Cases from the file of Chief Judicial Magistrate can be transferred to the file of another Chief Judicial Magistrate.

Order*.- The petitioners were originally committed to the Court of Assistant Sessions Judge, Cuddapah as the charges against them were under sections 147, 148, 324 and 307, Indian Penal Code. The learned Assistant Sessions Judge discharged the accused of the offence punishable under section 307, Indian Penal Code, and since the balance of the offences with which the accused were charged were not triable exclusively by the Sessions Judge, he invoked the powers under section 228 of the Code of Criminal Procedure, 1973 and transferred the case to the Chief Judicial Magistrate, Cuddapah who transferred the case to the Judicial First Class Magistrate suo motu. Tr. Crl. M. P. No. 1898 of 1978 was preferred against that order calling for the retransfer of the case from the file of the Judicial First Class Magistrate to the file of the Chief Judicial Magistrate and I had allowed that petition holding that it was not correct on the part of the Chief Judicial Magistrate, when a case has been transferred to him under section 228, Criminal Procedure Code, to transfer that very case to another Magistrate, and set aside the order of transfer passed by the learned Chief Judicial Magistrate. The petitioners have now moved a fresh petition under section 407, Criminal Procedure Code, requesting for transfer of the case from the file of the Chief Judicial Magistrate to the file of the Judicial First Class Magistrate, Proddatur on the ground of convenience of parties.

Mr. Harisesha Reddy, the learned Counsel for the petitioners, contends that section 407, Criminal Procedure Code, cannot be controlled by the provisions of section 228, Criminal Procedure Code, because section 407, Criminal Procedure Code, is an independent section itself and therefore even section 228, Criminal Procedure Code, provides that the Court of Session, if it finds that the case is not exclusively triable by it, may frame a charge against the accused and order the transfer of the case to the file of the Chief Judicial Magistrate. But section 407, Criminal Procedure Code, does not make any difference between an ordinary case and a case which has been transferred under section 228, Criminal Procedure Code. On the other hand, Mr. C. Padmanabha Reddy, the learned Advocate for the respondent, contends that since the case has been transferred to the Chief Judicial Magistrate, under section 228, Criminal Procedure Code, if at all the Court can transfer the very same case to another Chief Judicial Magistrate and not to any other Magistrate below the Chief Judicial Magistrate. I am of the view that having regard to the importance of this question, the matter may be referred to a Bench of this Court. I therefore refer this matter to a Bench. This papers may be placed before my Lord The Chief Justice for formation of a Bench. Since the matter is with regard to the transfer of a criminal case and stay of trial has already been ordered, the office would do well in posting this petition as early as possible.

Pursuant to the above order the petition came on for hearing before a Division Bench consisting of Punnayya and Gangadhara Rao, JJ.

N. Harisesha Reddy, for Petitioners.

Additional Public Prosecutor on behalf of State.

C. Padmanabha Reddy and T. Ramamohan Raj, for Respondent No. 2.

The judgment of the Bench was delivered by

Gangadhara Rao, J*.-The question for our consideration in this petition is whether the High Court, by virtue of the powers conferred upon it, under section 407 of the Code of Criminal Procedure, 1973, can transfer a case, that was transferred by a Court of Session to the Chief Judicial Magistrate under section 228(1) of the Code of Criminal Procedure, to a Court of a Magistrate of the First Class.

2. The facts giving rise to this question are as follows: Originally, accused 1 to 11 were committed to take trial in Sessions Case No. 75 of 1977 on the the file of the Assistant Sessions Judge, Cuddapah, for offences punishable under sections 147, 148, 324 and 307, Indian Pena

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