(1.) The petitioner is the complainant in C. C. 75 of 1977 on the file of the Judicial Magistrate, First Class, Tirur. The complaint was filed against the 1st respondent, who is the Circle Inspector of Police, Nilambur alleging acts of torture of the petitioner and another Harijan in the course of an incident which took place on the 25th of June, 1976. The 1st respondent filed CMP. 7 of 1978 under S.410 of the Code of Criminal Procedure for transfer of the case to some other court within the jurisdiction of the Chief Judicial Magistrate, Manjeri. The reasons mentioned for transfer are not relevant for the disposal of this petition. Pending disposal of the petition, the 1st respondent filed CMP. 167 of 1978 for stay of proceedings in CC. 75 of 1977 till the disposal of CMP. 7 of 1978. The Chief Judicial Magistrate allowed the petition. The present petition is filed under S.482 of the Code of Criminal Procedure for quashing the order of stay.
(2.) The contention put forward on behalf of the petitioner is that the Chief Judicial Magistrate has no jurisdiction to stay trial of the proceedings, pending orders of withdrawal under S.410 of the Code of Criminal Procedure. Reference was made to S.407(6) and 408(3) where specific provision is made for stay of trial of cases pending disposal of application for transfer made before the High Court and the Sessions Judge. The petitioner would contend that the absence of a similar provision in relation to S.410 of the Code of Criminal Procedure would only show that the Chief Judicial Magistrate is not competent to stay the trial of the case pending decision on the petition seeking withdrawal.
(3.) There is an apparent difference between the power of transfer conferred under S.407 and 408 of the Code of Criminal Procedure and the power of withdrawal vested in the Sessions Judge and the Chief Judicial Magistrate under S.409 and 410 of the Code. This is evident by a comparison of S.408 which deals with power of transfer of cases conferred on the Sessions Judge and S.409 which deals with power of withdrawal vested in the same Judge. Unlike S.407(1)(iv) which refers to the High Court, S.408 does not empower a Sessions Judge to transfer cases and appeals for trial or disposal by himself. This is because a Court of Session ordinarily gets jurisdiction to try a case only on the same being committed to it by a Magistrate as provided in S.193 of the Code of Criminal Procedure and under Chap.29 of the Code appeals are filed either before the High Court or the Court of Session. The Sessions Judge only makes over cases committed to it and appeals before it. The power of making over cases in the case of the Chief Judicial Magistrate and the Sessions Judge are contained in S.192 and 194 of the Code. A Chief Judicial Magistrate is competent under S.410 of the Code to try any case pending before any of the Subordinate Magistrate, by withdrawing the case to his file and can also make over any case pending in his Court for trial by a subordinate Magistrate competent to try the case. Under the scheme envisaged in S.409 and 410 of the Code of Criminal Procedure, a Sessions Judge and the Chief Judicial Magistrate can transfer a case pending in a Court only by withdrawing the case to his file first and then making over the same to another court competent to try it. Such making over and withdrawal are functions of the Sessions Judge and Chief Judicial Magistrate, enjoined under the Code for distribution of work among the Additional and Assistant Sessions Judges and the subordinate Magistrates which they exercise without any motion from any party. Therefore, no question of stay is ordinarily involved in the exercise of powers under S.409 and 410. But there is nothing in the Code to suggest that the power of withdrawal in S.409 and 410 and that of making over under S.192 and 194 are confined to a stage prior to the commencement of trial or that the powers are not to be exercised at the instance of a party to the proceedings. The Court while exercising power under S.409 or S.410 at the instance of a private person can do it only after making an enquiry into the merits of the motion. The power would be infructuous if before the enquiry is completed the case is disposed of by the Court where it is pending. It follows that for an effective exercise of the power, the proceedings before the court where the case is pending should be stayed in appropriate cases. An implied power to stay proceedings can be inferred under the circumstances.