Ratio-Power of District Magistrate to withdraw and transfer proceedings under section 145, Cr.P.C. pending before SDM.

This Revision Petition is directed against the order dated 16th June, 1970, passed by the District Magistrate, North Kanara, in Case No. M.A.C. III C.S.R. No. 2365 rejecting the Petitioner’s application for transfer of proceedings under section 145 of the Code of Criminal Procedure pending before the Sub-Divisional Magistrate, Kumta, in Case No. M.A.G. II S.R. No. 50, to some other Court of competent jurisdiction, and the petitioner before this Court is the Second Party before the Sub-Divisional Magistrate.

2. The second respondent before this Court who is the First Party before the Sub-Divisional Magistrate, initiated the proceedings under section 145, Criminal Procedure Code. The petitioner filed an application before the District Magistrate for transfer of the said proceedings from the Court of the Sub-Divisional Magistrate to some other Court of competent jurisdiction. He alleged in that application that he would not get justice at the hands of the Sub-Divisional Magistrate and the circumstances justified that the case should be tried by some other Court. This application was resisted by the second respondent.

3. It was contended before the District Magistrate that he could withdraw and transfer the proceedings to some other Sub-Divisional Magistrate under the general powers conferred on him under section 17-A(2) of the Criminal Procedure Code which reads thus:

"17-A(2). The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Magistrates subornates to him and as to allocation of business to an Additional District Magistrate".

But that contention did not find favour with him and while rejecting it this is what he stated:

"For one thing, the said section 17-A (2) is a general provision which authorises the District Magistrate to regulate the allocation of the work among his subordinate Magistrates through the issue of rules or special orders. It cannot therefore be construed as to authorities the District Magistrate to withdraw specific cases which are pending in accordance with such general allocation of business at any particular time before any particular subordinate Magistrate, and to transfer such specific cases to any other Magistrate subordinate to him. Secondly the provisions of the said section clearly require the District Magistrate to exercise this general power for the distribution of business in a manner ‘consistent with this Code’. In the matter of such withdrawal and transfer of cases by the District Magistrate the Code had made specific provision (vide sub-section (3) of section 528 thereof). The wording of the sub-section also makes it clear that this power of withdrawal and transfer can only be exercised by the District Magistrate where he is authorised to do so by the State Government. Under the notification No. H.D. 12/PRC/69, dated 7th October, 1969, the Government of Mysore have authorised all District Magistrates in the State t:o exercise these powers of withdrawal and transfer only in respect of proceedings under sections 107, 108, 109 and 110 of the Criminal Procedure Code. If, therefore, the District Magistrate were to exercise these powers also in respect of section 145(1) proceedings in the absence of any specific authorisation by State Government under section 528(3), such action would not be consistent with the Code. As such, any order transferring section 145(1) pro- ceedings pending before the Sub-Divisional Magistrate at the present juncture could not be justified under the provisions of section 17-A(2) thereof.“

It was also contended that in view of the decision in Syed Ismail Qadri v. Syed Abdul Nabi1, such proceedings could not be transferred by a Sessions Judge and hence that could be done by the District Magistrate since the Sub-Divisional Magistrate was subordinate to him. That contention too did not find favour with him. Therefore, in the view he took he dismissed the application for tra