MUNNALAL DWARKADAS Vs. P. BANERJEE

JUDGEMENT

(1.) THE petitioner baa obtained this rule against an order passed by the Additional District Magistrate of Howrah by which he has withdrawn a certain case from one learned Magistrate to his file and transferred it to the file of another Magistrate. The petitioner contends that this order of transfer is not justified and seeks to set aside the order.

(2.) ON behalf of the opposite party which is the Municipality of Howrah, it is contended that this Court has no jurisdiction to interfere with the order passed by the learned Magistrate under 8. 628, Criminal P. C, as this would virtually amount to an order of transfer being made under 8. 626 of the said Code. It was pointed out that sitting singly this Court cannot pass an order of transfer under 8. 626, Criminal P. C. Secondly, it was contended that this Court has no power to set aside the order of the learned Additional District Magistrate because the same relief may be obtained by recourse to the specific provisions contained in Section 626, Criminal P. C. It is contended that if the parties wanted the case to be transferred from the file of the Magistrate to which it has now been transferred, they should apply under the provisions of Section 526 of the said Code which specifically provides for this relief and they should not be allowed to get this relief by having recourse to the provisions of Section 439 of the Code. Lastly it is contended that on the merits the learned Magistrate has not committed any error in transferring the case.

(3.) NEXT , I would point out that even if it be held that the powers of the revisional Court are limited by the provisions contained in Section 489 U) it cannot be said that it has no power to set aside the order passed by the learned Magistrate in this case. In accordance with the provisions of 8, 439 (l) the revisional Court may exercise any of the powers coif red on a Court of Appeal by 8. 423, Criminal P. C. Now, Section 423 says that the appellate Court may exercise certain powers in the case of an order of acquittal and it may exercise certain other powers in an appeal from a conviction. These powers are mentioned in Sub -section (1)(a) and (b) of Section 423. Clause (c) of t Section 423 (l) says that in an appeal from any other order the appellate Court may alter or reverse snob order. Now, in the present case the order is not one of conviction or acquittal but it cornea within the purview of the words "any other order". That being so, this Court can alter or reverse such order under Section 423 (l)(c), Criminal P. 0. read with Section 439 (l) of the same Code. This view was taken in the case of Raghunatha Pandaram v. Emperor, 26 Mad. 130 : (2 weir 689). In the ease of 7. G. B, M, Vellaohami Chettiyar v. L. M. B, Mungappa Chettyar, 84 Cri. L. J. 882 : (A. I. R, 1933 CAL 89) a different view was taken from that which was taken in the case of Ashu v. Maung Po Kha & Ors., 1 Bang. 682 : (A.I.R. (ll) 1924 Bang. 100). It was held there that the High Court has power under 8. 439 of the Code to alter or revise an order transferring a case mada under 8. 526. It was pointed out that the High Court has this power by virtue of the provisions of Section 428 (1)(c) of the Code.