IN RE: K. GOVINDASWAMI CHETTIAR Vs. STATE

JUDGEMENT

(1.) THE petitioner in this case was accused of an offence of criminal breach of trust and a charge sheet was laid by the Sub -Inspector of Railway Police, Villupuram. The case was taken on file by the Sub -Divisional Magistrate, Tiruvannamalai. The original charge sheet was under Section 409 of the Indian Penal Code but subsequently the Police put in a petition for an alteration of the section to Section 408 of the Indian Penal Code. The section was accordingly altered and the case was then transferred from the file of the Sub -Divisional Magistrate, Tiruvannamalai to the file of the Stationary Sub -Magistrate, Tiruvannamalai for disposal according to law. The latter Magistrate took the case on his file as C.C. No. 18 of 1946 and framed a charge under Section 408 of the Indian Penal Code on 27th July, 1946. There was then an application to this Court by the accused to quash that charge on the ground that the offence alleged really amounted to an offence under Section 409 of the Indian Penal Code which the Magsitrate had no jurisdiction to try. This Court agreed with the petitioner, allowed his application and quashed the proceedings in C.C. No. 18 of 1946 on the file of the second Glass Magistrate of Tiruvannamalai by an order dated 10th April, 1947. Thereupon that Magistrate submitted the case records to the Sub -Divisional Magistrate for necessary orders and the Sub -Divisional Magistrate took the case on file as C.C. No. 123 of 1947. Objection was taken on behalf of the accused that the Sub -Divisional Magistrate had no power to proceed with the case because the order of the High Court quashing the proceedings in C.C. No. 18 of 1946 on the file of the second class Magistrate Tiruvannamalai, wiped out, so to say, even the first information report and the charge sheet. His objection was overruled.

(2.) THE accused seeks in this petition to revise the order of the Sub -Divisional Magistrate refusing to drop the proceedings. He also prays in another application to quash the proceedings in C.C. No. 123 of 1947 on the file of the Sub -Divisional Magistrate.

(3.) THE learned advocate referred me to three cases of the Calcutta High Court, namely, Golapady Sheikh v. Queen Empress, I.L.R.(1900) Cal. 979 Radhaballav Roy v. Benode Bihari Chatterjee, I.L.R.(1900) Cal. 449 and Ajab Lal Khirher v. Emperor, I.L.R.(1905) Cal. 783. None of these cases has any application to the facts of the present case. In none of these cases we find the proceedings on the file of the Magistrate to whom the case had been transferred being declared void by the High Court. In the first two of the cases the case was validly pending before the Magistrate to whom the case had been transferred and it was held that the Court which made the order of transfer had no power to pass any order in respect of the proceedings before the Magistrate to whom the case had been sent. In Ajab Lal Khirher v. Emperor, I.L.R.(1905) Cal. 783 the facts were no doubt different but there again it had not been declared that the Magistrate to whom the case had been transferred had no jurisdiction to entertain or try the case. Actually he had finished with the trial, convicted some of the accused and though no order had been passed in respect of the other accused his order was construed to be an order discharging those who had not been convicted. In any event I do not see how the decision in that case can have any bearing on the present case.