Page No.# 1/8 GAHC010166752025 2025:GAU-AS:13874 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./945/2025 ABHILASHA LAHKAR D/O LATE KAMLESWAR LAHKAR PERMANENT R/O HOUSE NO.16, NAVADAYA PATH, HENGRABARI P.S. DISPUR DIST. KAMRUP (M), ASSAM PRESENTLY RESIDING AT MITRY NAGAR 2NO. DULIAJAN, P.S. DULIAJAN, DIST. DIBRUGARH. VERSUS THE STATE OF ASSAM AND ANR TO BE REP.BY THE PP, ASSAM 2:JAYDEEP NANDI S/O LT. JAYANTA NANDI R/O STATION ROAD KARIMGANJ P.S. AND DIST. KARIMGANJ ASSAM PIN-788710 Advocate for the Petitioner : MR. A SARMA, U U KHAN,MR. A AHMED,MR. K KALITA Advocate for the Respondent : PP, ASSAM, MS B DEVI(R-2),MR. S P CHOUDHURY (R-2),MR. N M DAS (R-2),MR. J HATIMURIA (R-2),MR. M KALITA (R-2) Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 16.10.2025 1. Heard Mr. A Ahmed, learned counsel for the petitioner. Also heard Mr. K.K Das, learned Additional Public Prosecutor for for respondent No. 1 and Mr. S.P Choudhury, learned counsel appearing for respondent No. 2. 2. By this application filed under Section 528 of the BNSS, 2023 R/W Article 227 of the Constitution of India, the petitioner has challenged the order dated 23.04.2025 passed by the Ld. Judicial Magistrate First Class, Dibrugarh by which the Ld. Court had withdrawn the Case Record from the said Court and had put up the Case Record before the Ld. Chief Judicial Magistrate, Dibrugarh. The petitioner had also challenged the consequential order dated 24.04.2025 by which the Ld. Chief Judicial Magistrate, Dibrugarh had withdrawn the case to his file and transferred the same to the court of Ld. Additional Chief Judicial Magistrate, Dibrugarh for disposal. 3. Mr. A Ahmed, learned counsel for the petitioner submits that the order dated 23.04.2025 is illegal on the following grounds : (i) The order was passed in his absence. (ii) The order was passed against the Law prescribed under Section 450 of the BNSS, 2023. 4. The counsel, by placing the provisions of Section 466/447/448 of the BNSS, 2023, has placed that the said Hon’ble Courts were given Page No.# 3/8 the power to transfer cases and appeals, but in respect of Section 450 of the BNSS, 2023 he submits that the transfer power is not contemplated under the said Section. It is provided under Section 450 of the BNSS, 2023 that any Chief Judicial Magistrate may withdraw any case from or recall any case which he has made over to any Ld. Magistrate subordinate to him and may enquire into or try such case himself or refer to enquiry or trial to any other such Magistrate competent to enquire or try the same. He has also placed sub-section 2 of Section 450 of the BNSS, 2023 which provides that any Judicial Magistrate may recall any case made over by him under sub-section 2 of Section 212 to any other Magistrate or may enquire into or try such case himself. He, as such, submits that the authorities were given the power to recall any case made over by him to any other Magistrate and may enquire into or try such case himself or refer it to another Magistrate who is competent to try it. He, as such, states that there is no power for transfer of the case by any Judicial Magistrate to any other Magistrate under the said Section. However, he submits that in the instant case the Ld. Judicial Magistrate First Class, Dibrugarh had withdrawn the case from her Court and had transferred the said case to the Ld. Chief Judicial Magistrate, Dibrugarh which is not permissible under the said Section of Law. He also submits that the subsequent order passed by the Ld. Chief Judicial Magistrate, Dibrugarh on 24.04.2025 by which the case record was withdrawn to his file and was transferred to Ld. Additional Chief Judicial Magistrate, Dibrugarh which was also bad in law. He also submits that the reasons for such an exercise Page No.# 4/8 was also not recorded in the said orders in terms of Section 452 of the BNSS, 2023 which provides that a Sessions Judge or the Magistrate making an order under Section 450 of the BNSS, 2023 shall record his reasons for making it. 5. To support his arguments, Mr. A Ahmed, has relied on the judgment passed by the Hon’ble Delhi High Court in Sudesh Chhikara v. State of Delhi by which the Hon’ble Delhi High Court had observed that when power is not given to a particular authority by the legislature, the same cannot be exercised. 6. Mr. S.P Choudhury, learned counsel appearing for respondent No. 2, however, submits that there is no illegality in the said order, in as much as reasons were recorded to the effect that the informant of the case i.e. the petitioner had engaged a private counsel to help the prosecution and despite the same, the prosecution had repeatedly taken adjournment in the case which had affected his cause and as such, he had made an application before the Ld. Chief Judicial Magistrate, Dibrugarh stating, inter alia, that the case is pending in the Court of Ld. Judicial Magistrate First Class, Dibrugarh for hearing. However, the prosecution had taken repeated adjournments which had caused prejudice to the accused as his promotion was stopped by the department for the instant case. He had also prayed in the said application that the Ld. Chief Judicial Magistrate, Dibrugarh may call for the record of the above case to his Court and to transfer the said case to some other Court, as per law. Page No.