Calcutta High Court
Sushanta Jana vs The State Of West Bengal And Ors. on 13 October, 1993
Equivalent citations: (1994)1CALLT196(HC)
JUDGMENT Arun Kumar Dutta, J.
1. The instant Revisional Application by the petitionercomplainant (hereinafter referred to as complainant) under Sections 397, 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter shortened into Code) is directed against the orders dated 16.11.92 and 30.11.92 passed by the Judicial Magistrate, 2nd Court, Howrah, in Case No. 1615C of 1991 before him, as also the order No. 144G dated 18.11.92 passed by the Chief Judicial Magistrate at Howrah in connection therewith, on the grounds set forth therein, in the circumstances hereunder stated.
2. The complainant had been holding a shop room (hut) at C.S. Plot No. 744 of Mauza-Santashpur, P.S. Bauria, District Howrah, under Licence from the Zilla Parishad. It is alleged by the complainant that on 20.11.91 at about 8.30 A.M. the opposite-party Nos. 2 to 7-accused (hereinafter referred to as accused), along with others, armed with various weapons, had trespassed into his aforesaid shop room and had dismantled the same under threat, causing loss of goods worth Rs. 5,000/-, money of Rs. 300/- only approximately in notes and coins, and Rs. 25,000/- only as value of the structure destroyed by them.
3. The accused Nos. 2 and 3 are the officers of Bauria P.S., while the accused Nos. 4 and 5 are the Commissioners of Uluberia Municipality, and the accused No. 6 is an employee thereof. The accused Nos. 4 to 6 had much influence and the witnesses of the complainant were apprehensive of coming to Uluberia. Being apprehensive of pursuing his legal remedies before the Judicial Magistrates Courts at Uluberia, the complainant had accordingly lodged a petition of complaint before the Chief Judicial Magistrate (hereinafter shortened into C.J.M.) at Howrah on 2.12.1991 on the aforesaid allegations against the accused persons, whereupon he (C.J.M.) had taken cognizance of the alleged offence and had transferred the relevant case, being No. 1615C of 1991, to the learned Judicial Magistrate, 2nd Court, Howrah, for disposal.
4. The Judicial Magistrate, 2nd Court, Howrah, after examination of the witnesses on 7.12.1991 had issued process against the accused persons under Sections 147/427/379/448, I.P.C., fixing 24.1.92 for their appearance.
5. The accused persons had appeared before the aforesaid learned Magistrate on 24.1.92 and had filed a petition for their discharge on the plea that the relevant case was not maintainable before him since the place of occurrence was within Uluberia Sub-Division, and not within Howrah Sadar Sub-Division. On objection being filed by the complainant thereagainst, the matter was heard by the learned Magistrate in presence of both sides. And, by his impugned order dated 16.11.92 the learned Magistrate had held that since the place of occurrence admittedly fell within the jurisdiction of Uluberia Sub-Division, his Court has no jurisdiction to try the relevant case. He further held that the accused persons could not still be discharged and the proceedings could not be dropped on the point of jurisdiction. He had, accordingly, rejected the aforesaid petition filed by the accused persons on 24.1.92, and had directed that notice of the learned C.J.M. should be drawn so that the case may be withdrawn or any other order may be passed as the latter may deem fit.
6. The learned Judicial Magistrate by his subsequent impugned order dated 30.11.92, upon perusal of a letter received from the office of the C.J.M. Howrah, being No. 144-G dated 18.11.92, had directed the relevant case record to be sent to the learned Sub-Divisional Judicial Magistrate at Uluberia in terms thereof.
7. Being aggrieved by the aforesaid impugned order dated 16.11.92, and the subsequent impugned order dated 30.11.92 passed by the learned Judicial Magistrate concerned on the basis of the impugned letter No. 144G dated 18.11.92 from the learned C.J.M., Howrah, the complainant has moved this Court in Revision for appropriate order in terms thereof on the grounds set out therein.
8. The petitioner's instant Revisional Application is resisted by the accused-opposite-party Nos. 2 to 7. The opposite-party No. 1 the State of West Bengal, though duly served, has not come up to oppose the application at the time of hearing.
