SAIT KASTURI CHAND Vs. ADDAGALLA VAIKUNTAM

JUDGEMENT

(1.) The complainant in this case gave a complaint under Secs.406 and 409, I.P.C. to the Joint Magistrate of Narsapur to the effect that he had pledged jewels with certain Marwari bankers (the petitioners in this Court) and that when he redeemed the jewels they were found to weigh 35 tolas as against 47 tolas entrusted. The Joint Magistrate, after recording the sworn statement of the complainant under Section 200 of the Criminal Procedure Code, came to the conclusion that the present petitioners were not bankers and that the offence disclosed by the complaint was one under Section 406, I.P.C., which is triable by a Second Class Magistrate and not one punishable under S- 409, I.P.C., which" is triable only by a First Class Magistrate. He therefore exercised his powers tinder Section 192 of the Code of Criminal Procedure and transferred the case to the Stationary Sub-Magistrate of Narsapur for disposal. The Stationary Sub-Magistrate, instead of proceeding with the case under Section 204 of the Criminal Procedure Code, referred the matter to the Police for investigation under Section 202 of the Criminal Procedure Code, and upon the Police report the Stationary Sub-Magistrate dismissed the case under Section 203 of the Criminal Procedure Code. The complainant was not satisfied with that order and took the matter in revision to the Sessions Judge of West Godavari, who set aside the order of dismissal on the ground that the Stationary Sub- Magistrate had no jurisdiction to take action under Section 202 of the Criminal Procedure Code.

(2.) Section 202 of the Criminal Procedure Code makes express provision for action under that section in cases transferred to a Magistrate under Section 192 of the Criminal Procedure Code; but if that stage had already been passed by the Magistrate who took cognizance of the case, then it appears clear to me that there cannot be any enquiry under Section 202 of the Criminal Procedure Code For example, if the Magistrate to whom a case is transferred always has the power under Section 202 of the Criminal Procedure Code to direct the Police to make an investigation, it would mean that he has power under that section to revise or review the orders of the Magistrate who transferred the case to him. if that Magistrate himself had already taken action under Section 202 and satisfied himself that there were sufficient grounds for proceeding with the case. The question whether the Stationary Sub-Magistrate had jurisdiction or not to order an investigation under Section 202 of the Criminal Procedure Code would therefore depend upon whether the Joint Magistrate had or had not passed beyond that stage when he transferred the case to the Stationary Sub-Magistrate,

(3.) The mere fact that the Joint Magistrate transferred the case to the Stationary Sub- Magistrate is itself no indication of the stage which the Magistrate taking cognizance had reached; because under Section 200 he can transfer the case even before the sworn, statement is taken. The wording of Section 200 of the Criminal Procedure Code is so wide as to make it permissible for a Magistrate taking cognizance of a case to transfer it at any stage. Only the Magistrate who took cognizance is in a position to say definitely whether he considered, in the words of Section 204 of the Criminal Procedure Code, that there was sufficient ground for proceeding. In the absence of an opinion by that Magistrate (I do not think it will be fair to ask that Magistrate after such a lapse of time to try to recollect what his opinion was then), we have to Judge of the Magistrate's intention--if that is possible--by the order which he passed. It is argued for the complainant that the mere fact that the Magistrate said that he took the case on file itself Indicates that he did not think that it was a case which necessitated investigation or enquiry under Section 202 of the Criminal Procedure Code. I am not however sure that that is so. Taking on file is not an expression found in the Code, and I do not think that it has any precise meaning even in magisterial usage. The Joint Magistrate may have thought that he could not transfer the case to the file of the Stationary Sub- Magistrate unless he took the case on his own file; and so it may well be that he transferred the case even at the stage of taking of cognizance under Section 200 of the Criminal Procedure Code. If so, it was open to the Stationary Sub-Magistrate to order an enquiry under Section 202 of the Criminal Procedure Code.