# 5/8 7. In view of the said application, according to the learned counsel, the case was put up by the Ld. Chief Judicial Magistrate, Dibrugarh before the concerned Court i.e. Ld. Judicial Magistrate First Class, Dibrugarh and the Ld. Judicial Magistrate First Class, Dibrugarh, vide order dated 23.04.2025, had put up the case before the Ld. Chief Judicial Magistrate, Dibrugarh and thereafter, the Ld. Chief Judicial Magistrate, Dibrugarh had transferred the case to the Ld. Additional Chief Judicial Magistrate, Dibrugarh for disposal vide order dated 24.04.2025. As such, the learned counsel submits that there is no illegality in the order passed by the Ld. Chief Judicial Magistrate, Dibrugarh as well as the Ld. Judicial Magistrate First Class, Dibrugarh. He also submits that since the complainant is a witness in the said case, he would not be prejudiced by such putting up of the case before the Ld. Additional Chief Judicial Magistrate, Dibrugarh. In the backdrop of the said submissions, this Court would like to examine the law as enumerated below. 8. It is noticed that a Ld. Judicial Magistrate First Class is empowered to recall any case made over by him under sub-section 2 of Section 212 to any other Magistrate and may enquire into or try such cases and under Section 212 of the BNSS, 2023 it is provided that any Chief Judicial Magistrate, may after taking cognizance of an offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him and under sub-section 2 of Section 212, it is further provided that any Magistrate of the First Class, empowered by the Ld. Chief Judicial Magistrate, may after taking cognizance of an offence make over the case for enquiry or trial to Page No.# 6/8 such other competent Magistrate as the Ld. Chief Judicial Magistrate by general or special order, specify and thereupon, such Magistrate may hold the enquiry or trial. 9. In the instant case, it is seen that pursuant to the application made by the accused person for calling of the record of the case by the Ld. Chief Judicial Magistrate, Dibrugarh and to transfer it to any other Court as the Ld. Court deem it fit and proper, the Ld. Chief Judicial Magistrate, Dibrugarh has put up a note stating, inter alia, to put up the case before the concerned Court i.e. before the Ld. Judicial Magistrate First Class, Dibrugarh. 10. It is provided under sub-section 2 of Section 212 that the Ld. Judicial Magistrate First Class if empowered by the Ld. Chief Judicial Magistrate can make over the case for enquiry to some other competent Magistrate as the Chief Judicial Magistrate may by order specify and that thereupon, such Magistrate may hold the enquiry. Since, in the instant case it is noticed that the Ld. Chief Judicial Magistrate, Dibrugarh had not rejected the petition and had stated to put up before the concerned Court, it seems that the Ld. Chief Judicial Magistrate, Dibrugarh had empowered the concerned Court to exercise its power and in view of the same, the concerned Court, vide order dated 23.04.2025, in its own wisdom had put up the said case before the Ld. Chief Judicial Magistrate, Dibrugarh. It is also not a case that no reasons have been written in the said order, in as much as, although, in the body of the order it is written that the accused had submitted that the informant had engaged a private counsel to help the prosecution case but despite the same, Page No.# 7/8 the prosecution had taken many adjournments in the case, however, by allowing the prayer it is noticed that the said contention and the prayer was accepted by the Court of Ld. Judicial Magistrate First Class, Dibrugarh. Further, under Section 212(I) of the BNSS, 2023, it is provided that the Ld. Chief Judicial Magistrate, Dibrugarh may make over the case for enquiry or trial to any competent Magistrate subordinate to him and by taking recourse to the said power and under Section 450 of the BNSS, 2023 the Ld. Chief Judicial Magistrate is empowered to withdraw any case or to recall any case and enquire it himself or to refer it to some other Magistrate competent to try the same and in pursuance to the said provisions the Ld. Chief Judicial Magistrate, Dibrugarh, vide order dated 24.04.2025, had transferred the case to the Ld. Additional Chief Judicial Magistrate, Dibrugarh for disposal. As such, this Court does not hold that there is any illegality in the orders dated 23.04.2025 or 24.04.2025. Further, the petitioner is the informant in the instant case and as per law, the informant has a right to assist the prosecution or to file any written argument after taking permission of the Court and that he has no independent role in defending the informant. The prosecution was already there to contest the case who was taking time in the instant case repeatedly. As such, it is held that the petitioner would not be prejudiced by any manner whatsoever, if the case is heard by of Ld. Judicial Magistrate First Class, Dibrugarh or Ld. Additional Chief Judicial Magistrate, Dibrugarh. 11. As such, the petition is dismissed and disposed of. Page No.# 8/8 12. Any other stay order stands vacated. JUDGE Comparing Assistant