P L D 1957 Azad J & K 12 (PLP)

ABDUL HAMID KHAN, J.‑--The petitioner has come up in revision against the order of Sessions Judge, Poonch dated the 1st December 1956, whereby the conviction of the accused petitioner under sections 324/34 and 323, A. P. C. by order of the trial Magistrate, Pallandri dated the 28th April 1955, was up‑held but the sentences were reduced from two years rigorous imprisonment and Rs. 100 fine or in default of pay ment of fine two month's rigorous imprisonment under section 324/34, A. P. C. to one year rigorous imprisonment and from one year rigorous imprisonment and Rs. 50 fine or in default of payment of fine one month's rigorous imprison ment under section 323, A. P. C. to six month's rigorous imprisonment. The sentences were, however, ordered to run concurrently. The learned Counsel for the petitioner has attacked the findings of the Courts below on two grounds, one being that the proceedings taken by the trial Court in the case after intimation from the Court of the District Magistrate that the file of the case should be sent to that Court for disposing of the transfer application filed by the accused for the transfer of the case from the Court of the trial Magistrate, was illegal. It so happened, that the hearing in the case in the trial Court was fixed for 25th April 1955. On that date, statements of two defence witnesses were recorded, the defence evidence was closed and the case was fixed for arguments fo!' the following day. On 25th April 1955, the accused filed a transfer application in the Court of District Magistrate, Pallandri. The District Magistrate called a report from the trial Magistrate and sent for the file with the direction that it may reach him till the 30th April 1955. The trial Magistrate was intimated of this order on 26th April 1955, when he had to hear arguments. He proceeded as under as the interim order of the trial Magistrate dated the 26th April 1955, shows:‑ "The accused have brought an order of the District Magistrate in which an item‑wise report has been called for and the file has been summoned to reach that Court till the 30th April 1955. This will be complied with separately. No application has been made to this Court for stay of proceedings nor has the District Magistrate issued any stay order. In the circumstances, the proceedings in the case cannot be stopped. Argument have been heard. For orders on 28th April 1955." On the 28th April 1955, judgment was announced in the case and the file was submitted to the District Magistrate in compliance with his orders. The question for determination is whether after intima tion of the order of the District Magistrate, the Magistrate Was bound to stay proceedings in the case or not. The learned Counsel for the petitioner contends that even though there was no express order by the District Magistrate for stay of proceedings by the trial Magistrate, the summoning of the file by the former amounted to withdrawal of the case from the latter and the trial Court should, therefore, have stayed the proceedings. He, however, could not quote any authority in support of his contention. I have carefully read and re‑read section 528, Criminal P. C. The relevant part for the purpose of this case is part (2) of section 528, Criminal P. C. which runs as under:‑ "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 order it for inquiry or trial to any other such Magistrate competent to inquire into or try the same." This part of section 528, Criminal P. C. does not place any limitation as to the time or the stage of proceedings at which a case can be withdrawn though the trend of the rulings of the various High Courts is that it will not be proper exercise of discretion to withdraw the case at a late stage when it is ripe for judgment. The view held by the High Court of Nagpur (163 Indian Case 694 (Nag.) is that in this respect the Magistrate is bound to act generally on the principle under‑lying subsection 8 of section 526, Criminal P. C. that is to say, he can allow the withdrawal till the defence case is closed. The view expressed by Lahore, Calcutta and Sindh High Courts on the point is that there must be and should be good and satisfactory reasons before a case is transferred from the file of any subordinate Magistrate and that though the section gives a wide discretion to the District Magistrate, it should not be exercised arbitrarily or capriciously but that it should be judicial one A I R 1934 Cal. 137, A I R 1936 Sind 237 and A I R 1930 Lah. 168 I am perfectly in agreement with the views expressed by these High Courts. In the present case, the defence evidence had been closed when the Magistrate received intimation that he was to submit the file to the District Magistrate. He complied with the orders but did not stay the proceedings because he was of the view that the District Magistrate had not ordered stay of proceedings. The question is, whether the trial Magistrate was bound to stay the proceedings if there was no express order by the District Magistrate to that effect or was the stay of proceedings implied in the order of the District Magistrate. Here, I would like to refer to section 526, Criminal P. C. wherein there is a special provision for stay of proceedings in case a person intimates to the Court his intention to apply for transfer to the High Court. The Court is, however, not bound to adjourn the case upon a second or subsequent intimation from the same party. In such a case, if an application for transfer is preferred to the High Court the Subordinate Court will not stay the proceed ings unless there is an order for stay of proceedings in express terms by the High Court. The same principle, in my opinion, will apply to the stay of proceedings in the subordinate Courts when an application for transfer is made to the District Magistrate. If, he after receiving the application does not order the stay of proceedings, the subordinate Court will not be bound to stay proceedings, and, therefore, in my opinion the trial Magistrate in this case was perfectly justified in not staying the proceedings after receiving intima tion from the District Magistrate that the file was to be submitted to him till a certain date. In the first instance, the application for transfer was made at a very late stage and should have been thrown out and if for some good reason it was not considered desirable to throw out that application and there were some good grounds justifying interference on the part of the District Magistrate, quick orders should have been issued in clear terms for the stay of proceedings. This was not done and that is why proceedings were not stayed by the trial Magistrate. I, therefore, do not agree with the contention of the learned Counsel for the petitioner that the proceedings after intimation to the trial Court that the file was to be submitted to the District Magistrate, are illegal. I now proceed to discuss the second point raised by the Counsel for the petitioner. According to the prosecu tion, land comprising Khasra No. 1555 measuring 14 kanals and 11 marlas belonged to Gokal Chand, evacuee. This was in joint possession of Muhammad Aziz, Said Muhammad complainants and Abdullah Khan accused petitioner and another accused Nazar Muhammad, who absconded during the pendency of the appeal in the lower Court. It is alleged that on 11th November 1954, when Muhammad Aziz and Said Muhammad were cutting grass, they were attacked by the accused who stoned them and Abdullah accused inflicted injury on the right thigh of Said Muhammad with a spear. The accused denied the charge in the trial Court. Nazar Muhammad accused further stated that in fact they had been attacked by the complainant. The learned Counsel for the petitioner contends that since the petitioner and his brother were in exclusive posses sion of the land, they were perfectly justified in beating the complainants in defence of private property. This plea was neither taken in the trial Magistrate's Court nor in the lower appellate Court. Besides, the statement of Fateh Khan D. W. falsifies the claim that the accused party were in exclusive possession of the land. I see, no reason to up set the concurrent findings of the Courts below on this point. The application for revision is, therefore, dismissed. The accused petitioner, who is on bail, is sent back to Jail to undergo the remaining term of imprisonment. K. H. A. Application dismissed.