ASWINI KUMAR DAS Vs. RAMAN CHANDRA MOHANTA

JUDGEMENT

(1.) THE respondent in this case filed a complaint before Shri S.N. Roy Cboudhury, the S.D.M. of Dharmanagar against the petitioner Aswini Kumar Das and another Nalini Kumar Das accusing them of criminal trespass and assault and against Nalini Kumar Das further for outraging the, modesty of complainant's sister -in -law. The S.D.M. took cognizance of the case and transferred the case to a second class Magistrate Shri S.R. Chakravorty. He dealt with the case for sometime and examined the complainant and 2 P. Ws. and while the matter was pending before him for further trial, Shri A. Bhattacherjee who had become S.D.M. by then withdrew the case to his own file and after the examination of further P. Ws. he framed charges under Sections 447 and 352 against the petitioner and Nalini Kumar Das and a further charge under Section 354 Indian Penal Code against Nalini Kumar Das.

(2.) ON 10 -3 -60, Sri A. Bhattacharjee passed an order transferring the case to the file of another first class magistrate Shri W.U. Mulla for disposal. We are unable to know the reasons for this transfer. All that remained was to hear arguments and to deliver judgment and the magistrate who should normally do this is the magistrate who tried the case. Still Shri A. Bhattieharjee who was not empowered to transfer the case under Section 192 Criminal Procedure Code transferred it to Shri W.U. Mulla for disposal, Shri W.U. Mulla heard arguments on 15 -3 -60 and delivered judgment on 31 -3 -60 convicting the petitioner and Nalini Kamar Das and sentencing the petitioner to pay a fine of Rs. 15/ - on each of the two charges under Sections 447 and 352 and Nalini Kumar Das Rs. 15/ - under each of the three charges under Sections 447 352 and 354 Indian Penal Code.

(3.) THE main contention raised by the petitioner in this revision petition, which was also raised before the Sessions Judge but negatived by him, was that Shri A. Bhattacharjee had no power to transfer the case after the closing of the oral evidence to Shri W.U. Mulla for hearing arguments and pronouncing judgment and that all subsequent proceedings before Shri W.U. Mulla were without jurisdiction and hence, the conviction and sentence of the petitioner cannot stand. The learned Sessions Judge found that Shri A. Bhattacharjee had no power to transfer the case, but he was of opinion that the said irregularity would be cured by Section 529, Clause 2 Criminal Procedure Code and that the subsequent proceedings before Shri W.U. Mulla will not be vitiated. There is no Clause 2 for Section 529 Criminal Procedure Code. Evidently the Sessions Judge meant Section 529 (f) which provides that if any magistrate not empowered by law to transfer a case under Section 192 Criminal Procedure Code erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Perhaps, the learned Sessions Judge was of opinion that Shri A. Bhattacharjee transferred this case under Section 192, Criminal Procedure Code erroneously in good faith. But his order does not show that he felt that the case was transferred under Section 192 or that it was done erroneously in good faith.