Word "Distinction" explained.

This petition is directed against the order of the learned District Magistrate, Bangalore, in Crl.R.P. No. 2 of 1962, wherein he refused to interfere with the order of the trial Court directing the return of the complaint for presentation to the proper Court.

The petitioner, as complainant, filed a complaint against her husband, the respondent for bigamy, in the Court of the learned First Class Magistrate, Doddaballapur. The learned Magistrate took cognizance of the offence complained of and the case in question was numbered as Crl.C. No. 246 of 1961. In due course, witnesses for the prosecution were examined. After the examination of the prosecution witnesses, the learned Magistrate came to the conclusion that the alleged offence having taken place outside his local area, he has no jurisdiction to try the case. In view of that conclusion, he returned the complaint to the complainant under section 201, Criminal Procedure Code, for presentation to the proper Court. The legality of this order is challenged in this revision petition.

Even according to the prosecution, the alleged offence was committed outside the territorial jurisdiction of the learned First Class Magistrate, Doddaballapur. Therefore, it is plain that he has no jurisdiction to try the case. The simple question is whether he should have returned the complaint under section 201(1), Criminal Procedure Code as he has done or whether he should have referred the matter under section 346(1), Criminal Procedure Code to the District Magistrate for necessary orders.

Section 201(1), Criminal Procedure Code, says:

"If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect."

"This provision is plain and unambiguous. The language of that provision does not set any time-limit within which the complaint has to be returned. From that provision no support can be gathered for the contention that once a Magistrate takes cognizance of an offence complained of he cannot thereafter act under section 201. It must be remembered that section 201 applies not merely to private complaints but also to police charge-sheets. Hence the circumstance that section 201 is hedged in between section 200 and section 202, provisions relating to private complaints is of no significance.

Now coming to section 346(1), Criminal Procedure Code, it reads:

"If in the course of an inquiry or a trial before a Magistrate in any district outside the presidency towns the evidence appears to him to warrant a presumption that the case is one which would be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs." (Italicised is mine).

This provision is not one that deals with the question of jurisdiction. It deals with cases where it appears to the Magistrate from the evidence on record that the case is one which should be tried or committed for trial by some other Magistrate, e.g., a case where the Magistrate thinks that the proper sentence to be imposed, if the case is proved, is one which is in excess of his powers or a case which he is disqualified to enquire or try or a case which is not proper for him to enquire or try. While section 201 deals with want of jurisdiction, section 346 covers cases where the Magistrate thinks that the case should be tried by some other Magistrate.

The view expressed by me above finds support from the decisions of the High Court of Madras in District Magistrate of Cuddapah v. Syed Abdul Kareem1; Sowbagiammal v. Rapheel and others2. Similar is the view taken by a Full Bench of the Kerala High Court in State v. Pokker and others3; and the Saurashtra High Court in State v. Kathianad Ranning and others4. With