1. Heard Mr. Rakesh Kumar, learned counsel for the petitioner and the State. Though opposite party No. 2 has already appeared through Mr. Sheo Narain Singh and has filed counter-affidavit but, till the passing of the order he is not present in Court. No representation has been made on his behalf to adjourn this case.

2. The order of the Judicial Magistrate, 1st Class, Patna, dated 15.11.1997 passed in complaint case No. 1417 (M)/93 has been impugned by the petitioner, by reason of which the learned Magistrate has refused to expunge the evidence recorded in the Court of Judicial Magistrate, 2nd Class, Patna.

3. On the basis of the written complaint, dated 1.10.1993 cognizance was taken bv the Chief Judicial Magistrate on 14.12.1993 under Section 85(a) and (e) of the Employees State Insurance Act, 1948 (hereinafter referred to as the ESI Act). The case was transferred to the Court of Sri S.N. Singh, Judicial Magistrate, 1st Class, Patna, for issuance of summons on 21.3.1996, the substance of accusation was explained to the accused by the Judicial Magistrate, 1st Class and they pleaded not guilty. However, thereafter, the said Judicial Magistrate was transferred to another place and during the period of transfer of the case, the record of the case was ultimately transferred to the Court of Sri Deepak Kumar Singh, Judicial Magistrate, 2nd Class, Patna, where the trial of the case was commenced. It is stated that though the jurisdiction of the said Sri Deepak Kumar Singh, 2nd Class, Judicial Magistrate, was challenged on the ground that since the case was triable by the Court of Judicial Magistrate, 1st Class, he had no power to try the case, this submission was negatived. Three prosecution witnesses were examined and when the case was pending for adducing further evidence, the case was transferred to the Court of Sri A.K. Shrivastava, Judicial Magistrate, 1st Class, Patna, before this Court the petitioner filed a petition on 15.11.1997 stating that as because his case is triable by the Judicial Magistrate of 1st Class, the evidence recorded by Sri Deepak Kumar Singh, Judicial Magistrate of 2nd Class should be ignored and expunged from the records of the case. This prayer was turned down by the impugned order and, as such, the petitioner has approached this Court.

4. It is now well settled that, if, the Court, having no jurisdiction, tries a case, the entire trial is vitiated. Section 461 of the Code of Criminal Procedure lays down that if, any Magistrate, not being empowered by law in this behalf, tries an offender, his proceedings shall be void. Section 86(2) of the ESI Act contemplates that no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence under this Act. In this connection, sub-clause (b) of Section 26 of the Cr PC may be mentioned, which contemplates that any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by the High Court or any other Court by which such offence is shown in the First Schedule to be triable.

5. There cannot be two opinions that the provision as laid down under Section 86(2) of the ESI Act clearly indicates that any offence under this Act shall be tried by the Judicial Magistrate of the First Class or by a Metropolitan Magistrate. Thus, when the trial was taken up by the Judicial Magistrate of the 2nd Class and some witnesses were examined, though the Court had no jurisdiction, in my view, the entire proceeding before him becomes void. Reference, if, any, can be made the decision of this Court reported in 1990 (2) PLJR 298 and that of the Orissa High Court reported in 1977 Cr LJ 1390.

6. In such circumstances, in my view, when ultimately the case was transferred to Mr. A.K. Shrivastava, Judicial Magistrate, 1st Class, he should have allowed the prayer of the petitioner by expunging the evidence recorded in the Court of Sri