Full Judgment
Thadani, C.J.
1. This is an application Under Section 526 of the Code of Criminal Procedure in a case pending before the learned First Class Magistrate at Dhubri, in which the complainant is one Bangshidhar Agarwalla and the accused one Dinanata Sarma.
2. The complaint was filed by the complainant Under Section 379 of the Indian Penal Code against the accused, and it was sent to the Police by the learned First Class Magistrate for a preliminary enquiry. In due course, the Police submitted a report, stating that the matter was a civil matter. The learned Magistrate, acting upon the report of the Police, dismissed the complaint Under Section 203 of the Code of Criminal Procedure. The complainant then applied under the provisions of Section 436, Cr. P.C. to the Sessions Judge, L. A. D., who, by his order, dated 10-1-51, set aside the order of dismissal and directed the learned First Class Magistrate to make a further enquiry into the complaint. Meanwhile, the original Magistrate was replaced by another 'Magistrate, and when the matter came up before the successor of the original Magistrate, he ordered a preliminary enquiry to be made, in spite of the order of the learned Sessions Judge for a further enquiry. We will presently refer to this aspect of the case.
3. The application before us is one for the transfer of the case pending before the present Magistrate to some other Court of competent jurisdiction. The transfer is sought on the grounds mentioned in paragraphs 7, 8 and 9 of the petition. We called upon the learned Magistrate to make his remarks, if there were any to make, with reference to the allegations contained in paragraphs 7, 8 and 9 of the petition. The remarks are before us. It appears that Mr. D. N. Sarma is no longer a Director of Procurement at Dhabi.
4. As regards paragraph 8, we do not think - assuming that the allegation of fact is correctly stated, - that it constitutes an apprehension in the mind of the complainant that he would not obtain a fair trial at the hands of the Magistrate nor do we think the statement contained in para--graph 9, can be fairly regarded as creating an apprehension in the mind of the complainant that he would not obtain a fair trial at the hands of the Magistrate.
5. We do not, therefore, think that there is any substance in the application for transfer of the case to some other Magistrate.
6. The application for transfer is accordingly dismissed. While dismissing the application for transfer, we wish to point out to the Magistrate that alter the order for further enquiry was made by the learned Sessions Judge, L. A. D., the learned Magistrate was not competent to hold a further preliminary enquiry. What he is required to do is to hold further enquiry, and not a further preliminary enquiry. The meaning of further enquiry is that he must now proceed to hear the case as though process has been Issued against the accused person, and try the case in accordance with the procedure laid down for the trial of a summons or warrant case, as the case may be. With these observations, we dismiss the application for transfer.
7. Deka, J.: I agree.