Bannerji, J.
1 This is an application by the complainant Maghu directed against an order, dated 24th August 1949, of the District Magistrate, Mahasu, transferring the case against the opposite party, from the Court of Shri Hira Chand, Magistrate Third Class, to the Court of Shri Negi Roop Singh, Magistrate Second Class, for inquiry and trial.
2. The facts, in brief, are: the complainant, Maghu, made a complaint against the accused persons, Kanwar Rattan Singh and others, in the Court of Shri Gopi Chand, Magistrate Third Class, alleging that the accused persons had unlawfully trespassed on his land and committed mischief. The learned Magistrate took cognizance but he was succeeded by another Magistrate Third Class, Shri Hira Chand, who proceeded with the trial, and recorded the evidence of five witnesses. While he was recording the evidence of the Patwari, the accused persons moved the District Magistrate, Mahasu, for transferring the case from the Court of Shri Gopi Chand to some other Court of competent jurisdiction.
3. The learned District Magistrate did not issue any notice to the complainant. He heard counsel for the accused-petitioners and also the public prosecutor and made the following order;
'The arguments are heard. The said file will be sent to Tehsildar Magistrate Second Class, Kasumpti, by way of transfer. Order announced.'
4. There is nothing in this order why such a transfer was thought fit and necessary by the learned District Magistrate. Clause (5) of Sub-section (2) of Section 528, Criminal P. C., makes it imperative for the Magistrate to record his reasons, in writing, for making such transfer. Counsel for the petitioner complains that he was not given an opportunity to be heard, when the Magistrate made that order. Though under Section 528, Criminal P.C., it is not obligatory to issue notice, yet the authorities of the High Courts lay down as a matter of prudence, that notice should issue to the opposite party. But a Magistrate ought to record his reasons why he thought it desirable to transfer the case. The learned counsel argues that the complainant was prejudiced by this action.
5. The Government counsel supported the order of the Magistrate on the ground that he could withdraw any 'case' under the provisions of Section 528, Criminal P. C., and make it over to any other Magistrate, subordinate to him.
6. It is common ground that Shri Gopi Chand exercised the power of a Magistrate Third Class and as such, he was not competent, under Section 190, Criminal P. C., to take cognizance of the case. His action would have been illegal but for the saving Section 529 (e), Criminal P. C., provided he acted erroneously in good faith. When the District Magistrate came to know that Shri Gopi Chand was not competent to take cognizance of the case and his successor, Shri Hira Chand, is also a Magistrate Third Class, his clear duty was, before he ordered the transfer to a Magistrate Second Class, to take cognizance of the case himself or indicated in his order that he had done so. Counsel for State argues that the mere fact that the District Magistrate has transferred the case to the Magistrate, Second Class, will be deemed that he took cognizance of the case and then transferred it. He refers to the authority of Shriniwas Krishna In re, 2 Cr. L. J. 582 : (7 Bom. L. R. 637). Bat this case relates to a transfer under Section 192, Criminal P. C., and not under Section 623, Criminal P. C., under which the District Magistrate purports to act here. The case is easily distinguishable. The mere transfer under 8. 523, Criminal P. C., does not by itself constitute a prior cognizance, where, as in the present case, it is necessary for the purpose of transfer.
7. In Gopal v. Emperor, A.I.R. (30) 1943 Pat. 245: (22 Pat. 433 S. B.), it was held as follows:
''There is no charm in the word 'cognizance'. It is nowhere defined in the Code of Criminal Procedure. It is a word of somewhat Indefinite import. It is perhaps not always used in exactly the same sense. It is argued upon the basis of Emperor v. Sourindra Mohan, 37 Cal. 412: (6 I. C. 8), that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.
That indeed expresses my own view. In my judgment, the word 'cognizance' is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the Initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of oases, not of persons, and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedings against any one, For example, where cognizance is taken upon a complaint, the complaint may be summarily dismissed, or may be dismissed after inquiry, under Section 203. The accused may never be summoned, or made a party to the proceedings. In fact the person complained against may never become an accused person in the technical sense. Nevertheless, having regard to the terms of Section 200 it is clear that in such a case cognizance has been taken. Section 200 seems to regard the taking of cognizance as something prior even to the examination of the complainant upon oath, since the section says : 'a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath.' ......
It is also to be noted that Section 190 is the first section under Chap. 14B which is headed 'conditions requisite for initiation of proceedings' and the marginal note is 'cognizance of offences by Magistrates'. It may then clearly be held that the law regards the taking of cognizance as the first condition requisite for the initiation of proceedings. It is after he has first taken cognizance that the Magistrate initiates proceeding should he think that course proper. He need not, however, do so at all, Cognizance, in ray view, is merely the mental decision of the Magistrate to take judicial notice of a case. This view of what the law regards as taking cognizance Is in accord with the ordinary dictionary meaning of the word. 'Cognizance' is defined as knowledge or notice, judicial or private.'
