P L D 1960 Dacca 26 (PLP)

On the 21st January, 1957, he passed the following order: " 44 men of the 2nd party appear by pleader and pray for time to show cause. O/C also prays for time to submit report. Time allowed till 31st January, 1957." Eventually on the 4th February 1957, the said learned Additional District Magistrate passed an order which reads as follows: "An affidavit filed by the 1st party. Some documents filed by the 2nd party. Police report received. Both parties are present, and both have filed written statements in the form of affidavit. Draw proceeding under section 145, Cr. P. C. Transferred to the Court of Mr. S. S. H. Rizvi for disposal." Against the aforesaid order; dated the 4th February, 1957, the present petitioner moved the Sessions Judge, Mymensingh, for a Reference to this Court under the provision of section 438 of the said Code. The learned Sessions Judge by his order, dated the 30th March, 1957, rejected the petitioner's application. The present application is directed against the said order passed by the learned Sessions Judge on 30th March, 1957, and the order passed by the learned Additional District Magistrate on the 4th February, 1957. The petitioner obtained a Rule from this Court which is confined to Ground No. 5 of the petition. The said Ground No. 5 reads as follows: " For that Mr. S. S. Rizvi, Magistrate, Sadar, Mymensingh, not having territorial jurisdiction over the parties, and the subject‑matter in dispute, which are within the local limits of jurisdiction of Kishoreganj Sub‑divisional Courts, the learned Additional District Magistrate had no jurisdiction to transfer the proceeding under section 145 of the Cr. P. C. for disposal by the said Mr. Rizvi."

3. At the hearing of this application, Mr. D. C. Roy appeared for the petitioner and Mr. Nurul Amin for the opposite parties.

4. Mr. Roy has not challenged the power of the District Magistrate or an Additional District Magistrate to transfer pro ceedings under section 145 of the Code of Criminal Procedure to a competent Magistrate. His only contention is that such transfer must be made to a Magistrate who has territorial jurisdiction to initiate the said proceeding under section 145 (1) of the Code of Criminal Procedure. In support of his contention, he has cited the case of Chellapathi Naidu and others v. T. Subba Naidu (I L R 52 Mad. 241). In that case it was held that where a petition was presented to a District Magistrate praying for action under section 145 of the Code in respect of certain land, and he transferred it for disposal to a Sub‑divisional Magistrate, the limits of whose jurisdiction did not include the land in question and the latter passed an order first under section 145 (1), and then under section 145 (6), held, that the whole proceedings were illegal. It was also held that an order under section 145 (i) of the Criminal Procedure Code can be made only by a Magistrate having local jurisdiction over the land or water in dispute. In the above case Reilly, J., at pages 243 and 244 of the report observes as follows: " For the respondent it is contended that the District Magistrate had, under section 192 of the Code, power to transfer the inquiry at any stage, and that the District Magis trate having once transferred this matter to the Sub -divisional Magistrate of Tiruvallur, that Sub‑divisional Magistrate had jurisdiction to proceed with an inquiry under section

145. Arumuga Tegundan and another (I L R 26 Mad. 188) and Satish Chandra Panday v. Rajendra Narain Bagchi (I L R 22 Cal. 898) have been quoted for the respondent to show that inquiries under section 145 of the Code may be transferred by the proper authorities from one Court to another. But it must be noticed that, in each of those cases, the order under section 145 (1), which is the initiatory step in proceedings under section 145, had been made by a Magistrate who had local jurisdiction over the land concerned. In view of the decision in Arumuga Tegundan and another, I must take it that, if the District Magistrate had himself made an order under section 145 (1) in this case, as he had undoubtedly jurisdiction to do, and had then transferred the matter to the Sub‑divisional Magistrate of Tiruvallur, the Sub‑divisional Magistrate of Tiruvallur would have had jurisdiction to proceed with the inquiry, though I may perhaps venture to say that, if I had not that decision before me, I should have regarded that question as open to doubt. But I have no doubt that the order under section 145 (1) in such a case must be made by a Magistrate having local jurisdiction over the land or water concerned. That I think is made clear both by the object arid wording of the section. The object of section 145 is not to provide parties with an opportunity of bringing their civil disputes before a Criminal Court or of manoeuvering for position for the purpose of subsequent civil litigation, though that is often the effect of such proceedings, but to arm the Magistrate concerned with an additional weapon for maintaining peace within the area for which he is responsible. And the wording of section 145 (1) requires the Magistrate to state in his initial order that be is satisfied that there is a dispute likely to cause a breach of the peace concerning some land or water or its boundaries within the local limits of his jurisdiction . . . . . That being so, I think it is clear that the Sub‑divisional Magistrate's order, under section 145 (1) in this case was without jurisdiction, and it follows that his whole proceedings were without jurisdiction." It is clear that the above case is no authority for the proposition that an Additional District Magistrate in transferring a case under section 145 of the Code of Criminal Procedure must transfer the same to a Magistrate having territorial jurisdiction over the subject‑matter of the dispute. The above case is only an authority for the proposition that an order made under section 145 (1) of the Code of Criminal Procedure must be made by a Magistrate having territorial jurisdiction over the subject‑matter in dispute. In the above‑mentioned case, the District Magistrate did not himself pass an order under section 145 (1) of the Code of Criminal Procedure initiating proceeding under the said section. He simply transferred the application made to him for disposal by another Magistrate, who had no territorial jurisdiction over the subject‑matter in dispute.

