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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1686 of 2025 Ashish Kumar Jena ..... Appellant 1) Dhirendra Kumar Mohaptra 2) Rajakishor Barik -versus- ..... Represented By Adv. - Mukesh Panda Respondents Represented By Adv. - M/s. Kashinath Pattnaik M.khan T.ram L.mallick S.tarai A.sahoo M/s. Amrut Baral S.k.mohanty CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 04.08.2025 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as
Legal Reasoning
the learned counsel for Opposite Party Nos. 1 & 2. Perused the Application as well as the documents annexed thereto. 3. By filing the present Application under section 528 of BNSS, 2023, the Petitioner seeks to invoke the inherent power of this Court to quash the order dated 21.01.2025 under Annexure-1 passed in MIsc.Case No.08 of 2025 by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Cuttack thereby withdrawing the case record of I.C.C.Case No.17 of 2024 from the Court of the Page 1 of 6. Order No. 02. learned J.M.F.C.-IV (Cog. Taking), Cuttack and the same has been transferred to the Court of the learned J.M.F.C. (City), Cuttack) for disposal in accordance with law. 4. Learned counsel for the Petitioner at the outset contended that while I.C.C.Case No.17 of 2024 pending before the learned J.M.F.C.-IV (Cog.Taking), Cuttack, application was filed purportedly under section 309 Cr.P.C. At the instance of Opposite Party No.1 and the same was registered as Misc.Case No.08 of 2025. A copy of the application has also been filed along with the present application under section 528 BNSS, 2023 as Annexure-6. 5. On perusal of the said application it appears that the Opposite Party Mo.1 has filed the said application with a prayer to transfer ICC Case No.17 of 2024 from the court of the learned JMFC(IV), Cuttack to the court of the learned JMFC(City), Cuttack under section 309 Cr.P.C. While considering the aforesaid application bearing Misc.Case No.08 of 2025, learned Chief Judicial Magistrate, Cuttack passed the impugned order dated 21.02.2025 under Annexure-1. 6. Learned counsel for the Petitioner referring to the entire order sheet in Misc.Case No.08 of 2025, contended that the order sheet reveals that the said misc.case was initially registered on 10.01.2025. The order dated 15.01.2025 reveals that the same was posted for office note. On 21.01.2025 the same was heard and finally the aforesaid misc.case was disposed of with a direction to withdraw the case record of I.C.C. Case No.17 of 2024 from Page 2 of 6. the court of the learned JMFC-IV (Cog.Taking), Cuttack to the court of the learned J.M.F.C.(City), Cuttack for disposal in accordance with law. 7. Learned counsel for the Petitioner in course of his argument emphasized that no notice whatsoever was given to the present Petitioner in the above noted Misc.Case No.08 of 2025. Therefore, it is alleged that the order dated 21.01.2025 is an ex-parte order. He further contended that the learned C.J.M. could not have exercised power under section 309 Cr.P.C. in the given scenario. So far Section 309 of Cr.P.C. is concerned, it appears that the same confers power on the court to postpone or adjourn proceedings. On such ground, learned counsel for the Petitioner submitted that the order dated 21.01.2025 is absolutely illegal and arbitrary while exercising power by the learned C.J.M. in transferring the case to another court. Accordingly, it was prayed that the order dated 21.01.2025 be quashed. 8. Learned counsel for the Opposite Party No.1 on the other hand contended that although the present application has been filed challenging the order dated 21.01.2025 whereby a judicial order has been passed by the learned C.J.M., Cuttack transferring I.C.C.Case No.17 of 2024 from the court of the learned J.M.F.C.-IV, Cuttack to J.M.F.C.(City), Cuttack. He further contended that in the meantime the two case records have been transferred to the court of Miss.Nista, J.M.F.C., Cuttack. In such view of the matter, learned counsel for Opposite Party No.1 Page 3 of 6. contended that the case records have been transferred on administrative ground from the court of Judicial Magistrates First Class. Since the transfer order has been passed on the administrative side, there is no scope to challenge the order dated 21.01.2025. As such the learned counsel for Opposite Party No.1 submitted that the present application has become infructuous. 9. Learned counsel appearing for Opposite Party No.1 supported the contention of the Petitioner and objected to the order dated 21.01.2025. 10. Having heard learned counsels for the respective parties, this Court observes that the Petitioner being aggrieved by the order dated 21.01.2025 has approached this Court by filing the present Application under section 528 BNSS, 2023. It is not disputed that the aforesaid order was passed on an application filed by the Opposite Party No.1 purported to be one under section 309 Cr.P.C. with a prayer for transfer of the case from one court to another court. It is needless to observe here that the whole application was misconceived. As such there is no provision for transfer of case from one court to another under section 309 Cr.P.C.. With regard to the jurisdiction of the C.J.M. regarding transfer of case pending before various courts, the provisions under section 410 Cr.P.C. is applicable. For better appreciation Section 410 Cr.P.C. is quoted hereunder: “410. Withdrawal of cases by Judicial Magistrates-(1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case Page 4 of 6. which he has made over to, any Magistrate subordinate to him and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. (2) Any Judicial Magistrate may recall any case made over by him under Sub-Section(2) of section 192 to any other Magistrate an may inquire into or try such case himself.” 11. On a reading of the aforesaid section, it appears that the C.J.M. has been vested with power to withdraw any case from any magistrate subordinate to him and may inquire into or try such case. In the aforesaid context, this Court observes that Section 410 confers an administrative power on the C.J.M. to transfer record from one magistrate to another keeping in view the administrative exigencies of the case load of each court. Moreover, to exercise power under section 410 Cr.P.C. there is no necessity to file any application and such power under section 410 Cr.P.C. can be exercised by the C.J.M. in the administrative side keeping in view the administrative necessity only. There is no scope for filing any application by any party for transfer of the record. 12. The aforesaid view of the Court gets support from the law decided in the case of Manjulata Behera v. Ramesh Chandra Behera & two others reported in (2001) 20 OCR 188. Moreover, on a critical analysis of the entire order sheet of Misc.Case No.08 of 2025, this Court observes that no notice was ever issued to the Petitioner by the learned C.J.M. before disposing of such application. In the event the matter was required to be taken up in the judicial side then Page 5 of 6. the Court is duty bound to issue notice to the parties, who are likely to be affected in the event such application is disposed of by the concerned court. Therefore, the order dated 21.01.2025 is also not sustainable on the ground that the same has been passed ex parte even without issuing notice to the present Petitioner. 13. In view of the aforesaid analysis of factual and legal position this Court is of the view that the order dated 21.01.2025 is not sustainable in law. Accordingly, the same is hereby quashed. Since the record has been transferred by the learned C.J.M. in exercise of his administrative power, this Court is of the view that in view of provisions under section 410 Cr.P.C., the learned C.J.M. has committed no illegality and as such this Court is not inclined to interfere with such exercise of administrative power. 14. With the aforesaid observation, the CRLMC is
Decision
disposed of. RKS ( A.K. Mohapatra) Judge Page 6 of 6. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Aug-2025 14:56:16