Reverting again to complaint cases, it is clear from the wording of the Code that it is only when the stage is reached for an order under Section 204, that is, for issue of process, that proceedings before the Magistrate can be said to commence, for Section 204 is the first section in the chapter headed 'of the commencement of proceedings before Magistrate.' ......
Such proceedings commence only when the accused person is made a party before the Court. That clearly follows, from the position of Section 204 and the heading of the chapter of which it forms the first section. In police cases judicial proceedings cannot necessarily be said to have commenced merely because a person is sent up and remanded to custody. The proceedings at that stage are still administrative .....
He may have been remanded to custody pending police investigation, but his prosecution has not started, and does not start, in my judgment, until the Magistrate makes up his mind to act upon a charge-sheet, and takes some overt action to implement his decision. Such an order may be an order to produce the accused from custody on a particular date to stand his trial. Such an order is the order corresponding to the order for issue of process, where the accused is not in custody, to the order under Section 204, which marks the commencement of judicial proceedings .....
The view finds support in the case of Golap Jan v. Bholanath, 33 Cal. 880 : (11 I. C. 311), a decision of so distinguished a Judge as Sir Lawrence Jenkins. It was there held where a complaint had been laid before a Magistrate for criminal breach of trust, and the Magistrate had referred the matter to the police under Section 202, Criminal P. C., for inquiry and report and finally dismissed the complaint under Section 203, Criminal P. C., without issuing process, that the prosecution had not commenced, and no suit for malicious prosecution was maintainable. Their Lordships referred to a series of decisions on the Code as showing that since process was not issued, Golap Jan, the person in question, never became an accused. .....
It is noteworthy that in Kamini Kumar v. Birendra Nath, 37 I. A. 117 : (A. I. R. (17) 1930 P.C. 100), the Privy Council referred to this case, and, while their Lordships made it clear that they were not expressing any opinion on the ponit, they said: 'It may quite well be that a prosecution only commences after a summons is issued: The point then at which the right to any particular form of trial first accrues is, in my judgment, the point when the prosecution commences, and that Is the point when the accused person is first made party to judicial proceedings.'
8. It is not disputed before me that the learned Magistrate Third Class took cognizance and commenced judicial proceedings improperly. When he was in the midst of his inquiry and trial, the case was transferred under Section 523, Criminal P. C., by the learned District Magistrate to a Magistrate Second Class. Section 529 (e) cannot, in my opinion, be invoked to validate the proceedings in the Court of the Magistrate Third Class, as it contemplates completed inquiry and trial.
9. The learned District Magistrate could transfer the case, provided all the preliminary requisites were performed as required by law. He cannot transfer a case of which no cognizance has been taken, as in this case.
10. It may be argued that Section 529 (e), Criminal P. C. can be relied upon in order to show that Shri Gopi Chand, Magistrate Third Class, acting though erroneously but in good faith, took cognizance but it appears from the record that Shri Gopi Chand did not himself continue in error or in good faith but he was succeeded by one Hira Chand, another Magistrate Third Class. Moreover, the saving Section 529 (e), Criminal P. C., contemplates completion of inquiry and trial. Therefore, in my opinion, it cannot be held that the proceedings in the Court of the Magistrate Third Class, Shri Gopi Chand, or his successor, were erroneously bona fide, as contemplated by Clause (e) of Section 529, Criminal P. C. Further, the improper cognizance, having come to the notice of the District Magistrate, he cannot, by transfer to another Magistrate Second Class, incompetent to take cognizance, make the proceedings in the latter Court 'erroneous and bona fide', in order to attract the provisions of Section 529 (e), Criminal P. C. There having been no 'case' before the District Magistrate, the latter had no authority, under the law, to transfer the case to the Magistrate Second Class, nor could he invoke the powers under Section 192, Criminal P. C.
11. I would, therefore, allow the petition and recall the order of the District Magistrate and direct the District Magistrate to take cognizance of the case, according to law, and after examining the complainant on oath, he can himself try the case or transfer it to some other Magistrate but not to Shri Hira Chand, in whose Court the proceedings have so long been continuing.
12. I direct that the records of this case be sent to the District Magistrate in order that he may take cognizance of the case. After taking cognizance, he can, if he so wishes, transfer it to a Magistrate, who is competent to hear the case. But he shall not transfer the case to Shri Hira Chand or Shri Gopi Chand.
13. I have failed to discover any good reasons why Shri Hira Chand or as a matter of fact, Shri Gopi Chand, being Magistrates Third Class, should have forgotten the elementary principle of law and procedure. I think that this is not the first case that has come to my notice. In another criminal Reference No. 9 of 1950, a Magistrate, Third Class, Shri Girja Nand, usurped the powers and took cognizance of a case. In yet another Criminal Reference no. 2 of 1950, a Magistrate Second Class, (Shri Surat Ram Mahanton of Chopal tehsil), acted in a similar manner. It is necessary that a copy of this order be forwarded to the Government, to issue directions to the District Magistrates to watch over the Magistrates, Second and Third Class, in order that they may not act illegally under Section 190 (1), Criminal P. C.