BISHWA NATH PRASAD Vs. YASHODA NANDAN SINHA

JUDGEMENT

(1.) This revision application is directed against the order dated 8-4-1967 passed by the Sub-divisional Magistrate, Giridih, in a case instituted under Section 500 of the Indian Penal Code.

(2.) On 17-11-1966, Bishwa Nath Pra-sad, Petitioner, filed a complaint before the Sub-Divisional Officer, Giridih, against Shri Yashoda Nandan Sinha, Subhash Chandra Sarkar, Editor, Searchlight and Awadhesh Kumar Tiwary, publisher and printer, Searchlight. The learned Subdivisional Magistrate examined the complainant on S. A. and summoned the Editor and publisher of Searchlight. As against Opposite Party Yashoda Nandan Sinha, he referred the matter for an enquiry by Shri J. Das, Magistrate, 1st Class. The Enquiring Magistrate submitted his report on 5-12-66 to the effect that a prima facie case was made out against Yashoda Nandan Sinha as well. On 6-12-1966, Yashoda Nandan Sinha moved the Sessions Judge against the enquiry report and the learned Sessions Judge stayed further proceedings in the court of the Sub-divisional Magistrate. Consequently, no order could be passed on receipt of the report of the Enquiring Magistrate. Ultimately, the learned Sessions Judge disposed of the matter rejecting the petition of Yashoda Nandan Sinha on 21-3-67 with the following observations:--

(3.) The contention of learned Counsel for the petitioner is that the learned Magistrate failed to exercise his jurisdiction in not passing any order on the report of the Enquiring Magistrate. According to the separation scheme, after taking cognizance, the Sub-divisional Magistrate is to transfer a criminal case to the file of a Munsif Magistrate or a Judicial Magistrate. It is well settled that cognizance is taken of an offence and not of an accused, that is to say when cognizance of the offence was taken in this case, though the order for issue of summons was against some of the accused only, the learned Magistrate should have transferred the case to the file of another Magistrate, Judicial or Munsif, for trial. This irregularity in the procedure was noticed by the learned Sessions Judge and he rightly directed the learned Sub-divisional Magistrate to transfer the case immediately to a Munsif Magistrate for trial. Because by the order of the learned Sessions Judge, further proceedings in the matter were stayed, the learned Sub-divisional officer could not have passed any order earlier regarding the report of the Enquiry Officer either accepting or rejecting it. In the order of the learned Sessions Judge, there was a clear direction to transfer the case immediately to a Munsif Magistrate and, in obedience to that order, the learned Sub-divisional Officer passed the impugned order. Therefore, no irregularity has been committed therein. He did not either accept the report or reject it and the whole case was transferred to the Munsif Magistrate. It was that Magistrate who could consider the report of the Enquiry Officer and pass necessary order. It was not obligatory for the learned Sub-divisional Magistrate to pass order before transferring the case. There is no provision in law compelling a Magistrate to pass such order before transferring a case to the Magistrate.