NAZIR KHAN Vs. MUNIF KHAN

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution to call up and quash the order of the Sub-divisional Officer dated 16th May, 1960, transferring the case from the Court of the Munsif Magistrate to a Bench of the Gram Cutcherry.

(2.) SHORTLY put, the facts are these: On 24th September, 1959, the petitioner, Nazir Khan, filed a complaint petition before the Sub-divisional Officer, Samastipur, for prosecution of the opposite party for the offences under Sections 323, 379 and 225 of the Penal Code on the allegations that on 23rd September, 1959, Munif Khan and Mohit Khan, opposite parties, were cutting stealthily sugarcane crop standing on his land, and, on seeing that, the petitioner caught hold of Munif Khan, the other accused Mohit Khan, having managed to escape, that when he was taking Munif under arrest, Munif raised alarm, whereupon the other accused (Mohit) came back and asked the petitioner to release Munif from his custody, which he declined to do, and that thereupon Mobit belaboured the petitioner with lathi and Munif also assaulted him with lathi and he fell down on the ground and the two accused fled away, carrying with them the cut sugarcane. The petitioner was examined on solemn affirmation by the Sub-divisional Officer on 24th September, 1959. It is manifest that there are three direct allegations in the petition of complaint; (1) the accused opposite party assaulted the petitioner with lathis which is an offence under Section 323; (2) Munif was in lawful custody of the petitioner and was lawfully detained for the commission of the offence of theft and the other accused, Mohit, rescued him from his custody, this clearly being an offence cognizable under Section 225 of the Penal Code and (3) both the accused later committed the offence of removing the sugarcane belonging to the petitioner, and this constituted the offence under Section 379. Thus, the allegations disclosed three distinct offences under Sections 323, 379 and 225 of the Penal Code. The learned Sub-divisional Officer, however, took cognizance of only two offences under Sections 323 and 379 and transferred the case to Mr. M. P. Tandan for disposal. Subsequently, the case was transferred to the Court of Mr. J. Nath, Munsif Magistrate. The Munsif Magistrate framed charges against the accused under Sections 323, 379 and 225. In other words, he framed charge even for the offence under Section 225, though no cognizance of this offence had been taken by the Sub-divisional Officer. The case afterwards was again transferred to the file of Mr. T. R, Bajaj, another Munsif Magistrate. The trial commenced in his Court and was concluded and arguments were heard and a date was set down for judgment. In the meantime, after the conclusion of the argument, the accused filed written statement, wherein they took the plea that their trial by the Munsif Magistrate was incompetent and illegal for want of jurisdiction, inasmuch as, there was a Gram Cutcherry in the village, and the offences under Sections 323 and 379 were cognizable and triable by a bench of the-Gram Cutcherry. It is well to remember that the offence under Section 225 is not triable by a bench of the Gram Cutcherry. The objection to the jurisdiction of the Magistrate by the accused was obviously based on the assumption that the Munsif Magistrate has no jurisdiction to frame a charge against them under Section 225, since the Sub-divisional Officer had not thought dt proper to take cognizance of the offence. The learned Munsif Magistrate gave effect to this objection of the accused. Relying upon a decision of this Court in Jag-dish Yadav v. State of Bihar, 1960 Pat LR 61, he held that he had no jurisdiction to try the case and that the case should have been transferred to the Giaov Cutcherry under Section 69 of the Bihar Panehayat Raj Act, Accordingly, by his order dated 25-4-1960, he sent the record of the case back to the Sub-divisional Officer for necessary orders. The learned Sub-divisional Officer concurred with the opinion of the Munsif Magistrate, and by his order dated 16-5-1960 he transferred the case to the Gram Cutcherry concerned for disposal. It is this order of the Sub-divisional Officer which is sought to be annulled.