P L D 1958 (W (PLP)

Dara v. Mukat and others A I R 1914 All. 48 considered. Yousuf Ali Khan v. Emperor A I R 1920 Pat. 518 dissented from. (d) Criminal Procedure Code (V of 1898), S. 192‑Correct procedure for transferring case. The correct procedure for transferring a case which has been transferred under section 192, Criminal Procedure Code is to withdraw or recall it and then to transfer it to any other subordinate Magistrate of competent jurisdiction. But a transferee Magistrate cannot withdraw or recall a case transferred to him from his own file. A. K. Shaikh, Assistant Advocate‑General for Appellant. Date of hearing : 25th August 1958. QADEERUDDIN AHMED, J.--‑ One Ali Muhammad made a com plaint in writing against Sumar Khan and others to the District Magistrate, Thatta, who sent it "for disposal according to law" to the Sub‑Divisional Magistrate, Shah Bunder. The latter Magistrate examined the complainant, held preliminary enquiry, issued process against the accused and then transferred the case to the Sub‑Judge and First Class Magistrate, Sujawal by the following order of the 12th of April 1957. " The case of Ali Muhammad v. Sumar Khan and others under sections 392/341/342/323, P. P. C., is hereby withdrawn from the file of this Court and transferred to that of Sub‑Judge & F. C. M. Sujawal for disposal according to law." The last Magistrate thought that the order of the Sub‑Divisional Magistrate was questionable in law and referred the case back to the Sub‑Divisional Magistrate with his suggestion that it might be tried by himself as its trial by the second transferee Magistrate would be improper. The Sub‑Divisional Magistrate did not agree with the view and returned the papers with the following order dated the 6th of July 1957 " The view taken in this case is not sound one. D. M., has sent complaint for disposal and has not referred a case to me, hence the presumption is not wholly applicable in this case." The Sub‑Judge and First Class Magistrate then wrote a letter on the basis of Bashir Hussain v. Ali Hussain and others (I L R 36 All. 166) to the District and Sessions Judge, Hyderabad for instructions whether he should proceed with the trial of the case. The District and Sessions Judge issued notices to the Public Prosecutor, Thatta as well as the parties to the complaint. The Public Prosecutor and counsel for the accused supported the view of the Sub‑Judge and First Class Magistrate, Sujawal. The Sessions Judge has discussed the legality of the order by which the case was sent by the District Magistrate, Thatta to the Sub‑Divisional Magistrate. Shah Bunder as well as the legality of the order of transfer passed by the Sub‑Divisional Magistrate and taking the view that both the orders were bad in law, has come to the conclusion that this "is a fit matter in which a reference be made" to the High Court. The order of the District Magistrate is not valid, in the view of the learned Sessions Judge, Hyderabad, because a case can be transferred under section 192, Cr. P. C., after taking cognizance of it and as the District Magistrate, according to the Sessions Judge, had not applied his mind to the offences alleged by the complainant with the intention of initiating judicial proceedings against the offenders, it cannot be said that the learned District Magistrate, Thatta had taken cognizance before he forwarded the complaint to the Sub‑Divisional Magistrate, and that therefore his order was "improper". The meaning of the expression "taken cognizance" which occurs in section 192, Cr. P. C., although not defined, can be accurately ascertained with the help of the provisions contained in the allied sections of the Code. Under section 200, Cr. P. C., a Magistrate taking cognizance of an offence on a complaint is bound to examine the complainant "at once". Under sub section (1) of section 204, Cr. P. C., which is the first section in Chapter XVII dealing with the "Commencement of proceedings before Magistrates", a Magistrate taking cognizance of an offence" is to issue process if in his opinion there is sufficient ground for proceeding with the case. This means that the first step to be taken by a Magistrate "taking cognizance of an offence " on a complaint is to examine the complainant and then to issue process for commencing proceedings. Issuing process is therefore not a part of taking cognizance, but one may contend that examining the complainant is a part of the process of taking cognizance, yet for purposes of section 192, at least, it is not a part of that process, and this has been made clearly by clause (a) of the proviso to section 200 which lays down that "when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the com plainant before transferring the case under section 192". There is no doubt therefore that neither the examination of the complainant nor the issue of process are ingredients of taking cognizance of an offence for purposes of section