9. Upon the respective contentions of the contending parties, such as they are, the moot point emerging for consideration is whether the learned C.J.M. at Howrah was competent to take cognizance of the alleged offence, and the learned Judicial Magistrate concerned at Howrah was competent to try the alleged offence in view of the fact that the place of occurrence of the alleged offence, admittedly, fell within the jurisdiction of Uluberia SubDivision, and not within the jurisdiction of Howrah Sadar Sub-Division, The learned Advocate for the accused-opposite parties had waxed eloquent answering the point posed in the negative. But to that I would at once note with a minute of dissent, upon due consideration of the submissions made by the learned Advocates for the both sides and the relevant provisions of the Code, in the facts and circumstances herein, that the learned C.J.M. was quite competent to take cognizance of the alleged offence and the learned Judicial Magistrate concerned at Howrah is also quite competent to try the alleged offence for the reasons I shall presently state.
10. Section 12(1) of the Code provides for appointment of a Chief Judicial Magistrate for every district; and the Code also provides for the powers and duties to be discharged by him thereunder. The relevant provisions of the Code being, what they are, it would be difficult to hold that the C.J.M. appointed for the entire district would be incompetent to take cognizance of an offence committed within the territorial jurisdiction of the district for which he is appointed. Let alone the C.J.M., a Judicial Magistrate of the 1st Class and a Judicial Magistrate of the 2nd Class, specially empowered, may take cognizance of any offence under Section 190 of the Code in terms thereof. The provisions of the Code apart it had been clearly held by the Full Bench of Rajasthan High Court in Mahesh Chand and etc. v. State of Rajasthan and etc., 1985 Cr LJ 301, that "the Chief Judicial Magistrate is competent to take cognizance of any offence, committed anywhere in his district, notwithstanding the fact that the area in which the offence was committed, happens to fall within the local limits of the area assigned by the Chief Judicial Magistrate to some other Judicial Magistrate, subordinate to him, in accordance with the provisions of Sections 14 and 15 Cr. P.C. Of course, taking of such cognizance by the Chief Judicial Magistrate would be possible only if the complaint or police report, as the case may be, is presented in his Court instead of being presented in the Court of the Judicial Magistrate within the local limits of whose jurisdiction the crime might have been committed, as in the relevant case before us. That being so, there could be no mistaking that the learned C.J.M., Howrah, was quite competent to take cognizance of the alleged offence, as he did. The submissions made on behalf of the accused-opposite parties that it was incompetent for the learned C.J.M. to take cognizance of the alleged offence clearly appears to be entirely ill-made and absolutely disingenuous.
11. Let me now consider whether the learned Judicial Magistrate concerned at Howrah was competent to try the alleged offence which had admittedly been committed within Uluberia Sub-Division, and not within Howrah Sadar Sub-Division. The learned Judicial Magistrate concerned has himself recorded in his impugned order 16.11.92 that he has been appointed as Judicial Magistrate of the 1st Class in the District of Howrah to be ordinarily stationed at Sadar Sub-Division. As a Judicial Magistrate appointed for the (entire) District of Howrah his jurisdiction clearly extends to the whole District. There could clearly, therefore, be no inherent lack of jurisdiction on his part to try an offence committed within the territorial jurisdiction of the district, though ordinarily he should try offences committed within the jurisdiction of Howrah Sadar Sub-Division where he is ordinarily stationed. It would also be pertinent to note in this context that the Hon'ble Supreme Court in Purushottamdas Dalmia v. State of West Bengal, , has held that Section 177 of the Code (as it then stood) simply says that ordinarily every offence would be tried by a court within the local limits of whose jurisdiction it was committed. It does not,say that it would be tried by such court except in the cases mentioned in Sections 179 to 185 and 188 or in cases specially provided by any other provision of law. It leaves the place of trial open. The Supreme Court has further held in Ram Chandra Prasad v. State of Bihar, , that an order of a Special Judge was not to be set aside on the ground of his having no territorial jurisdiction to try the case, when no failure of justice had actually taken place, in the facts and circumstances stated therein. A Division Bench of this Court had also held as early as 1932 in Golam Rahaman Khan and Ors. v. Kali Pada Manna and Anr., 36 CWN 796, that "when the limits of the jurisdiction of a Magistrate of the first class has not been defined under Section 12(1) of the Criminal Procedure Code, such jurisdiction extends to the whole of that district under sub-section (2). Consequently such a Magistrate, stationed at Sudder, has jurisdiction in the matter of proceedings under Section 107, Cr. P.C., in respect of a breach of peace in a Sub-Division of the District, when the same has been transferred to him."
