DINA NATH MISRA Vs. FATINGAN MISRA

JUDGEMENT

(1.) THE applicants had been summoned as accused in a complaint case. THEreafter, non-bailable warrants were issued against them to compel their attendance in Court. By means of this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) they have challenged the legality of both the proceedings.

(2.) THE Ist Additional Munsif Magistrate took cognizance of the offence contained in the complaint filed by the opposite party no. 1 against the applicants. A Criminal Case No. 779 of 1983 was registered by the Magistrate. He examined the complainant and thereafter some of the complainant's witnesses were examined under section 202 of the Code. On 3-11-1983 the Criminal Case No. 779 of 1983 was transferred from the file of the Ist Additional Munsif Magistrate to the file of Vllth Additional Munsif Magistrate. THE case was renumbered as Criminal Case No. 423 of 1983. This Magistrate examined the remaining witnesses of the complainant and on 5-4-1984 summoned the applicants. For that purpose processes were issued as against the applicants. THE learned Sessions Judge on 16-7-1984 transferred the Criminal Case No. 425 of 1983 to the Court of VIth Additional Munsif Magistrate and here the Criminal Case was further renumbered as Criminal Case No. 381 of 1984 THE VIth Additional Mansif Magistrate felt that the applicants were avoiding their attendance in Court and, therefore, on 1-8-1984 he passed an order issuing non-bailable warrants against the applicants and fixed 1-9-1984 for their appearance.

(3.) LEARNED counsel for the applicants also relied upon a decision in Qamarali Syed Ali v. Mt. Tulsi, AIR 1938 Nagpur 433. In this case, a case was transferred by the Additional District Magistrate to the file of a Magistrate. The Additional District Magistrate has not taken cognizance of the offence. He passed the order of transfer under the then existing provisions of Section 528 of the Code. The question arose as to whether a Magistrate, to whom a case has been transferred under section 528 of the Code, had any jurisdiction to issue process under section 202 of the Code. The Court held that in such a situation the Magistrate has no such jurisdiction. The case is, therefore, not apposite to the case at hand.