RAM PRASAD MANGER Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THIS revision against the appellate judgment of the Sessions Judge, Gangtok, confirming the judgment passed by the District Magistrate, South Sikkim. whereby the latter has convicted the petitioner under Sections 279/337, Indian penal Code and has sentenced him to pay a fine of Rs. 200/-and in defualt to undergo simple imprisonment for one month, involves only one question, very seriously pressed by Mr. B. C. Sharma, the learned Counsel for the petitioner. The question is whether a trial by a Court of a case which has been transferred thereto from another Court by an order of transfer passed by a Sessions Judge under Section 528 (1-C) of the Code of Criminal Procedure, 1898, is vitiated, if the order of transfer, was passed without "an applications made to him in this behalf" as required by the provisions of Section 528 (1-C)?

(2.) THE case was originally instituted in the Court of the District Magistrate. South Sikkim, who after the receipt of the charge-sheet, transferred the case to the Judicial Magistrate for trial. The Judicial Magistrate proceeded with the trial to the stage when the prosecution evidence was closed, the accused was also examined under Section 342 and the case was posted for examination of defence witness and argument. At this stage, it appears, the Sessions Judge passed a general order whereby it was ordered that all cases triable summarily and pending in the courts of the Judicial Magistrate were to be transferred to the Courts of the District Magistrate, the reason obviously being that the former was not, while the latter was, empowered to try cases summarily. After the case was so transferred to the Court of the District Magistrate, the latter examined one defence witness, heard arguments and by his judgment convicted and sentenced the petitioner as stated above. An appeal against that judgment to the Sessions Judge having failed, the petitioner has come up in revision.

(3.) MR. Sharma for the petitioner, has contended that the order of transfer was illegal and, therefore, the trial by the Court of the District Magistrate, to which the case was so illegally transferred, was also illegal. Mr. N. B, Kharga, the learned Public Prosecutor has, however, urged that even assuming that the order of transfer was not in accordance with the provisions of law, the transferee Court, i. e. , the Court of the District Magistrate, being otherwise fully competent and having perfect jurisdiction to try the case, the trial does not stand vitiated and cannot be assailed on that account.