RAM CHARAN Vs. RESIDENTS OF SHAHABAD WARD BARAN

JUDGEMENT

(1.) THIS is a reference by the learned Additional Sessions Judge, Baran, dated 3-21956, and arises in the following circumstances: on 20-7-1955, an application for taking proceedings under Section 133 Cr. P. C. signed by several residents of Shahabad ward, Baran, was presented in the Court of the Sub-Divisional Magistrate, Baran, alleging that the working of the flour mill of Ram Charan was making considerable noise and the vibrations were damaging to the neighbouring buildings, and that its working caused physical discomfort, while the smoke of the engine affected the health of the public. The Sub-Divisional magistrate sent the application to the Police Station, Baran, for report. The police supported the applicants, whereupon the Sub-Divisional Magistrate made a conditional order under Section 133 Cr. P. C. on 22nd July, 1955, directing Ramcharan to remove the flour mill or if he objected so to do, to appear before him on 16th August, 1955, to show cause against the order. On 16th August, 1955, Ramcharan appeared, and wanted time which was granted to him till 30th August, 1955. On that day the Sub-Divisional Magistrate transferred the case to the Court of Magistrate. First Class; Baran. The learned magistrate, after recording evidence, made the order of the S. D. O. dated 22-71954, absolute. He also recorded an order under Section 140 directing Ram charan to remove the flour mill within ten days, and informed him that in case of disobedience he will be liable to penalty under Section 188 of the Indian Penal code. This order was passed on 28-11-1955. Ramcharan filed a revision, and the learned additional Sessions Judge has made a reference that the order of transfer of the case by the S. D. O. on 30-8-1955, to the Magistrate, First Class, was illegal, and the subsequent proceedings should be quashed as being without jurisdiction.

(2.) THE reference came before a learned Single Judge of this Court, and he has referred the case to a Division Bench in view of the divergent views of the High courts on this question. As mentioned in the reference, the view taken by the allahabad and Lahore High Courts is in support of the reference, while the view of the Calcutta and Patna High Courts was stated to be that the S. D. M. had jurisdiction to transfer the case at any stage of the proceedings, and in any case it was a mere irregularity which could be cured under Section 529 of the Code of criminal Procedure.

(3.) WE have heard Mr. Tyagi for Ramcharan and Mr. Chhabra, Dy. Government advocate, for the State. In our opinion the view taken by the Allahabad High Court in Bhola v. Lachman, AIR 1950 All 475 (A) appears to be sound for the reasons which follow. Section 192 Cr. P. C. , which is relied upon in support of the view that the Magistrate can transfer the case at any stage, authorises a District Magistrate and a Sub-Divisional Magistrate to transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. Sub-section (2) of that section further authorises the District Magistrate to empower any magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under the Code of Criminal Procedure to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly. It may be noted that a First Class Magistrate can only exercise the power if empowered by the District Magistrate, and further the said Magistrate can only exercise the power if empowered by the other Magistrate of the First, Second or third Class, who is competent under the Code to try the accused or to commit him for trial.