5. Mr. Nurul Amin for the opposite parties has argued that in this case an application was made to the Additional District Magistrate himself to take action against the opposite parties, and the Additional District Magistrate himself after taking some steps on the application passed an order under section 145 (1) of the Code of Criminal Procedure initiating proceeding under the said section. He has submitted that it is, therefore, clear that the order made under section 145 (1) of the said Code was made by the Additional District Magistrate him self who had admittedly territorial jurisdiction over the subject matter in dispute. Mr. Amin has pointed out that by his order, dated the 4th February, 1957, the learned Additional District Magistrate after passing an order under section 145 (1) of the Code merely transferred the case pending before him to be disposed of by another Magistrate, who admittedly is a Magistrate of the First Class empowered to deal with proceedings under section 145 of the Code of Criminal Procedure. The learned Advocate for the opposite parties has further contended that even if it be conceded that Mr. Rizvi to whom the case was transferred by the Additional District Magistrate had no territorial jurisdiction over the subject‑matter in dispute he was competent to dispose of the case which was validly transferred to him by the learned Additional District Magistrate under the provision of section 192 of the Code of Criminal Procedure inasmuch as the initial order under section 145 (1) of the said Code was passed by the Additional District Magistrate himself. He has sought to make a distinction between a case when the entire proceeding is transferred to another Magistrate who has no territorial jurisdic tion over the subject‑matter in dispute, and a case where the initial order under section 145 (1) of the Code is passed by an Additional District Magistrate, who thereafter transfers the case to be finally disposed of by another Magistrate, who has necessary powers to dispose of the same, but who has no such territorial jurisdiction as aforesaid. Mr. Amin has relied on two cases decided by the Calcutta High Court, and they are: Sathish Chandra Panday v. Rajendra Narain Bagchi, and the case of Raj Mohan Roy Chowclhury and others v. Prasanna Chandra Chatterji and another (5CWN687).

6. In the case of Satish Chandra Panday, it was held that a proceeding under Chapter XII of the Criminal Procedure Code is an "enquiry" within the meaning of section 4 of the Code. The general power conferred by sections 192 and 528 of the Code upon a District or Sub‑divisional Magistrate to transfer or withdraw any case for enquiry or trial by any Magistrate subordinate to him is not taken away or cut down by anything in. section

145. It was further held that the wordings of section 192 are wide enough to include cases under Chapter XII. In Raj Mohan Roy's case, the facts very briefly speaking are as follows: In a proceeding under section 145 of the Code of Criminal Procedure, one of the parties moved the District Magistrate for a transfer of the case to his own file. The District Magistrate accordingly made an order transferring the case to the file of the Senior Deputy Magistrate at Sadar (headquarters) to "try it himself or make it over to another Magistrate at Sadar". The Senior Deputy Magistrate, however, made over the case to a Magistrate who held a local investigation, and tried the case, and made an order in favour of the 1st party. In the judgment which was delivered by the Court, the following observa tions may be noted: " But it is contended that the Magistrate who made the order under section 145 was not competent to make it inasmuch as the subject‑matter of dispute was not within his local jurisdiction, and that, therefore, the case came within section 530 (j). In our opinion, section 530 (j) refers to a totally different state of things, namely, where a Magistrate is not competent by virtue of the position he holds, or powers vested in him to try a case of the character referred to in section

145. From the materials before us, there does not appear that Babu Kali Kumar Roy Chowdhury was not vested with the jurisdiction or was not a First Class Magistrate competent to try the case under section

145. We, therefore, think that the provisions of section 530 (j) do not apply at all to the case."

7. Mr. Roy has not been able to cite any authority before me for the proposition that an Additional District Magistrate after having himself passed an order under section 145 (I) of the Code of Criminal Procedure cannot transfer the same under section 192 of the said Code to another competent Magistrate, unless such Magistrate has also territorial jurisdiction over the subject‑matter in dispute. The case of Chellapathi Naidu and others, is a case in which the initial order under section 145 (1) was not passed by the District Magistrate himself. It was a case in which the entire application was transferred for disposal to a Magistrate, who had no territorial jurisdiction over the subject‑matter in dispute. It was held that the said Magistrate was not competent to pass an order under section lay (1) of the said Code. On the contrary the above case makes a distinction between a case as stated above, and a case in which the initial order under section 145 (1) o the said Code having been made by the District Magistrate himself was thereafter transferred to a Magistrate of the First Class for final disposal. In the present case, the order under subsection (1) of section 145 of the Code of Criminal Procedure was made by the learned Additional District Magistrate himself. The order of the Additional District Magistrate, dated the 4th February, 1957, transferring the case for disposal to Mr. S. S. H. Rizvi, is therefore, not illegal inasmuch as it is admitted that Mr. Rizvi has powers to dispose of proceedings under section 145 of the Code.

9. For reasons stated above, this Rule is discharged. K.B.A. Rule discharged.