(Prayer: Case (disposed of on 6-7-1948) referred for the orders of the High Court under S. 438 Crl. P.C., by the District Magistrate, Bellary, in his letter C.R.P. No. 15 of 1947 E. 1 dated 25-2-1948.)

The District Magistrate of Bellary has moved this Court under S. 438 Criminal Procedure Code for a decision on the point raised by him regarding the correctness or otherwise of a ruling given by the Stationary Sub-Magistrate. Hospet, in C.C. No. 1179 of 1946 on his file. From the letter of reference of the District Magistrate it is seen that during the course of the examination of a prosecution witness the Vakil for the complainant wanted to get a copy of the report of the police under S. 202 Sub-Cl

. (1) Criminal Procedure Code and file the same as an exhibit in the case. The Stationary Sub Magistrate held, on the objections of the defense Counsel, that the copy of the report is irrelevant. Later on, during the course of the further cross-examination of P.W. 7, the Sub Inspector of Police, a question was put to him as to whether he found the case of the complainant to be true or not in the course of his enquiry under S. 202 Criminal Procedure Code. This question also was disallowed by the trial Court on the objection raised by the defense Counsel. The District Magistrate after discussing the point of law involved in these rulings disagrees with the view taken by the Stationary Sub Magistrate and has submitted the papers to this Court for action under S. 439 Criminal Procedure Code. When it came on for hearing on a previous occasion, as no notice had been sent to the accused I issued notice to them, and even though the same was served, nobody appeared in this Court. The learned Public Prosecutor has placed before me all the relevant and important materials.

At the very outset I may say that the procedure adopted by the District Magistrate is not correct or proper. It is not the function of this Court to give opinions on questions of law raised during the course of proceedings in a lower Court. If a ruling on particular point given by a Magistrate is wrong it is permissible for a complainant or an accused to come up in revision if there are any valid grounds for such procedure; but the more appropriate course is to raise the question at the stage of an appeal and not come up in revision at an interlocutory stage even where the party aggrieved is a private party. Therefore it is incumbent upon subordinate Courts to take care that questions of law arising in pending proceedings are not referred for the opinion of the High Court. The analogous provisions regarding reference to the High Court in the Civil Procedure Code are contained in S. 114 and O.

46. O. 46, R. 1 says that where the decree is not subject to appeal and where any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court. Therefore in the Civil Procedure Code, there is no provision for reference where the decree in the suit or appeal is subject to an appeal.

In a decision reported in In re Palan Goundan (A.I.R. 1914 Mad. 100) [LQ/MadHC/1913/248] , Sadasiva Aiyar, J. has held that a District Magistrate is not competent to report to the High Court under S. 438 a point of law actually arising in a case pending before him. In that case what happened was that there was a revision petition before the District Magistrate and a question of law arose therein, whereupon the District Magistrate referred the matter to the High Court. It was held by the learned Judge that such a procedure was irregular. In this case also on the disallowance of the question and the refusal to admit the document as evidence the aggrieved party filed a revision on which this reference has been made. The decision cited above is authority against the procedure adopted by the District Magistrate. Moreover it seems to me that the legislature has not chosen to give power to a District Magistrate to refer questions of law arising interlocutory during the course of an enquiry or trial. I therefore hold that this reference is incompetent and the records are directed to be returned.