MUKTI NATH JHA Vs. STATE

JUDGEMENT

(1.) By this application under sections 407/482 of the Code of Criminal Procedure the present petitioner has challenged the order dated 28.5.2002 passed by Sri B.Das, the learned Chief Judicial Magistrate, Howrah under section 410 of the Code in Crl. Misc. Petition No. 391 of 2001. By the said order the learned Magistrate disallowed the prayer of the petitioner-de facto complainant regarding transfer of two cases, viz. G.R.No. 2907 of 2001 and G.R.No. 2943 of 2001 from the 4th Court of Judicial Magistrate to some other Court. The reason or ground of such transfer was that in a subsequent case instituted by the present opposite parties against the present petitioner which was numbered as 579C of 1998, the present petitioner was convicted by the same learned Magistrate of the 4th Court on 22.10.2001. The second ground is that the present application for transfer of the case on the ground of biasness of the learned Magistrate will also bias the learned Magistrate.

(2.) In course of hearing of this application the learned Counsel for the petitioner contended that the learned Chief Judicial Magistrate while passing the impugned order did not consider the abovementioned grounds and accordingly illegally rejected the prayer for transfer of the case.

(3.) Mr. Roy, the learned Counsel appearing on behalf of the State, however, challenged the present application mainly on the ground that the application under section 407 of the Code before this Court is not maintainable in view of the bar imposed by the proviso to section 407(2) of the Code inasmuch as no application was filed before the learned Sessions Judge for transfer of the case. It is also contended that since there is a specific provision in the Code itself, the provision of section 482 of the Code is not applicable in the present case. Mr. Roy also contended that only on the ground of biasness a case should not be transferred from one Court to another.