Calcutta High Court
Gautam Kundu vs State Of West Bengal And Anr. on 26 September, 1994
Equivalent citations: 1995CRILJ3376
ORDER Gitesh Ranjan Bhattacharjee, J.
1. In this revisional application the petitioner prays for quashing the Criminal Misc. Case No. 355/93 pending in the Court of the learned Chief Judicial Magistrate, Alipore under Section 410, Cr. P. C. In the said case the wife/opposite party herein prayed for withdrawal and transfer of Sec. Q- 1 Case No. 66/91 from the Court of the learned Additional Chief Judicial Magistrate, Sealdah to any other Court. On the basis of a complaint of the wife forwarded under Section 156(3), Cr. P. C. police recorded an FIR and ultimately on completion of investigation submitted charge-sheet on or about 18-1-92 against the accused persons including the husband/petitioner herein under Sections 498A and 406, IPC. In that connection there had been various proceedings in different Courts between the parties. In course of time the de facto complainant/wife filed an application before the Chief Judicial Magistrate, Alipore for withdrawal and transfer of the said Criminal Case from the Court of the learned Additional Chief Judicial Magistrate, Sealdah to any other Court. On that application under Section 410, Cr. P. C. the learned Chief Judicial Magistrate, Alipore passed an order dated 22-9-93 directing for issuing notice and also called for the record. As I have already mentioned the husband accused has prayed for quashing the said proceeding pending in the Court of the learned Chief Judicial Magistrate, Alipore. The learned Judge of this Court taking up the matter at that time, by an order dated 19-8-94 stayed all further proceedings in the said Misc. Case No. 355/93 pending before the learned Chief Judicial Magistrate, Alipore until further order with liberty to pray for vaction or variation of the interim order upon notice to the other side. Thereafter the wife/opposite party herein filed an application before this Court on 5-9-94 for vacating the said interim order of stay and also for dismissing the revisional application. It is the contention of the wife, inter alia, that the Additional Chief Judicial Magistrate, Sealdah could not frame charge against the accused persons as there was filing of petitions, one after another, on different pleas in different Courts. On the other hand, it is the contention of the husband that in spite the direction of this Court the application regarding the custody of seized ornaments etc. is not being disposed of.
2. My attention has been drawn by the learned Advocate for the wife to the fact that against the order of the learned Chief Judicial Magistrate, Alipore on the application under Section 410, Cr. P. C. the husband and the family members moved an application under Article 226 in November, 1993 and there was an order of stay. As against that the wife preferred an appeal before the Division Bench and ultimately, the Division Bench presided over by M. G. Mukherji, J. by order dated 23-12-93 stayed the order of the learned single Judge and directed the learned Chief Judicial Magistrate, Alipore to proceed with the application under Section 410 Cr. P. C. and finally by an order dated 8-7-94 the Division Bench disposed of the appeal with a direction, inter alia, that the proceeding under Section 410 Cr. P. C. should be disposed of in accordance with law and any direction passed contrary to or causing an impediment to appropriate disposal of the case as passed by the writ Court would be improper. Subsquently, in August 1994, the husband and others moved an application challenging the order of the learned Chief Judicial Magistrate but the same was summarily dismissed on technical ground. Then the husband and others also moved an application against the order of the learned Chief Judicial Magistrate before the learned Sessions Judge, Alipore and against the order of the learned Sessions Judge the wife moved this Court and this Court stayed the order of the learned Sessions Judge dated 29-7-94. Another application was moved on the same grounds as in the present petition before this Court and there was a limited stay order which was however not extended. It is the grievance of the wife that the husband has again filed the present revisional application for harassing the wife. There is no doubt that there has been plethora of judicial proceedings between the parties.
3. However, the questions that have now fallen for consideration are these:- (1) whether the Chief Judicial Magistrate can, under Section 410 Cr. P. C., exercise jurisdiction for withdrawal of a case from the file of the Additional Chief Judicial Magistrate, and, (2) wherther a third party can move the Chief Judicial Magistrate for withdrawal and transfer of a case which rests on charge sheet submitted by the police after investigation.
4. As regards the first question it is submitted on behalf of the revisionist that the Additional Chief Judicial Magistrate is not subordinate to the Chief Judicial Magistrate and that being so the Chief Judicial Magistrate is not competent to withdraw any case from the file of the Additional Chief Judicial Magistrate under Section 410 Cr. P. C. The learned Advocate for the wife/opposite party herein, however, refers to a decision of the Supreme Court in Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619 : 1965 (2) Cri LJ 553 (SC). in support of his submission that the Additional Chief Judicial Magistrate is subordinate to the Chief Judicial Magistrate. That was a case in which an order of detention passed by Additional District Magistrate under the Defence of India s was involved. However, let us examine the question independently as to whether the Additional Chief Judicial Magistrate is a Magistrate subordinate to the Chief Judicial Magistrate. In this connection, we should rather at the very outset take notice of the exact language used in Section 410(1) Cr. P. C. which runs thus :-
"410. Withdrawal of cases by Judicial Magistrate :-: (1) any Chief Judicial 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."
