SMT. SUSHILA GHOSH Vs. WAS DEB MUTREJA

JUDGEMENT

(1.) THIS criminal revision petition by Sushila Ghosh springs from a case instituted by her under Section 133 of the Criminal Procedure Code against Was Deb Mutreja and raises the question whether the provisions of Section 528 of the Code apply to such a case.

(2.) HOW this question arose between the parties can be stated in a few words. On 30th of March, 1966, Sushila Ghosh presented a petition under Section 133 of the Code before Shri P. Majumdar. the then District Magistrate, Tripura. The conditional order was made by the latter on 21 -4 -1966 and the respondent Was Deb was summoned by him to show cause against that order. Objections against the order were filed by Was Deb on 11 -5 -1966 but before any other step could be taken in the case, Shri P. Majumdar was transferred and succeeded by Shri S. M. Kanwar, and the latter, by his order dated 20th of September, 1966, transferred the case to the Sub -Divisional Magistrate, Sadar. The Sub -Divisional Magistrate had recorded only a part of the evidence by 5 -5 -1967 when Was Deb applied to the District Magistrate under Section 528 of the Code for withdrawing the case from the Sub -Divisional Magistrate and placing it either on his own file or making it over to some other competent Magistrate. The District Magistrate issued notice of that application of Sushila Ghosh for the next day, viz., 6 -5 -1967, and on that day he made an order withdrawing the case from the Sub -Divisional Magistrate and placing it on his own file. It is mentioned in the relevant order that the transfer was being made at the request of the counsel for the parties and for the reason that no effective steps had been taken by the Sub -Divisional Magistrate although a number of hearings had been fixed in the case. After the transfer order, dated 6 -5 -1967, statements of some witnesses were recorded by Shri A. Bhattacharjee, the Acting District Magistrate, when Shri S. M. Kanwar went on leave, and another two witnesses were examined by the latter after he joined back the office. For recording rest of the evidence, the case was fixed by him for 31st of August, 1967. However, one day before that date Sushila Ghosh moved the instant revision petition challenging the validity of the order dated 6 -5 -1967, by which the District Magistrate had withdrawn the case from the file of the Sub -Divisional Magistrate and had placed it on his own. It was alleged in the petition that all the proceedings that had taken place after 6 -5 -1967 were without jurisdiction and as such void. The prayer made was that the case should be sent back to the Sub -Divisional Magistrate of Sadar for disposal according to law.

(3.) SHRI Dutta submitted further that the order of transfer dated 6 -5 -1967 had been made at the request of the parties' counsel and as such the revision petition merited dismissal on that score alone. Shri N. L. Choudhury conceded that the parties' counsel had agreed to the transfer of the case on 6 -5 -1967, but that fact, he urged, could not confer jurisdiction on the transferee Magistrate, namely, the District Magistrate, Tripura to deal with the case. I agree that if the transfer order dated 6 -5 -1967 is bad in law, then the mere consent of the parties' counsel to the transfer of the case could not confer jurisdiction on the District Magistrate to deal with it. A joint prayer by the parties to a case that it should be tried by a court cannot confer jurisdiction on that Court, if in terms of the law that Court cannot have jurisdiction in the matter. Hence, the objection of Shri Dutta against the maintainability of the petition founded on the request made by the present petitioner's counsel to the transfer of the case on 6 -5 -1967 cannot by itself foil the revision petition though it may be correct that in the context of that request the challenge to the transfer order may not stand the test of the principles of ethics in the Gandhian sense.