Raj Mohan Roy Chowdh... v. Prosunno Chandra Cha...

The second party in these proceedings obtained from the Criminal Division Bench of this Court, a rule in the following terms:— “A rule is granted to the District Magistrate and also on the opposite party to show cause why the order under sec. 145, C. Cr. P., should not be set aside as without jurisdiction on the ground that the case was not properly before Babu Kali Kumar Boy Chowdhuri (the Deputy Magistrate who made the order complained against) by an order issued by a Magistrate competent to transfer that case to him.”

The circumstances under which the District Magistrate made that order are set forth in the second paragraph of the petition of the second party which runs thus: “The second party then moved the District Magistrate of Barisal apparently under sec. 528, Cr. P. C, for the transfer of the case to his own file for various reasons, and the case was accordingly transferred to the file of the senior Deputy Magistrate with instruction to try it himself or make it over to another Magistrate, and the case was made over by the senior Deputy Magistrate to Babu Kali Kumar Roy Chow dhuri for trial.”

The order, therefore, which was made by the District Magistrate was made, judging from the petition itself, at the instance of the second party.

It is now contended that the senior Deputy Magistrate to whom the case was transferred by the District Magistrate had no power to transfer it to Babu Kali Kumar Roy Chowdhuri, and as that transfer was made under sec. 192(2) it is urged that the District Magistrate ought to have specified the Magistrate to whom the senior Deputy Magistrate could transfer the case.

Supposing that the present matter falls under sec. 192(2) it appears to us that any mistake on the part of the senior Deputy Magistrate in transferring the case to another Magistrate, namely, Babu Kali Kumar Hoy Chowdhuri, is cured by the provisions of sec. 529(f) which declares that “if any Magistrate not empowered by law to transfer a case under sec. 192 erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” Assuming then that the senior Deputy Magistrate had not the power to make the transfer but did so erroneously in good faith, and his good faith is not impugned, the order made by him cannot be aside merely on the ground that he had no power. But it is contended that the Magistrate who made the order under sec. 145 was not competent to make it inasmuch as the subject-matter of dispute was not within his local jurisdiction and that, therefore, the case came within sec. 530(j). In our opinion sec. 530(j) refers to a totally different state of things,.namely, where a Magistrate is not competent by virtue of the position he holds or powers vested in him to try a case of the character referred to in sec. 145. From the materials before us there does not appear that Babu Kali Kumar Hoy Chowdhuri was not vested with the jurisdiction or was not a first-class Magistrate competent to try the case under sec. 145.

We therefore think that the provisions of sec. 530(j) do not apply at all to the case. On the other hand it appears from the petition of motion that the order of transfer was made under sec. 528. The proceedings therefore are not void.

The rule is accordingly discharged.

H.R.C

Ride discharged.