A transfer of a case by a Magistrate who has not taken cognizance of it is not curable under Section 529 of the Criminal Procedure Code unless it was done erroneously and in good faith.

( 1 ) THIS is a petition for setting aside an order of transfer of a case, purporting to be under Section 192, Criminal P. C.

( 2 ) THE case concerned was transferred under the following circumstances: On 7-11-1952, Mr. P. C. Bala, Magistrates 1st class, Bankura, took cognizance of the case and adjourned it to the 13th. Mr. Eala not being available on the last mentioned date, another 1st class Magistrate, Mr. Moitra, dealt with the General File and transferred the case to his own file, although he had not taken cognizance of the case. Therefore, the actual trial commenced and proceeded before Mr. Moitra. It is this order of Mr. Moitra transferring the case to his own file that is sought to be set aside by this application.

( 3 ) SECTION 192 is in these terms :"192. (1) Any Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. (2) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly. "it is clear from the terms of the section that the jurisdiction of any of the Magistrates mentioned in it to transfer a case to some other Magistrate is founded upon the former having taken cognizance of the case. It is common case that Mr. Moitra, not having taken cognizance of the case, had no power under the section to transfer it to his own file. The question, therefore, is whether the transfer and the subsequent proceedings before him were nevertheless valid by reason of the provisions of Section 529 of the Code. The material part of Section 529 is as follows :"if any Magistrate not empowered by law to do any of the following things, namely: (f) to transfer a case under Section 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. "it would seem, therefore, that want of jurisdiction to transfer a case under Section 192, by reason of the transferring Magistrate not having taken cognizance of the case, would not render invalid the subsequent proceedings before the transferee Magistrate, provided it is shown that the transfer concerned was made erroneously and in good faith.

( 4 ) THERE has been a fair amount of case-law on the subject, A recent decision of a Division Bench in -- 'sm. Tulsibala Rakshit v. N. N. Ghosal', was cited to us. We should have thought, however, that the words of Section 529 were sufficiently clear as to the circumstances under which any defect of the nature concerned could be remedied. It is conceded on behalf of the State that there is a general impression amongst the Magistracy that the transfer of a case by a Magistrate, of which he has not taken cognizance, while dealing with the General File of the Sub-Divisional Officer, who is on some other duty, is curable by Section 529, even though the transferring Magistrate is conscious of the requirements of Section 192. It is urged that a strict adherence to the provisions laid down in Section 192 would render the day-to-day work of the Sub-Divisional Officer almost impossible when he should happen to be away on other work. The argument in short is that the disregard of the provisions of Section 1"92 is the result of a pressing necessity and that what js done is done honestly and in good faith. We have not the least doubt that such a transfer is usually done in gcod faith. The question, however, is, is it done erroneously? The answer to this, one way or the other, involves, on the one hand, gross ignorance, and, on the other, a conscious disregard of the provisions of Section 192. In the case before us, the learned Magistrate has submitted an explanation in which occurs