JADAB CHANDRA SARKAR Vs. SASHI MOHAN DEB BARMA

JUDGEMENT

(1.) THIS is an application in revision against the order of Shri W. U. Mulla, Magistrate first class dated 22 -2 -1961 summoning 23 persons including the petitioner under Section 204 Cr.P.C. to take their trial under Section 447 427 143 and 109, I. P. C.

(2.) THIS case arose out of a complaint filed by the respondent on 184 -1960 against 35 persons Including the petitioner under Section 147 379 and 427 I.P.C. before the Subdivision Magistrate, Sadar. The S. D. M. forwarded the complaint to Shri H. R. Choudhury Magistrate first class for disposal. Shri H. R. Choudhury Magistrate took the sworn statement of the respondent under Section 200 Cr.P.C. on 194 -1960 and he sent the complaint petition to the Circle Officer who is a Magistrate for enquiry and report. The Circle Officer appears to have submitted a report on 4 -6 -1960 which was against the complainant's case. Then the respondent appears to have moved the S. D. M. for having this case taken up along with certain other connected cases in the same Court. The S. D. M. called for the records from the Magistrate. But after perusing the records, he passed an order on 9 -6 -1960 that as there was no application for transfer under Section 528 Cr.P.C. he should net interfere at that stage as the matter was in the state of enquiry under Section 202 Cr.P.C. Than the matter came up again before Shri H. R. Choudhury and the respondent filed a naraji petition challenging the report of the Circle Officer. But Shri H. R. Choudhury was unable to deal with the case as he was engaged in Treasury work.

(3.) WHAT he has pointed out in the revision petition is that the evidence taken by the Magistrate Shri W. U. Mulla did not warrant the issue of summons to the 23 persons, that the Circle Officer's report was also against the complaint and further that the complainant's sworn statement itself did not refer to the 23 persons against whom summonses were Issued and that therefore there was no prima facie case for issuing the process. In addition to this, it was argued before me that the S. D. M. had taken cognizance of this case on 18 -4 -1960 and had transferred the case without taking the sworn statement of the complainant to Shri H..R. Choudhury under Section 192 Cr.P.C. that this was done illegally and against the provisions of Section 200, that Shri H. R. Choudhury, therefore, did not get season of the case as required under the Criminal Procedure Code, that he cannot have taken the sworn statement of the respondent, that even subsequently, the S. D, M. did not have the authority under Section 528(2) Cr P C. to withdraw the case to his own file and to transfer it to Shri W. U. Mulla on 24 -1 -1961 and that therefore the entire, proceedings before. Shri W. U. Mulla were without jurisdiction and should be quashed.