AHMED MOIDEEN KHAN Vs. INSPECTOR OF D DIVISION

JUDGEMENT

(1.) THESE are two petitions for setting aside the orders of the Sessions Judge of madras in Crl. M. P. Nos. 7 and 9 of 1957, on his file, transferring C. C. Nos. 96 and 2014 of 1957 from the file of the V Presidency Magistrate, Madras, to the Chief presidency Magistrate, Madras, for being tried and disposed of by himself or by some Magistrate named by him other than the V Presidency Magistrate, These petitions first came up for hearing before Somasundaram J. but, owing to an important constitutional question raised by the petitioners, viz, the alleged absence of jurisdiction in the Sessions Judge, Madras, to entertain transfer applications in respect of cases pending before the Presidency Magistrates of madras, Somasundaram J. directed these two cases to be posted before a Bench. That is how these petitions have come before us.

(2.) WE may now state briefly the facts which are a bit tangled and go back to a period of more than a year and are necessary, according to Mr. Vaz, the learned counsel for the petitioners, to understand the background and setting of these cases. The petitioners here, Abdus Samad Khan and Ahmed Moideen Khan had filed C. C. Nos. 11194 and 12153 of 1956 on the file of the V Presidency magistrate, Madras, under Sections. 324 and 325 I. P. C. against a Sub Inspector of police, V. P. Natarajan, and a Head Constable and some Constables of Madras, alleging that these police officials had entered their houses at mid-night and dragged them out and beaten them with a view to extort confessions from them regarding some bucket-shop offences. The learned Fifth Presidency Magistrate took the complaints on file, and inquired into them under Section 202 Crl. P. C. , in order to satisfy himself that they deserved to be proceeded with and not dismissed under Section 203 Crl. P. C. During the course of his inquiry under Section. 202 Crl. P C. , the learned magistrate was requested by the police officials to examine the complainant's advocate, and some other witnesses, and to refer to some records which would show the complaints to be false and frivolous. The learned Magistrate rightly refused to do so at that stage. After completing the inquiry under Section 202 Crl. P. C he issued summonses to the accused. He is also stated to have told the accused that though the offences mentioned in the complaints were only those under Sections. 324 and 325 I. P. C. the complaints, if believed in, would also disclose offences under Section 330 I. P. C. and that they should be prepared to face that charge also. The Sub Inspector V. P. Natarajan, one of the accused, thereupon filed two applications before the Sessions Judge, Madras for transferring the cases from the file of the Fifth Presidency Magistrate to the file of some other Presidency magistrate, as he apprehended that the conduct of the Fifth Presidency Magistrate in not examining the complainant's advocate, and other witnesses, and the records mentioned by the accused, and in telling him that an offence under section 330 I. P. C; not mentioned in the complaints, might also arise if the complaints were believed in, showed that the Magistrate was prejudiced against the accused.

(3.) THE complainants (the present petitioners) opposed those petitions on two grounds. The first was that the learned Sessions Judge had no jurisdiction under madras Act XXXIV of 1955 to entertain transfer applications for transferring cases from the files of the Presidency Magistrates of Madras, as only the Original Side jurisdiction of the High Court regarding the trial of sessions cases committed to that court had been transferred to him by the Act, and the Appellate Side jurisdiction to transfer had not been transferred to him expressly or by necessary implication. The second was that even if the Sessions Court, Madras had jurisdiction to entertain transfer applications, the allegations against the Fifth presidency Magistrate were not correct and would not show any prejudice on his part and justify the transfers.