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1978 Supreme(Sikk) 6
SIKKIM HIGH COURT
A. M. BHATTACHARJEE, J.
O. P. SINGHI AND OTHERS
VERSUS
STATE OF SIKKIM AND ANOTHER
Criminal Revn. No. 2 of 1978,
Decided On : 24 -8 -1978
A Magistrate can transfer a case to another Magistrate by an administrative order, and the transferee Magistrate can take cognizance of the case and proceed under Section 202 of the Code of Criminal Procedure to decide whether to hold an inquiry before issuing process.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 190, 192, 200, 202, 204 - TAKING COGNIZANCE - TRANSFER OF CASE - ADMINISTRATIVE TRANSFER - INQUIRY BEFORE ISSUING PROCESS - REASONS FOR POSTPONING ISSUE OF PROCESS - IRREGULARITY - CURABLE UNDER SECTION 537.
Fact of the Case:
The petitioners were summoned by the Magistrate to appear before him on a complaint filed against them by the respondent. The petitioners filed applications for adjournment through their lawyers, which were allowed. Subsequently, the petitioners moved the High Court in revision, challenging the order of the Magistrate issuing process against them.
Finding of the Court:
1. The High Court held that the petitioners had submitted to the process of the Court by filing adjournment petitions through their lawyers and were, therefore, entitled to move the High Court in revision, even assuming that prior submission to the Court's process is necessary to entitle them to invoke the revisional jurisdiction of the High Court. 2. The High Court further held that there is no period of limitation fixed for filing Criminal Revisional Applications in Sikkim and that the period of limitation prescribed for appeals shall ordinarily be regarded as the period within which revisional applications are to be filed. However, the High Court condoned the delay in filing the revisional application in this case due to the lawyer's mistake. 3. On the merits of the case, the High Court held that the Magistrate had taken cognizance of the case before transferring it to another Magistrate and that the transferee Magistrate had the authority to proceed with the case and issue process. The High Court also held that the transferee Magistrate's order postponing the issue of process and holding an inquiry, without recording the reasons therefor, was an irregularity curable under Section 537 of the Code of Criminal Procedure.
Issues: 1. Whether the petitioners had submitted to the process of the Court by filing adjournment petitions through their lawyers. 2. Whether there is a period of limitation fixed for filing Criminal Revisional Applications in Sikkim. 3. Whether the Magistrate had taken cognizance of the case before transferring it to another Magistrate. 4. Whether the transferee Magistrate had the authority to proceed with the case and issue process. 5. Whether the transferee Magistrate's order postponing the issue of process and holding an inquiry, without recording the reasons therefor, was an irregularity curable under Section 537 of the Code of Criminal Procedure.
Ratio Decidendi: 1. The High Court held that the petitioners had submitted to the process of the Court by filing adjournment petitions through their lawyers and were, therefore, entitled to move the High Court in revision, even assuming that prior submission to the Court's process is necessary to entitle them to invoke the revisional jurisdiction of the High Court. 2. The High Court further held that there is no period of limitation fixed for filing Criminal Revisional Applications in Sikkim and that the period of limitation prescribed for appeals shall ordinarily be regarded as the period within which revisional applications are to be filed. However, the High Court condoned the delay in filing the revisional application in this case due to the lawyer's mistake. 3. On the merits of the case, the High Court held that the Magistrate had taken cognizance of the case before transferring it to another Magistrate and that the transferee Magistrate had the authority to proceed with the case and issue process. The High Court also held that the transferee Magistrate's order postponing the issue of process and holding an inquiry, without recording the reasons therefor, was an irregularity curable under Section 537 of the Code of Criminal Procedure.
Final Decision: The revisional application was dismissed.
I have heard Mr. A, P. Chatterjee, the learned advocate appearing for the petitioners and the learned Advocate-General appearing for the State and have examined the records of the case and I am of opinion that the revisional application should be dismissed.
2. The facts of the case, shorn of such details as are not necessary for the present purpose, are that on receipt of a complaint filed by the respondent No. 2 against the petitioners and two others, the learned District Magistrate, without examining the complainant or his witnesses, decided, by his order dated 5th Aug., 1977, to hold enquiry and fixed 17th Aug., 1977, as the date therefor, but on the date so fixed, that is on 17th Aug., 1977, the learned District Magistrate by order transferred the case to another Magistrate for proceeding according to law. The transferee Magistrate on receipt of the complaint fixed 23rd Aug., 1977 for the examination of the complainant and his witnesses and after examining them on several dates, the learned Magistrate issued process against the petitioners and two others under S.323 of the Indian Penal Code. The petitioners have come up in revision against this order of the learned Magistrate issuing process against them.
3. The learned Advocate-General in opposing the revisional application has raised two preliminary objections as to the maintainability of the application, the first being that the petitioners not having surrendered to the process issued against them by the learned Magistrate have no right or locus standi to come up in revision and the second being that the application is barred by limitation.
4. In order to appreciate the first objection raised by the learned Advocate-General it is necessary to state that after process was issued by the learned Magistrate requiring the petitioners to appear before him on 1st April, 1978, the petitioners on that date filed applications before the learned Magistrate through their lawyers praying that another date be fixed for their appearance as they were not in a position to appear on that date due to various pre-occupations and other reasons and that prayer was allowed and 6th June, 1978 was fixed for their appearance in Court, But on 5th June, 1978, the petitioners moved this Court in revision and further proceeding in this case before the Magistrate was stayed. The learned Advocate-General has, therefore, urged that the revisional application is not maintainable in as much as the accused-petitioners have not surrendered to the process of the Court below and the learned Advocate-General has relied on the decision of the Calcutta High Court in Lakshmi Kanta Sen v. State ((1971) 75 Cal WN 601). In that case Talukdar, J., sitting singly, has observed that the rule of practice "that the accused shall surrender to the processes of the Court below before being entitled to invoke the revisional jurisdiction of the High Court is a wholesome and well-known rule of practice which has assumed a sanctity imparted to it by an imprimatur of judicial decisions" and should not be deviated from. But, as Talukdar, J. has himself pointed out, and in my view rightly, there is no such rule of law nor any absolute rule of practice that a person summoned to appear must appear and submit to the process of the Court below before he can invoke the revisional jurisdiction. I am aware of this rule of practice of the Calcutta High Court, but I do not know this to be an inflexible rule of universal application and I am of opinion that rigorous application of this rule, without consideration to the facts and circumstances of a case, may result in flagrant failure to administer justice in deserving cases on the ground of technicalities. If in a case any process has been issued by the Court illegally or without jurisdiction and the High Court feels that justice requires that such an illegal process should be cancelled or quashed, then it is difficult to understand what further principle of justice should invariabl
