MAHAMMAD ABBUS ALI Vs. INDRA PRAKASH KAPOOR

JUDGEMENT

(1.) This revisional application is at the instance of the complainant, Mahammad Abbus Ali for directing Sri S.N. Basu, Magistrate, 1st Class, Sealdah, District 24 Paraganas to try and dispose of case No. C. 1905 of 1961/ T. R. 782 of 1961, under Section 526 Sub-section (1) Clause (d), (e), (i) of the Code of Criminal Procedure. It is stated that the place where the offence under Section 420 of the Indian Penal Code is alleged to have taken place is at 8, Lower Circular Road, Calcutta. It is admittedly within the Original jurisdiction of this Court. Ordinarily this case ought to have, therefore, been tried in a court of a Presidency Magistrate at Calcutta on a complaint being filed before the Chief Presidency Magistrate. It is stated by the petitioner that after the evidence was gone into in this case by the learned Magistrate it came to his (Petitioner's) notice that the learned Magistrate had no territorial jurisdiction to try the case. Accordingly it is prayed that for the general convenience of the parties, the Magistrate should be asked to try the case himself although he cannot have seisin of the case.

(2.) The relevant portion of Section 526 runs as follows: (1) Whenever it is made to appear to the High Court ...... (d) that an order under this section will tend to the general convenience of the parties or witnesses, or (e) that such an order is expedient for the ends of Justice, or is required by any provision of this Code; it may order (f) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;.........." It appears to us prima facie that as the evidence has been gone into in a case of 1961 and the stage of the trial is at the point of completion, we consider that an order under Section 526(1) should be passed asking the Magistrate to try the case himself on which he has apparently no territorial jurisdiction.

(3.) Mr. Amiyalal Chatterjee appealing for the accused opposite party has urged before us that unless any question of prejudice or any other circumstance arises the provisions of Section 526 (1) (d) (i) cannot be invoked, and as such in a case like this where the learned Magistrate had no territorial jurisdiction, this part of Section 526 is inapplicable. The proper course, according to him, is that the complainant should withdraw the complaint and file it before a Court having jurisdiction to try the offence. In this connection he has referred us to a Full Bench decision of the Kerala High Court reported in State v. Pokker. The Kerala High Court decided inter alia that Section 346(1) Criminal Procedure Code has no reference to cases of absence of territorial jurisdiction. In such cases what the Magistrate concerned should do is to act under Section 201, Criminal Procedure Code. In such a case it cannot be transferred under Section 526(1). Section 346, Criminal Procedure Code provides for the procedure of State Magistrate in cases which he cannot dispose of. It runs as follows: