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Bombay High Court
Babu Hasanali Mujawar vs Emperor on 27 March, 1928
Equivalent citations: 115 Ind Cas 399
Author: A Charles Fawcett
Bench: C Fawcett, Acting, Mirza


Charles Fawcett, Acting, C.J.

1. It is objected that the First Class Magistrate, having had the case transferred to him by the Sub-Divisional Magistrate, had no power to transfer the case again to the Third Class Magistrate who finally disposed of it. There is no doubt authority for this proposition in Bashir Husain v. Ali Husain 23 Ind. Cas. 1006 : 36 A. 166 : 12 A.L.J. 225 : 15 Cr. L.J. 406. But assuming that this is so, still in our opinion the case is one that falls under Clause (f) of Section 529, Criminal Procedure Code. The First Class Magistrate was not empowered by law to transfer the case to the Third Class Magistrate, but he erroneously and in good faith did so transfer it. There is nothing to show that the Magistrate did not believe that he had power to transfer; and we should, in the absence of anything to the contrary, assume bona fides. Accordingly his proceedings are not to be set aside merely on the ground of his not being so empowered. That, in our opinion, means that his order of transfer should not be treated as so invalid as to prevent the Third Class Magistrate who took cognizance upon the transfer, from having jurisdiction to try the accused.

2. Mr. Joshi for the applicant contends that the case falls under Clause (p) of Section 530, Criminal Procedure Code. But this is not a case of a Magistrate having no legal power to try the accused for the offence in question. He had that power, but the proceedings are merely alleged to be vitiated because of the order of transfer that I have mentioned. That being so, the transfer of the case is the vital defect, and not the trial of the offender. We do not think, therefore, that there are sufficient grounds for our interference on that point.

3. As regards the second point Mr. Joshi alleges that, as there was no common object specified in the charge, the trial is vitiated, and in support of this be cites Sabir v. Queen-Empress 22 C. 276. On the other hand, there are many sections in the Code which show that a trial should not be set aside merely because of some omission or error in the charge, unless the accused has been misled in his defence, or a failure of justice has resulted: see for instance Sections 232, 535 and 537, Clause (a), Criminal Procedure Code We agree with the Court below that there is nothing to show that this omission in any way prejudiced the accused or resulted in a failure of justice. We, therefore, see no reason to interfere, and the application is dismissed.

Mirza, J.

4. I agree.

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