WALI MAHAMMAD Vs. MANIK CHANDRA RAUL

JUDGEMENT

(1.) THE opposite party Manik Chandra Raul filed a petition of complaint before a Union Bench against the present petitioner and one Sk. Shibu alleging that when the complainant was working In the field, Sk. Shibu, under the orders of the petitioner, tied the complainant with a napkin and then both assaulted him as a result of which one tooth of the complainant was dislodged. After process had been issued against the accused and when the case was pending before the Union Bench, an application was made by the petitioner before the Sub -divisional Magistrate praying that under the provisions of section 66 of the Bengal Village Self -Government Act the Sub -divisional Magistrate should transfer the case to a Court subordinate to himself. The learned Magistrate has rejected this petition on the ground that this is premature. Against this order of the learned Magistrate the petitioner filed an application asking this Court for exercise of its powers under section 439 of the Code of Criminal Procedure.

(2.) THE first question that arises is whether this Court can interfere with the order passed by the Sub -divisional Magistrate rejecting the prayer for transfer, In exercise of its powers under section 439 of the Code of Criminal Procedure. In the case of Sitalapada Sarkar v. Pulin Behari Gure 42 Cal WN 1068 (A) this Court held that in view of the provisions of section 93 and 71 of the Bengal Village Self -Government Act it was not open to this Court to revise under the provisions of section 439 of the Code of Criminal Procedure an order passed by a learned Magistrate. It appears to us that it is not necessary to consider in the present case the effect of Section 93 of the Bengal Village Self -Government Act. Section 93 provides that the Code of Criminal Procedure shall not apply to any trial, suit or proceeding before a union bench or a union court. The order passed by the learned Sub -divisional Magistrate is certainly connected with a proceeding before a union bench but the bar of section 93 can, hardly be said applicable to the order passed by the Magistrate,

(3.) THE question remains whether it would be proper for us to interfere, in the circumstance of this case, with the order passed by the learned Magistrate in exercise of our superintending juris -diction under Article 227 of the Constitution. The principal ground on which transfer was sought was that the complainant worked as a servant under the President of the Union Bench and that the President of the Union Bench had, in fact, deposed in favour of the complainant in an enquiry held by a police inspector. These allegations appear to have been made before the learned Sub -divisional Magistrate. The learned Sub -divisional Magistrate has not expressed any opinion as -regards the correctness of these, but in view of the fact that on the connected record before the Magistrate there appears to be no. application on behalf of the complainant challenging the correctness of these statements, we think it proper to proceed on the basis that the statements are substantially true. We think, in the circumstances of the case, that it will be grossly unfair if the case is allowed to continue before the Union Bench and it is proper for us in exercise of our superintending jurisdiction to order that the case be transferred to the Sub -divisional Magistrate, Mid -napore, for trial by himself or by some other Magistrate to whom he may transfer the case. Debabrata Mookerjee, J.