Therefore under Section 410(1) Cr. P. C. the Chief Judicial Magistrate is empowered to withdraw any case from any Magistrate subordinate to him. The question that has been raised in this case is whether the Additional Chief Judicial Magistrate can be said to be a Magistrate subordinate to the Chief Judicial Magistrate so that the Chief Judicial Magistrate can withdraw a case from the file of the Additional Chief Judicial Magistrate under Section 410(1) Cr. P. C. In this connection we may profitably look to the relevant provisions of the Code relating to, (1) the Chief Judicial Magistrate and other Judicial Magistrates including Additional Chief Judicial Magistrate, (2) the Chief Metropolitan Magistrate and other Metropolitan Magistrates including Additional Chief Metropolitan Magistrate and, (3) the District Magistrate and other Executive Magistrates including Additional District Magistrate.
Section 12(1) Cr. P. C. provides thus:-
"In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate".
Sub-section (2) of Section 12 provides that the High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or under any other law for the time in force as the High Court may direct. Sub-section (3) (b) of Section 12 runs thus :-
"Subject to the general control of the Chief Judicial Magistrate, every Sub-Divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the Sub-division as the High Court may. by general or special order, specify in this behalf".
It is to be noted here that in enacting the relevant provisions the legislature was not oblivious of the position and status of the Additional Chief Judicial Magistrate and that is why in framing the provisions of sub-section (3) (b) of Section 12 for conferring the powers of supervision and control over the work of the Judicial Magistrates on the Sub-divisional Judicial Magistrate, the Additional Chief Judicial Magistrate has been expressly excluded as he is superior to the sub-divisional Judicial Magistrate in the heirarchy of Judicial Magistrates.
5. Section 15 which deals with subordination of Judicial Magistrates runs thus:-
"15. Subordination of Judicial Magistrates-(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
(2)The Chief Judicial Magistrate may, from time to time make Rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him".
As we have seen, under Section 12(2) only a Judicial Magistrate of the first class may be appointed as an Additional Chief Judicial Magistrate. Therefore, an Additional Chief Judicial Magistrate is also a Judicial Magistrate. Consequently when Section 15(1) says that the Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate it becomes evident that the Additional Chief Judicial Magistrate being a Judicial Magistrate answering the description of "every other Judicial Magistrate", is also subordinate to the Chief Judicial Magistrate. Section 15(2) provides that the Chief Judicial Magistrate may, from time to time, make Rules or give special orders for the distribution of business among the Judicial Magistrates subordinate to him. If Additional Chief Judicial Magistrate were not a Judicial Magistrate subordinate to the Chief Judicial Magistrate, in that event there would have been no provision in the Code for distribution or allocation of business to the Additional Chief Judicial Magistrate by the Chief Judicial Magistrate which would lead to a queer situation.
6. In this connection, let us compare the other relevant provisions of the Code. Section 17(1) empowers and requires the High Court, by using the word "shall' to appoint a Metropolitan Magistrate as the Chief Metropolitan Magistrate. Sub-section (2) of Section 17 empowers the High Court, as a matter of option, by using the word 'may', to appoint any Metropolitan Magistrate as an Additional Chief Metropolitan Magistrate. Section 19 deals with subordination of Metropolitan Magistrates and the same is reproduced below :-
" 19. Subordination of Metropolitan Magistrates - (I) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time to time, make Rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate".
(Emphasis supplied).
