither the High Court nor the Court of Session is empowered to exercise the powers of transfer with reference to Executive Magistrates.