Delhi High Court: In a petition filed under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) challenging the order dated 07-06-2024, whereby a complaint case was transferred by Additional Chief Metropolitan Magistrate, West Delhi, Dinesh Kumar Sharma, J., stated that under Section 410 of Criminal Procedure Code, 1973 (‘CrPC’) and Section 450 of BNSS, the power conferred upon the Chief Judicial Magistrate was only administrative in nature. The Court of Chief Judicial Magistrate could not “transfer” a case from one Court or another upon an application being moved or suo motu. The Court further stated that Respondent 2 should be at liberty to move a proper application before Principal District and Sessions Judge under Section 448 of BNSS for transfer of case from one Court to another.
Background
Respondent 2 was the petitioner’s father-in-law, and they were locked in several litigations related to matrimonial disputes between the petitioner and son of Respondent 2. The present petition was filed predominantly on the ground that under Section 410 of CrPC, the Chief Metropolitan Magistrate or Additional Chief Metropolitan Magistrate had no power to transfer a case from one criminal Court to another criminal Court in its jurisdiction. The petitioner submitted that as per Section 19(3) of the CrPC, the Chief Metropolitan Magistrate has jurisdiction only to the extent of distribution of business among the Metropolitan Magistrate.
The question involved in the present petition was related to the power of the Chief Metropolitan Magistrate/Additional Chief Metropolitan Magistrate relating to transfer of case from one Court of Metropolitan Magistrate to another Court of Metropolitan Magistrate.
Analysis, Law, and Decision
The Court observed that Section 408 of CrPC and Section 448 of BNSS conferred power upon Sessions Judge to pass an order of transfer if it was expedient for the ends of justice, of any case from one Criminal Court to another Criminal Court in his sessions division. The High Court and the Sessions Judge might exercise its jurisdiction on the report of the lower Court or on the application of a party interest or on its own initiative. Thus, CrPC had specifically conferred the power upon Supreme Court, High Court and Sessions Court of transfer of cases. The basic question was whether the Chief Judicial Magistrate had the power to transfer the case from one Court to another Court on an application being moved or on its own.
The Court stated that it was pertinent to mention that the subordination of the Additional Chief Judicial Magistrate to the Chief Judicial Magistrate was only related to the administrative functions. Regarding the judicial functions, the Court stated that Section 10(2) of BNSS specifically provided that the Additional Chief Judicial Magistrate should have all the powers of the Chief Judicial Magistrate.
The Court referred to Radical Works (P) Ltd. v. Padmanabh T.G., in Crl.P. No. 1291 of 2023, decided on 18-04-2023, Special Railway Magistrate, Jabalpur v. Virendra Kumar Jain, 1999 SCC OnLine MP 357 and Chandrkantbhai Bhaichandbhai Sharma v. State of Gujarat, 2015 SCC OnLine Guj 2891 and stated that the Court was of firm view that since the legislature in its own wisdom had conferred the power of the transfer only to Supreme Court, High Courts and the Sessions Court, it could not be given by way of inference to the Court of Chief Judicial Magistrate. The law of interpretation did not provide interpretation of any provision which in any manner contravened the intention of the legislature. The legislature could have specifically given the power of transfer to the Chief Judicial Magistrate if it would have considered it proper to do so.
The Court stated that under Section 410 of CrPC and Section 450 of BNSS the power conferred upon the Chief Judicial Magistrate was only administrative in nature. The Court of Chief Judicial Magistrate could not “transfer” a case from one Court or another upon an application being moved or suo motu. Further, the Additional Chief Judicial Magistrate could not exercise the administrative power of transfer of case from one Court to another within its jurisdiction unless an order was passed by the High Court under Section 10(2) of BNSS.
The Court further stated that Respondent 2 should be at liberty to move a proper application before Principal District and Sessions Judge under Section 448 of BNSS for transfer of case from one Court to another. Accordingly, the Principal District and Sessions Judge might exercise the jurisdiction without being influenced by the order of this Court in accordance with law.
[Sudesh Chhikara v. State (NCT of Delhi), 2025 SCC OnLine Del 1641, decided on 17-03-2025]
Advocates who appeared in this case :
For the Petitioner: Jaipal Singh, Advocate.
For the Respondents: Hemant Mehla, APP for State; Kanhaiya Singhal, Amicus Curiae along with Ujwal Ghai, Pulkit Jolly and Tamanna Agarwal, Advocates; Baljit Singh, Advocate.
Buy Code of Criminal Procedure, 1973 HERE
