HARI SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a petition under Section 526 Cr. P. C. filed by Hari Singh for the transfer to some other court of a case which is pending against Hari Singh and two others under Section 326/34 I. P. C. in the Court of a Honorary Magistrate 1st Class at New Delhi.

(2.) It seems -that the case in which Hari Singh is involved as an accused is one of two cross cases, the other of which is based on a complaint filed by Hari Singh against certain persons who are prosecution witnesses against him under Sections 323/325/ 504 I. P. C. One of the grounds on which the transfer is sought is that Hari Singh's complaint was dismissed in default on 24-4-1957 when he had gone 4way to fetch his counsel. This dismissal is the subject of revision petition which is already pending in this Court, and it does not seem to me that it would be proper to go into the rights and wrongs of a matter already pending in a court in this way for the purpose of deciding whether it can be a ground (or transferring the case. The other allegations of partiality on the part of the learned Magistrate are denied by him and in any case do not amount very much.

(3.) A legal ground has however been raised in a supplementary petition filed after the original petition namely that the case being under Section 326 I. P. C. cannot be tried by a First Class Magistrate who has not been given special powers under Section 30 of the Criminal Procedure Code, Before the Criminal Procedure Code was amended by Act No. 26 of 1955 the amendments contained in which came into force on 1/1/1956, Section 30 empowered the Governments of certain States which included Delhi to invest the District Magistrate or any First Class Magistrate with power to try as a Magistrate all offences not punishable with death, and Section 34 empowered the Magistrate so invested to pass a sentence up to seven years' imprisonment. The effect of the amendments introduced in 1956 was that the Magistrate empowered under Section 30 could only try cases not punishable with a term of imprisonment exceeding 7 years. Section 28 remains unaltered. It reads: