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Criminal Revision Application No. 75 of 1957, decided on 4th August 1958.
, S. 439‑Revision application questioning order binding down applicant under S. 118, Cr. P. C.‑Period of bond for good behaviour expiring pending revision‑State counsel cannot oppose application.
, S. 192‑District Magistrate can transfer only cases not appeals.
, S. 407‑Does not apply to appeals from orders under S. 118, Cr. P. C. binding down to be of good behaviour.
, S. 406‑‑Does not empower District Magistrate to transfer appeal, against order under S. 118, Cr. P. C., binding down to be of good behaviour, to Additional District Magistrate.
Date of hearing : 4‑8‑58.
--‑ This is an application under S. 439, Cr. P. C., against the order of the Additional District Magistrate, Tharparkar, rejecting the appeal of the applicants Jamal Khan son of Jahan Khan, Punnu son of Hussain and maintaining the order of the S. D. M. Mirpurkhas, passed under S. 118, Cr. P. C.
The two applicants, along with six others, had been put up before the S. D. M., Mirpurkhas, for proceedings under S. 110, Cr. P. C. The learned S. D. M., after holding inquiry, bound down the two applicants and one Ghulam Rasool in the sum of Rs. 3,000 on their furnishing two solvent sureties, each in the like amount, for keeping good behaviour for 12 months, and directing that the sureties should be respectable men of zamindar class, paying land revenue of Rs. 5,000 or more. Against this order, the applicants filed an appeal in the Court of the D. M. Mirpurkhas, who, after hearing the advocate for the applicants, admitted the appeal, and issued notice to the Crown, and some days thereafter transferred it to the A. D. M, for disposal according to law. The latter allowed the appeal of Ghulam Rasul, and rejected that of the applicants. It is against this order of the A. D. M. that the present application has been filed.
The grounds urged before me on behalf of the applicants are threefold (1) that the order passed under S. 118 has now become infructuous, as the period for which‑ the applicants were directed to be bound down, for good behaviour, has already expired, (2) that there has been mis‑joinder of parties, as the leader of the gang has been let off by the S. D. M. (3) that the D. M. had no jurisdiction to transfer the appeal to A. D. M, and consequently the order passed by the A. D. M. is without jurisdiction.
The learned A. A. G. for the State, relying upon the decision reported in A I R 1937 Sind at page 26 has conceded that since the order of the A.D.M. has now become infructuous, he can not oppose the application. In view of this concession on the part of the A. A. G , I need not deal with other two points, although in my view, there is substance in point No. 3 namely that .the D., M. has no power to transfer an appeal of this nature to A. D. M, for dis posal. Powers to transfer are conferred upon D. M. by Ss. 192 and 407, Cr. P. C. S. 192 reads as under :‑
"(1) Any Chief Presidency Magistrate, District Magistrate, or Sub‑Divisional Magistrate may transfer any case of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
(2) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial ; and such Magistrate may dispose of the case accordingly."
Thus, under subsection (1) of section 192, Cr, P. C., D. M. can transfer only cases and not appeals, and they can be transferred only for the purpose of inquiry or trial, and the Magistrate to whom he can transfer should be subordinate to him. In this case none of the requirements is satisfied. Appeal is not a case. 1n an appeal question of inquiry or trial does not arise and A.D.M. B who enjoys concurrent jurisdiction, is not subordinate to D. M. S. 192, Cr. P. C. therefore cannot be called in aid to support the order of transfer.
Section 407, Cr. P. C. reads as under :‑
"(1) Any person convicted on a trial held by any Magistrate of the second or third class, or any person sentenced under section 349 (or in respect of whom an order has been made or a sentence has been passed under S. 380) by a Sub‑divisional Magistrate of the second class, may appeal to the District Magistrate.
(2) The District Magistrate may direct that any appeal under this section, or any class of such appeals, shall be heard by any Magistrate of the first class subordinate to him and empowered by the Local Government to hear such appeals, and thereupon such appeal or classes of appeals be presented to such subordinate Magistrate, or, if already presented to the District Magistrate, may be transferred to such subordinate Magistrate. The District Magistrate may withdraw from such Magistrate any appeal or class of appeals so presented or transferred."
The perusal of this section clearly shows that it does not apply to an appeal from the order passed by S. D. M. under S. 118, Cr. P. C. The appeals that the A. D. M. has power to hear are those C which are filed against the judgments of 3rd and 2nd class Magis trates, while order under section 118, Cr. P. C., is neither a judgment nor is it passed by a 3rd or 2nd class Magistrate. There is no conviction recorded or any sentence passed in 110
Cr. P. C., proceedings. Only the S. D. M., with powers of 1st class Magistrate, can take proceedings under S. 110, Cr. P. C.
Section 406 under which appeals against the orders passed by S. D. M. under S. 118 are filed does not itself empower D. M. to transfer them to another Magistrate.
The order of transfer passed by the D.M. is therefore without jurisdiction, and consequently the order passed by the A. D. M. in the appeal will also be without jurisdiction.
I allow the application and set aside the order passed by the A. D. M.
A. H. Application allowed.
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