An order of transfer of a case from one Magistrate to another takes effect as soon as it is pronounced, and the Magistrate before whom the case was pending ceases to have jurisdiction to proceed with the case.

This is an application in revision by Mardan and others who have been convicted under S. 379, Penal Code and sentenced to three months rigorous imprisonment and a fine of Rs. 25 each by an order of the learned Sessions Judge hearing an appeal against an order of a learned Magistrate. The learned Magistrate had originally sentenced the applicants to sis months rigorous imprisonment and a fine of Rs. 100. This sentence was reduced in appeal, as stated above.

2. The point raised by learned counsel is a very short one, while the case was pending before the Magistrate, an application for transfer of the case was made by the applicants to the District Magistrate on 24th March 1949. The proceedings were, however, not stayed during the hearing of this transfer application. On 1st April 1949, the defence produced its evidence before the Magistrate, the prosecution evidence having already been taken before the transfer application had been made. On 4th April the District Magistrate passed an order that the case be transferred to another Court. This order, however, does not appear to have been communicated to the Magistrate or even to the parties concerned, with the result that on 8th April, arguments were addressed in the case and judgment was reserved. On 24th April judgment was delivered convicting the applicants. Then it was discovered that on 4th April the District Magistrate had already passed an order for transfer. The applicants went up in appeal to the Sessions Judge and raised this point before him. He, however, did not accept the contention and maintained the conviction of the applicants modifying the sentence, as stated already.

3. In this revision it has been urged that since the District Magistrate had passed an order for the transfer of the case from the Court of the trying Magistrate to the Court of another Magistrate, the Magistrate concerned had ceased to have jurisdiction in the case and could not proceed to hear arguments and deliver judgment. I think this contention is sound. Under S. 350(3), Criminal P.C. :

"When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-s. (1)."

Although this sub-section purports to define the expression cease to exercise jurisdiction as used in sub-s. (1) and confines itself to that sub-section, nevertheless it embodies a principle which is of universal application. The jurisdiction of a Court continues so long as it is not taken away. When a superior Court transfers a case from one Court to another, that jurisdiction undoubtedly ceases. The question is whether it takes effect on the date when the order of transfer is communicated to the former Court or on the date when the order for transfer is passed. The language of sub-s. (8) of S. 350 suggests that the cessation comes into existence when the order of transfer is passed. The words are "when a case is transferred under the provisions of this Code."

4. This brings us to S. 528, Criminal P.C. Sub-section (2) of S. 528 provides :

"Any Chief Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same."

The withdrawal of a case or the recall of a case is made by an order. Once the order is pronounced, the order is complete and must have its legal effect. The communication of the order and the actual withdrawal of the record from the file of the Magistrate where the case is pending are merely ministerial acts. They may be performed with great delay. But the mere delay in performing them would not authorise the Magistrate before whom the case was pending to proceed with the case and to decide it in spite of t