We thus find that in the case of Additional Chief Metropolitan Magistrate Section 19(1) specifically says that he shall be subordinate to the Sessions Judge, and it further says that every other Metropolitan Magistrate shall be subordinate to the Chief Metropolitan Magistrate. Section 19(1) in terms thus excludes the Additional Chief Metropolitan Magistrate from subordination to the Chief Metropolitan Magistrate. But sub-section (2) of Section 19 empowers the High Court to define the extent of subordination, if any, of the Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate. Sub-section (1) and sub-section (2) of Section 19 read together make it clear that unless the High Court defines the extent of subordination, if any, of the Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate, the former shall not be subordinate to the latter. There is no corresponding provision relating to Additional Chief Judicial Magistrate, like sub-section (2) of Section 19 dealing with the question of subordination of Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate, in Section 15 dealing with the question of subordination of Judicial Magistrates. Again while sub-section (2) of Section 15 and sub-section (3) of Section 19 both speak of the power of the Chief Judicial Magistrate and the Chief Metropolitan Magistrate respectively to make distribution of business among Judicial Magistrates/ Metropolitan Magistrates, sub-section (3) of Section 19 makes an additional provision for allocation of business to the Additional Chief Metropolitan Magistrate by the Chief Metropolitan Magistrate, but there is no such separate provision in Section 15 for allocation of business to the Additional Chief Judicial Magistrate. Understandably sub-section (3) of Section 19 has been so designed as to give power to the Chief Metropolitan Magistrate to allocate business to the Additional Chief Metropolitan Magistrate even if the High Court does not make the Additional Chief Metropolitan Magistrate subordinate to the Chief Metropolitan Magistrate in exercise of its power under sub-section (2) of Section 19. Again Section 20(1) authorises and requires the State Government, by using the word 'shall', to appoint an Executive Magistrate as District Magistrate of the district. Sub-section (2) of Section 20 authorises the State Government, as a matter of option, by using the word 'may' to appoint an Executive Magistrate as Additional District Magistrate of the district. Section 23 which deals with the subordination of the Executive Magistrates is reproduced below :-
"23. Subordination of Executive Magistrates - (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.
(2) The District Magistrate may, from time to time, make Rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate".
We thus find that Section 23(1) excludes Additional District Magistrate expressly from subordination to the District Magistrate. Sub-section (2) of Section 23 also authorises the District Magistrate to make distribution of business among the Executive Magistrates subordinate to him and allocation of business to Additional District Magistrate. Thus a careful study of the relevant provisions relating to the Additional Chief Judicial Magistrate, Additional Chief Metropolitan Magistrate and Additional District Magistrate will clearly bring out the distinction between the different kinds of such Additional Magistrates relating to the position of subordination. Such study will also make it clear that whatever provisions regarding subordination in respect of different kinds of Magistrates have been made by the legislature in the Code the same have been made consciously and discreetly with a full understanding of the implication of every such provision. The position that emerges thus is this. In the case of Additional District Magistrate the Code as we have seen, has made express provision excluding the Additional District Magistrate from subordination to District Magistrate. An Additional District Magistrate is therefore not subordinate to the District Magistrate. In the case of Additional Chief Metropolitan Magistrate the Code by using very clear language in Section 19 preferred not to make the Additional Chief Metropolitan Magistrate subordinate to the Chief Metropolitan Magistrate. At the same time the Code by enacting sub-section (2) of Section 19 expressly left an option to the High Court to make the Additional Chief Metropolitan Magistrate subordinate to the Chief Metropolitan Magistrate and also define the extent of such subordination. But in the case of Additional Chief Judicial Magistrate the Code not only did not exclude the Chief Judicial Magistrate either expressly or by implication from subordination to the Chief Judicial Magistrate but also clearly made him subordinate to the Chief Judicial Magistrate in Section 15(1) by expressly providing that the Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate (which obviously includes an Additional Chief Judicial Magistrate also) shall be subordinate to the Chief Judicial Magistrate. Therefore, the inevitable conclusion is that the Additional Chief Judicial Magistrate is subordinate to the Chief Judicial Magistrate for the purposes of the Code. That being so the Chief Judicial Magistrate is empowered to exercise his power of withdrawal and transfer under Section 410 Cr. P. C. even in respect of a case pending in the file of the Additional Chief Judicial Magistrate.
7. The next contention raised, as 1 have earlier mentioned, is that a third party is not entitle to make an application under Section 410 for withdrawal or transfer of a case. From a study of Section 410(1) Cr. P. C. which I have already quoted it will be seen that nothing is mentioned there restricting the locus standi of the persons competent to make an application under the said section. The power under Section 410 may be exercised by the Chief Judicial Magistrate even suo mom. There is no reason why the de facto complainant at whose instance the case was started, though as a police investigation case, and who is vitally interested in the matter should be debarred from moving the Chief Judicial Magistrate for exercising his power under Section 410 Cr. P. C. in a fit case. The questions whether it is at all a fit case for withdrawal and transfer and whether in the facts and circumstances the case should be at all withdrawn are indeed matters to be considered and decided by the learned Chief Judicial Magistrate in the background of the relevant facts and circumstances but he is certainly entitled to entertain an application for withdrawal and transfer under the said section even from a third party who is vitally interested in the matter as the de facto complainant in this case is. Accordingly, I find no merit in the present revisional application and the some is therefore dismissed. The learned Chief Judicial Magistrate is directed to dispose of the application under Section 410 Cr. P. C. in accordance with law with utmost expedition. Thereafter, the learned trial Court will also give priority to the disposal of the case and all applications pending at the level of the trial Court. Having regard to the facts and circumstances I direct the petitioner herein to pay a cost of Rs. 1,000/- to the opposite party No. 2 herein as the cost in this revisional proceeding within two weeks from the date.