12. In view of the relevant provisions of the Code and the decisions referred to above, there could be little doubt that the learned Judicial Magistrate concerned at Howrah was not incompetent to try the alleged offence even though the same had been allegedly committed within Uluberia SubDivision, and not within Howrah Sub-Division, in the peculiar facts and circumstances of the relevant case. The materials on record would indicate that the learned C.J.M. had transferred the relevant case to the learned Judicial Magistrate concerned at Howrah for disposal in view of the allegations made by the complainant that some of the accused persons had much influence at Uluberia Sub-Division and the witnesses were apprehensive of coming to Uluberia, and that the complainant himself was also apprehensive of pursuing his legal remedies before the Courts of the Judicial Magistrates at Uluberia, in the circumstances stated by him.
13. Let alone the discussions above, it would pretty clearly appear from the materials on record that on the relevant petition of complaint being filed by the complainant before the learned C.J.M. at Howrah, the latter had taken cognizance of the alleged offence, and had transferred (made over) the case to the learned Judicial Magistrate, 2nd Court at Howrah, subordinate to him (C.J.M.) and competent to try the alleged offence, presumably under Section 192 of the Code. The learned Judicial Magistrate concerned at Howrah was, therefore, all the more empowered to try the alleged offence since the same had been lawfully made over to him by the learned C.J.M. for trial according to law. The relevant case so made over (transferred) by the learned C.J.M. to the learned Judicial Magistrate concerned under Section 192 of the Code does not appear to have been withdrawn or recalled by the former (C.J.M.) under Section 410 of the Code, which he was competent to do thereunder. None of the learned Advocates for the parties concerned could either state whether any order had been passed by the learned C.J.M. under Section 410 of the Code withdrawing or recalling the relevant case from the learned Judicial Magistrate concerned at Howrah. A case once made over by a C.J.M. under Section 192 would only be withdrawn/recalled by him by passing a judicial order under Section 410 and not by issuing a letter, the way he is stated to have done so, as appearing from the subsequent impugned order dated 30.11.92 passed by the learned Judicial Magistrate concerned. The withdrawal of the relevant case, if any so withdrawn, from the learned Judicial Magistrate concerned under a communication by letter No. 144-G dated 18.11.92 from the learned C.J.M. concerned could neither therefore be said to be according to law. The impugned orders dated 16.11.92 and 30.11.92 passed by the learned Judicial Magistrate concerned at Howrah, as also the aforesaid relevant letter, being No. 144-G dated 18.11.92 from the learned C.J.M., Howrah, referred to in the aforesaid subsequent order dated 30.11.92 passed by the learned Judicial Magistrate concerned are all accordingly liable to be quashed.
14. In view of the discussions above, the Revisional Application succeeds. The impugned orders dated 16.11.92 and 30.11.92 passed by the learned Judicial Magistrate concerned in the relevant proceedings, as also the C.J.M's relevant letter, being No. 144-G dated 18.11.92, referred to in the aforesaid subsequent impugned order dated 30.11.92, be all accordingly hereby quashed.
15. Let the records of the relevant case, if already sent to the learned Sub-Divisional Judicial Magistrate at Uluberia, be forthwith sent back to the Court of the learned Judicial Magistrate concerned at Howrah for enabling him to try the relevant case without any further delay. The learned Judicial Magistrate concerned at Howrah shall seek to try and dispose of the relevant case, as early as: possible, preferably within a period of six months from the date of communication of this order.
Let copies of this Judgment and Order be forthwith sent to the Courts below for compliance.