Case Note & Summary
The petitioners, Bharat Tukaram Redkar and others, were accused in separate criminal cases for offences under the Prevention of Corruption Act, 1988 (sections 5(1)(c), (d) read with 5(2) and 13(1)(c), (d) read with 13(2)) and under the Indian Penal Code (sections 120B, 420, 468, 471, 109 read with 34). The Special Judge, after considering the evidence, found that there was no prima facie case for the corruption offences but that the material disclosed offences under the IPC. Consequently, by order dated 21st April 1998, the Special Judge transferred the case to the Chief Judicial Magistrate under Section 228 of the Code of Criminal Procedure, 1973 for trial of the IPC offences. The petitioners then filed applications for discharge before the Chief Judicial Magistrate, which were rejected. They preferred revisions before the Sessions Court, which were also dismissed on the ground that the Chief Judicial Magistrate had no jurisdiction to entertain the discharge application after the transfer under Section 228 CrPC. The petitioners challenged this order by way of criminal writ petitions before the Bombay High Court. The High Court held that the Sessions Court's reasoning was correct: once a case is transferred under Section 228 CrPC, the transferee court cannot entertain a discharge application as the transfer itself implies that the case is not exclusively triable by the Special Judge. The High Court also noted that the Special Judge was competent to try IPC offences under Section 4(3) of the Prevention of Corruption Act, but in this case, he chose to transfer the case. The petitions were dismissed.
Headnote
A) Criminal Procedure - Discharge Application - Jurisdiction of Magistrate after Transfer under Section 228 CrPC - The Chief Judicial Magistrate cannot entertain a discharge application after the case is transferred by the Special Judge under Section 228 CrPC, as the transfer is based on a finding that the case is not exclusively triable by the Special Judge. The Sessions Court's order rejecting the revision was upheld. (Paras 1-2)
B) Prevention of Corruption Act - Trial of IPC Offences - Section 4(3) of Prevention of Corruption Act, 1988 - The Special Judge is competent to try offences under the Indian Penal Code along with offences under the Prevention of Corruption Act by virtue of Section 4(3) of the Act. However, in this case, the Special Judge found no prima facie case under the PC Act and transferred the case to the Chief Judicial Magistrate for trial of IPC offences. (Paras 3-4)
Issue of Consideration
Whether the Chief Judicial Magistrate could entertain an application for discharge after the case was transferred to him by the Special Judge under Section 228 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the criminal writ petitions, upholding the Sessions Court's order that the Chief Judicial Magistrate could not entertain the discharge application after the case was transferred under Section 228 CrPC.
Law Points
- Jurisdiction of Chief Judicial Magistrate to entertain discharge application after transfer under Section 228 CrPC
- Competence of Special Judge to try IPC offences along with PC Act offences under Section 4(3) of Prevention of Corruption Act
- 1988
Case Details
2005 LawText (BOM) (04) 106
Criminal Writ Petition No.2499 of 2004 with Crl.W.Ps.Nos.2500 & 2501 of 2004
Mr. A.S. Khandeparkar for Petitioners, Mr. K.V. Saste, A.P.P. for Respondents
Bharat Tukaram Redkar and others
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Nature of Litigation
Criminal writ petitions challenging the order of Sessions Court rejecting revision against rejection of discharge applications.
Remedy Sought
Petitioners sought to quash the order of Sessions Court and allow their discharge applications before the Chief Judicial Magistrate.
Filing Reason
The petitioners were accused in cases under the Prevention of Corruption Act and IPC. The Special Judge transferred the case to the Chief Judicial Magistrate under Section 228 CrPC after finding no prima facie case under the PC Act. The petitioners then filed discharge applications before the Chief Judicial Magistrate, which were rejected. The Sessions Court upheld the rejection on the ground that the Magistrate had no jurisdiction to entertain the discharge application after transfer under Section 228 CrPC.
Previous Decisions
The Special Judge by order dated 21st April 1998 transferred the case to the Chief Judicial Magistrate under Section 228 CrPC. The Chief Judicial Magistrate rejected the discharge applications. The Sessions Court dismissed the revisions against that order.
Issues
Whether the Chief Judicial Magistrate could entertain an application for discharge after the case was transferred to him by the Special Judge under Section 228 of the Code of Criminal Procedure, 1973.
Submissions/Arguments
Petitioners argued that the Chief Judicial Magistrate had jurisdiction to entertain the discharge application.
Respondent State supported the Sessions Court's order that the Magistrate had no such jurisdiction.
Ratio Decidendi
Once a case is transferred by a Special Judge to a Chief Judicial Magistrate under Section 228 CrPC on the ground that the case is not exclusively triable by the Special Judge, the transferee court cannot entertain an application for discharge as the transfer itself implies that the case is to be tried by the Magistrate and the question of discharge is not open at that stage.
Judgment Excerpts
To that extent, the observations made by the Sessions Court in the impugned order is correct. I see no reason to depart from the view so expressed by the Sessions Court.
In the present case, however, when the evidence collected by the investigating agency was placed before the Special Judge to consider the same for framing of charge, the Special Judge by his order dated 21st April 1998 observed that the material was not sufficient to frame charge under section 5(1)(c) and (d) read with section 5(2) and section 13(1)(c) and (d) read with section 13(2) of the Prevention of Corruption Act.
Procedural History
The Special Judge transferred the case to the Chief Judicial Magistrate under Section 228 CrPC on 21st April 1998. The petitioners filed discharge applications before the Chief Judicial Magistrate, which were rejected. The petitioners then filed revisions before the Sessions Court, which were dismissed on 13th July 2004. The petitioners challenged the Sessions Court's order by filing criminal writ petitions before the Bombay High Court, which were dismissed on 6th April 2005.
Acts & Sections
- Prevention of Corruption Act, 1988: 5(1)(c), 5(1)(d), 5(2), 13(1)(c), 13(1)(d), 13(2), 4(3)
- Indian Penal Code, 1860: 120B, 420, 468, 471, 109, 34
- Code of Criminal Procedure, 1973: 228