192. The act of taking cognizance, for this provision at least, assumes a subjective character and need not involve any outward manifesta tion except physical concomitants of the application of mind. Cuming and Ghose, JJ., in Emperor v. Colin Mackenzie Mackay (A I R 1926 Cal. 470) while supporting the majority view of a Bench consisting of 5 Judges had gone to the extent of observing that taking cognizance of a case under the Code does not involve, or does not necessarily involve, any judicial act on the part of the Magistrate for, if it was not so then: "it would mean that the same question would have to be considered by two persons, viz., whether process should issue or not". A transfer under section 192, Cr. P. C., must be always "for inquiry or trial" and even if the language of the order of transfer is not meticulously precise an implicit direction to this effect must be taken to exist in it. The phrase "for disposal according to law" is often used in orders of transfer because it is a conveniently wide expression to' include the sense of "inquiry or trial", and in this context means "for completing the inquiry or trial according to law". The object of such transfer therefore is that the transferee Magistrate has himself to inquire into or try the transferred case. There is a difference between the language used in section 192, Cr. P. C., and section 526 of the same Code which emphasizes the narrow object of a transfer under section 192, Cr. P. C. Under section 526, Cr. P. C., a case is transferred without any restriction on it and the inference is that where a case is transferred by the High Court under this section the transferee Court may, in the absence of a direction to be contrary, (See Queen‑Empress v. Mata Prasad and others (I L R 19 All. 249) ) try the transferred case himself or transfer it to a subordinate Magistrate. There being a restriction in law on the purpose of transfere made under section 192, Cr. P. C., the transferee Magistrate will transgress it if he transfers the case to some other Magistrate. This restriction is consistent with the requirements of good administration and therefore one may observe that transfer of `such a case by the transferee Magistrate is inconsistent with good administration as well as contrary to an express object of the provision. In the cases which were cited before us we have noted'' a difference in emphasis on administrative considerations Bashir Husain v. Ali Hussain and legal considerations Emperor v. Sheikh Muhammad Akbar (I L R 47 All. 288) but have not come across any case in which the view taken was that such a transferee Magistrate can further transfer it. The provisions of subsection (2) of section 192 Cr. P. C., may appear to be inconsistent with this view because under it any First Class Magistrate may be empowered by the District Magistrate to transfer "any case" of which cognizance has been taken by such Magistrate of the First Class, but this subsection is not an exception to subsection (1) and should be read consistently with it. Moreover the words : "empowering any Magistrate of the First Class who has taken cognizance of any case to transfer it for enquiry or trial" do not refer to those cases which are sent for inquiry or trial after a superior Magistrate has already taken cognizance of them. We acknowledge that a distinction of this nature was drawn by Misra, J., in Indra Jit Singh v. Ram Pal Singh (A I R 1951 All. 371) and that we have adopted it. The argument which appealed to Knox, J., in Dara v. Mukat and others (A I R 1914 All. 48) is a little different. We may point out that consistently with the view expressed by us the correct procedure for transferring case which has been transferred under section 192, Cr. P. C., is to withdraw or recap it and then it to transfer to any other subordinate Magistrate of competent jurisdiction. The concept of "withdrawal" and "recall" is plain enough, but in view of the first order of the S. D. M. Shah Bunder, we may mention that a Magistrate cannot withdraw or recall a case transferred to him from his own file. We are therefore of the opinion that the order of transfer made by the District Magistrate, Thatta is not invalid. As to the order of transfer by the Sub‑Divisional Magistrate, Shah Bunder we hold that it was ultra vires of his powers and without jurisdiction. The defect of his order is not curable by section 529 (f) because the provision applies to orders which w Magistrate could be empowered to pass. We respectful disagree with the contrary view taken in Yousuf Ali Khan v. Emperor (A I R 1920 Pat. 518). The complaint of Ali Muhammad against Sumar Khan and others is therefore to be tried by the Sub‑Divisional Magistrate, Shah Bunder in whose Court it is pending. K.B.A. Reference accepted.