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HIGH COURT OF CALCUTTA
P. B. Mukharji, Guha
TULSIBALA RAKHIT - Appellant
Versus
N. N. KHOSAL - Respondent
Criminal Revn. Case 266 Of 1951
Decided On : AUGUST 31, 1951
CRIMINAL PROCEDURE CODE - SECTION 107 - SECTION 112 - SECTION 192 - SECTION 529 - NOTICE TO SHOW CAUSE - TRANSFER OF CASE - JURISDICTION - INTERPRETATION - MAGISTRATE'S POWER - PROCEDURE - COGNIZANCE - ENQUIRY - GOOD FAITH - ILLEGALITY - JUDICIAL REVIEW.
Fact of the Case:
The petitioners were served with a notice under Section 107, Cr. P. C. by the S. D. O. of Alipur, directing them to show cause why they should not be bound down to keep peace for a period of one year. The petitioners challenged the legality of the notice and the subsequent order of the Magistrate transferring the case to another Magistrate, arguing that the initial notice was illegal and that the Magistrate who issued the transfer order did not have jurisdiction.
Finding of the Court:
The Court held that the initial notice issued by the S. D. O. was illegal as it did not comply with the requirements of Section 112, Cr. P. C. The Court further held that the subsequent order of the Magistrate transferring the case to another Magistrate was also illegal as the Magistrate who issued the transfer order did not have jurisdiction to do so. The Court also held that Section 529 (f) Cr. P. C. could not be invoked to cure the defect of jurisdiction in this case as the Magistrate had not acted "erroneously in good faith" and the proceedings were questioned on other grounds as well.
Issues: 1. Whether the initial notice issued by the S. D. O. was legal. 2. Whether the subsequent order of the Magistrate transferring the case to another Magistrate was legal. 3. Whether Section 529 (f) Cr. P. C. could be invoked to cure the defect of jurisdiction in this case.
Ratio Decidendi: 1. The Court held that the initial notice issued by the S. D. O. was illegal as it did not comply with the requirements of Section 112, Cr. P. C. The Court observed that the Magistrate is required to issue a notice under Section 112, Cr. P. C. only after he has taken cognizance of the case and that the notice must satisfy the requirements of Section 112, Cr. P. C. In this case, the S. D. O. had not taken cognizance of the case and the notice issued by him did not satisfy the requirements of Section 112, Cr. P. C. Therefore, the notice was illegal. 2. The Court held that the subsequent order of the Magistrate transferring the case to another Magistrate was also illegal as the Magistrate who issued the transfer order did not have jurisdiction to do so. The Court observed that under Section 192, Cr. P. C., a Magistrate can transfer a case only if he has taken cognizance of the case. In this case, the Magistrate who issued the transfer order had not taken cognizance of the case. Therefore, he did not have jurisdiction to transfer the case. 3. The Court held that Section 529 (f) Cr. P. C. could not be invoked to cure the defect of jurisdiction in this case as the Magistrate had not acted "erroneously in good faith" and the proceedings were questioned on other grounds as well. The Court observed that Section 529 (f) Cr. P. C. can be invoked only if the Magistrate has acted "erroneously in good faith" and if the proceedings are questioned "merely" on the ground of the Magistrate not being empowered by law. In this case, the Magistrate had not acted "erroneously in good faith" and the proceedings were questioned on other grounds as well. Therefore, Section 529 (f) Cr. P. C. could not be invoked to cure the defect of jurisdiction.
Final Decision: The Court made the Rule absolute and set aside the entire proceedings in the case after cognizance was taken by the S. D. O. of Alipur.
( 1 ) THIS is an application in revision against the order of the Magistrate dated the 10th March 1951 drawing up proceedings under Section 107, Cr. P. C. against the petitioners who were the second party and directing the petitioners to show cause why they should not execute the Bond for keeping peace-for a period of one year.
( 2 ) THE opposite party is a tenant of the petitioners. There are many disputes between them as landlords and tenant. Quarrels are going on regarding supply of water and electricity. Then there are proceedings before the Kent Controller for standardisation of rent. The petitioners have also brought a suit for damages before the Third Court of the Munsif at Alipur and another Title Suit before, the same Court.
( 3 ) AGAINST this background of litigation and dispute the allegation of the opposite party before the Magistrate was that the petitioners were creating nuisance and were abusing and insulting the opposite party with filthy language and were threatening him with acts of violence.
( 4 ) THERE was a Police enquiry finally resulting in the proceedings under Section 107 against the petitioners.
( 5 ) THE main point urged before us is one of law. The Magistrate's order of the 10th March 1951 passed by Mr. F. M. Sanyal, First Class Magistrate at Alipur, drawing up proceedings against the petitioners is challenged on the ground of being illegal and unjustified under the Criminal Procedure Code. It is contended also that Mr. Sanyal did not take cognizance of these proceedings under Section 107, Cr. P. C. and therefore had no jurisdiction to make the order of the 10th March, 1951. That order of the 10th March 1951 apart from directing the petitioners to show cause transferred, the case to Mr. S. L. Banerjee another First Class Magistrate before whom the cause was to be shown. Such transfer is contended to be also illegal under the Criminal Procedure Code,
( 6 ) IN order to appreciate these points it is necessary to examine and set out certain facts in this connection because the substance of the argument rests on the nature and character of the procedure that should be followed under Section 107. Cr. P. C. and the right to transfer cases by Magistrates under Section 192, Cr. P. C
( 7 ) THE petition by the opposite party was filed on the 28th September 1950. An order was made by Mr. S. K. Ghosh, S. D. O. , Alipur, on the 2lst November, 1950, and by that order a notice was issued directing the petitioners "to show cause on 20/12/1950 as to why they should not be bound down under Section 107, Cr. P. C. to keep peace. " that bears the title as a "notice under Section 107, Cr. P. C. " It recites the petition of the opposite party and the report of the Metiabruz Police as well as the apprehension that there may be a serious breach of peace at any moment and finally gives directions to show cause in the terms indicated above. After adjournment on the 20th December 1950 the matter came up on the 10th March 1951 when as I have indicated above Mr. F. M. Sanyal the First Class Magistrate at Alipur again passed an order directing the petitioners to show cause why they should not be ordered to execute a Bond of Rs. 100. 00 each with one surety of the like amount for keeping peace for the period of one year. By this order not only was cause asked to be shown but as I have said the case was also transferred to Mr. S. L. Banerjee another First Class Magistrate before whom the cause was to be shown and who was asked to dispose it of.
( 8 ) THE argument now will become clear on these facts.
( 9 ) IT is said that the first notice of Mr. S. K. Ghosh, S. D. O. Alipur, dated the 21st November, 1950 having been issued to show cause there is no procedure which justifies a further order on the 10th March 1951 by Mr. Sanyal the First Class Magistrate to show cause again. That is said to be a procedure not recognised under Section 107, Cr. P. C. ' Then the order of transfer of the case by Mr. Sanyal to Mr.
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