1 This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner, original accused No.6 of Criminal Case No.584 of 2011 pending before the learned Judicial Magistrate, First Class, Dhandhuka, challenging the order dated 17.10.2011 passed by the learned Judicial Magistrate, First Class, Dhandhuka, below Exh.50 in the above case, by which, the request of the petitioner to transfer the said criminal case to the Court of the learned Chief Judicial Magistrate, Ahmedabad (Rural) came to be rejected.
2 Learned counsel for the petitioner would submit that, in view of the directions issued by the High Court in the Circulars, inconvenience of the parties would not be a ground for not transferring the criminal case. It is further submitted that considering the allegations leveled in the FIR and considering the alleged amount of misappropriation, the criminal case is required to be transferred to the Court of Chief Judicial Magistrate, Ahmedabd (Rural).
3 The subject matter and the basic contention raised by the learned counsel for the petitioner has genesis in Circulars No.D/2012/82 dated April 21, 1982 and No.2912/82 dated August 24, 1982 and subsequent Circular No.D/2912/08 dated 21.2.1998, issued by the High Court. In the above Circulars, instructions have been issued by the High Court to all the Chief Judicial Magistrates working in the State to review pending cases filed under Sections 408, 472 or 477A and 420 of the Indian Penal Code for withdrawal from the courts of the Judicial Magistrate, First Class, in the District to the Court of Chief Judicial Magistrate, in consultation with the Sessions Judge of the respective District, so that, a Senior Officer like the Chief Judicial Magistrate may be available for trying those cases being intricate or serious in nature. Similar instructions have been issued to the Chief Metropolitan Magistrate, Ahmedabad, to review such cases in consultation with the Principal Judge, City Civil & Sessions Court, Ahmedabad. The directions so contained in the above Circulars were to be scrupulously followed as reiterated in Circular No.2912 of 1998 dated 21.2.1998.
4 The petitioner, facing a criminal case under Sections 409, 468,. 471, etc. of the Indian Penal Code, requested the Judicial Magistrate, First Class, to transfer his case to the Chief Judicial Magistrate, which came to be rejected by the Judicial Magistrate, First Class, by assigning a reason that the Judicial Magistrate, First Class, is competent under the law and has jurisdiction to try the case and the Circulars relied upon by the petitioner are not mandatory to construe that all cases of such nature be transferred to the Court of the Senior Judicial Officer, namely, the Chief Judicial Magistrate.
5 Upon issuance of notice and on passing an order on 11th January 2012 in Criminal Misc. Application No.17059 of 2011, the Additional Registrar, High Court of Gujarat, has filed affidavit and submitted that the directions and guidelines contained in earlier Circular and so reiterated in Circular dated 21.2.1998 are consonance with the provisions of Section 407 of the Code of Criminal Procedure, 1973 (for short 'the Code'] and a note dated 2.8.1982 submitted by the Registry clarified certain factual aspects that the Circular, as above, never contemplated blanket transfer of such category of cases, but each case is required to be reviewed on its own merits.
6 Mr.
Gautam Joshi, learned counsel appearing for respondent No.4 has submitted that Section 407 of the Code confers the power upon the High Court to transfer the case and appeals in certain circumstances and sub-section (1) of Section 407 provides circumstances and types of cases to be considered by the High Court by exercising such power and sub-section (2) even empowers the High Court to transfer the case either on the report of the lower court or on the application of a party interested or on its own initiative. Thus, If Section 407 is seen in the context of Section 410 of the Code, where even Chief Judicial Magistrate is empowered to withdraw any case from Judicial Magistrate, First Class, in the eventualities mentioned therein, it is evident that the Circulars issued by the High Court, relied upon by the petitioner-accused, never conferred any blanket discretion on Judicial Magistrate, First Class, to transfer the case upon a request made by the accused or any other party aggrieved. It is, therefore, submitted that the discretion exercised by Judicial Magistrate, First Class, in the impugned order, does not suffer any illegality or arbitrariness in any manner, nor it can be said to be contrary to law and, therefore, the present petition deserves to be rejected.
7 Considering the overall facts and circumstances of the case, and on perusal of the provisions of Sections 407 and 410 of the Code, where powers have been conferred upon the High Court even to exercise suo-motu, the circumstances narrated in sub-section (2) of Section 407 and clarificatory note submitted by the Registry as early as in August 1982, in my view, the guidelines contained in the Circulars issued by the High Court never conferred any absolute or blanket discretion upon the concerned Magistrate either to transfer or to withdraw such case by the learned Chief Judicial Magistrate. Therefore, refusal to transfer the case to the Court of of the learned Chief Judicial Magistrate, Ahmedabad (Rural) by the impugned order does not require any further deliberation since the Court in which the criminal case of the petitioner is pending has jurisdiction to try such case and no prejudice is likely to be caused to either of the parties including the petitioner-accused. No case is made out to grant the prayer made in the present petition. Hence, this petition is rejected. Notice is discharged. Consequently, other two applications are disposed of accordingly.
(ANANT S. DAVE, J.) (swamy) Top