STATE Vs. PRABHUDAYAL

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Bhind, recommending to the High Court that the order of conviction and sentence passed by Mr. Dulani. First Class Magistrate, Lahar, be set aside, because he tried the case summarily while he was not vested with summary powers.

(2.) IT is admitted that while Mr. Dulani was Sub -Divisional Magistrate (First Class Magistrate) at Barely in Raisen District, the State Government exercising powers under Section 37 of the Criminal Procedure Code, had conferred upon him the summary powers. The learned Sessions Judge has thought that on his transfer to Lahar the summary powers ceased. But mere transfer does not deprive a Magistrate of the powers conferred upon him unless those powers are withdrawn under Section 41 of the Criminal Procedure Code, Section 40 of the Code of Criminal Procedure is quite clear on the point. It says that when a person in service of the Government is vested with any power in any local area, on his subsequent appointment (which includes transfer) either on an equal office or a higher office of the same nature, within the local area under the State Government, he shall continue to exercise the same powers within the area he is so appointed. Section 41 empowers the Government to withdraw the powers that may have been conferred upon. There is nothing on the record to show that when Mr. Dulani was transferred from Barely, the summary powers conferred upon him were withdrawn by the Government. I find support for the view I have taken. In (1900) 2 Bom. LR. 536, it has been held that under Section 40, a Magistrate continues to exercise the same powers in successive local areas to which he may be transferred.