N BAKSI Vs. MYUNUS

JUDGEMENT

(1.) This is an application for transfer of a complaint case pending before the District. Magistrate of Patna to the Munsif Magtstrate at Bhagalpore. The petitioner is Mr. N. Bakshi, Commissioner of the Patna Division, and the-opposite party is Mr. Yunus; Barrister-at Law, said to be proprietor of a daily Patna Times. It is alleged in 3 & 5-11-1946 issues of the daily, a defamatory letter was published relating to Mr. Bakshi, in his official capacity, as a. Commissioner. Mr. Bakshi filed a complaint under Section 500, Indian Penal Code on & 2-1947 in the Court of the District Magistrate of Patna against the printer, the publisher, and the editor of the paper. The District Magistrate issued processes against those people summoning them to stand (their trial under the section. The accused per-sons of that case moved this Court for transfer out of the district of Patna, and Meredith J. directed transfer of the case to the file of the Munsif-Magistrate at Bhagalpore where the case is pending trial. This petition of complaint contains certain allegations suggesting that Mr. Yunus was "also implicated in the (publication of the defamatory matter, but stated that, as at that time the petitioner had no sufficient materials before him to establish iris connection, the complainant bad refrained from complaining against him. It is alleged that later, early in the month of May, in pursuance of a search under a warrant issued by the District Magistrate of Patna, discovery of certain documents had been made, which, according to the complainant, furnished sufficient proof to connect Mr. Yunus with the publication. This led the petitioner to file a complaint against Mr. Yunus on 19-5-1947, and the District Magistrate having taken cognisance of the -offence has issued process against Mr. Yunus. Thereupon Mr. Bakshi has moved this Court for transfer of this case to the same Court before whom is pending the defamation case started earlier against the editor, the printer and the publisher of the paper so that multiplicity of proceedings be avoided and all the accused persons may be tried together in one trial.

(2.) This petition is opposed on the only ground that the District Magistrate of Patna after transfer of the first defamation case ceased to have any jurisdiction over the offence and his order issuing process against Mr. Yunus on the petition of complaint is without jurisdiction. In this view of the matter, it is contended that there is no case which can be directed by this Court to be transferred. The submission of the opposite party is that when a Magistrate itakes cognizance of an offence he takes cognisance of the offence as a whole, that is to say, not only against the persons named as offenders, but also against anybody who might, in any circumstances, be found to have committed the offence, and further that after such cognizance is taken, if the case is transferred under Section 192, Criminal P.C. whether the transfer is made by the Magistrate (district or sub-divisional) taking cognizance or by the direction of the High Court, the Magistrate to whom the case is transferred acquired seisin of the whole offence in the sense. that it is he and he alone who could put on trial any other offender than those who were named as accused in the petition of complaint; so long &s he has seisin of the case and till it terminates before him, no other Magistrate can take fresh cognisance against any other person and try him. The learned Advocate-General who appears for the petitioner, on the other hand, contends that this rule cannot be of universal application as an absolute rule of law, and does no apply, particularly to such cases in which the transferee Magistrate will have no power to take cognisance of an offence under Section 190, Criminal P.C. He submits that the power to take cognisance of any offence under any one of the three ways mentioned in the section is a statutory power and cannot be conferred upon the transferee Magistrate by the mere fact of the case, as it stands against some named offenders, having been transferred to him. Lastly, he submits that in any view of the matter, the offence of defamation, as in the present case, being one whichcannot be taken cognizance of by any Court without a complaint in that behalf preferred by the person aggrieved by the offence, the transferee Magistrate can have no power to take cognizance of the off once against Mr. Yunus against whom there was no complaint at the time when the transfer was made and that he should be equally powerless even if a petition of complaint against Mr. Yunus is filed before him by the aggrieved person, namely, Mr. Bakshi, as he is not a Magistrate empowered in this behalf within the meaning of Section 190 of the Code.

(3.) Mr. Yunus in support of his arguments, and by way of repudiating the contentions of the learned Advocate General, has cited a number of authorities, and urges that there is a consensus of opinion that the transferee Magistrate acquires all necessary powers in order to enable himself to take cognizance of the offence even thdugh he is not one of the Magistrates having the statutory power of taking cognizance under Section 190 of the Code. The main aspect of Mr. Yunus's argument is that either the Magistrate as power to take cognisance of an offence under Section 190 or he acquires it by an order of transfer made under Section 192 of the Code; or made under the direction of the High Court, no matter whether the person proposed that proceeded against by the transferee Magistrate has been named as. an accused in the petition of complaint or not