Authored By : S.C. Ghose, F.B. Taylor

S.C. Ghose, J.

1. This is a Rule calling upon the District Magistrate ofMaldah to show cause why, having regard to the statements made in paragraphs 3 and4 of the affidavit of one Baman Chandra Chowdhry, affirmed on the 23rd May1901, and those contained in para. 12 of the verified petition presented tothis Court, as also the statements made by the petitioner to the Magistratehimself in a petition, dated the 10th May, the case under Section 145 of theCode of Criminal Procedure mentioned in the said petition to this Court and nowpending in the file of the said District Magistrate, should not be transferredto Rajshahye or some other district.

2. The District Magistrate has, through a Deputy Magistrate,submitted an explanation, in which, among other matters, he raises the questionwhether this Court has power under Section 526 of the Code of CriminalProcedure to transfer a case under Section 145 of the Code of CriminalProcedure to some other Magistrate. And he has relied upon the case ofPandurang Govind Pujari . decided by the Bombay High Court.

3. The learned Advocate-General on behalf of the oppositeparty has also raised before us the same question, and he has contended that inthe circumstances of the case it is not expedient to transfer the proceedingsfrom Maldah to some other Magistracy.

4. I propose, in the first instance, to discuss the questionwhether under s, 626 of the Code of Criminal Procedure, the High Court has thepower to make the transfer, and, if it has not such power, whether it can do sounder the Charter Act.

5. It will be observed, on a reference to Section 435 of theCode, that though the High Court may call for and examine the record of anyproceeding before any inferior Criminal Court, in order to satisfy itself as tothe correctness, legality or propriety of any finding, sentence or orderrecorded or passed by such inferior Court, yet proceedings under Chapter XII,which contains among others Section 145, are not proceedings within the meaningof the section; and it may, therefore, be doubted, whether, under Section 439of the Code, this Court is possessed of revisional powers in regard to aproceeding under Section 145. But it has been held in several oases that thisCourt under the powers of general superintendence vested in it by Section 15 ofthe Charter Act, 24 and 25 Vict., Chapter 104, has the power of interferingwith an order under that section, if it be made without jurisdiction, or it isan illegality affecting jurisdiction: (see Laldhari Singh v. Suhdeo NarainSingh I. L. R. (1900) Cal. 892. and Anesh Mollah v. Ejaharwddi mouah I. L. R.(1900) Cal. 446; and the question here arises whether this Court, being possessedof revisional powers, though not under Chapter XXXII of the Code, which dealswith references to, and revision by, the High Court, has not also the power totransfer a proceeding under Section 145 from one Court to another, when theends of justice require it.

6. Section 526 of the Code begins by saying: "Wheneverit is made to appear to the High Court.

(a) that a fair and impartial inquiry or trial cannot be hadin any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty islikely to arise, or

(c) that a view of the place in or near which any offencehas been committed may be required for the satisfactory inquiry into or trialof the same, or

(d) that an order under this section will tend to thegeneral convenience of the parties or witnesses, or

(e) that such an order is expedient for the ends of justiceor is required by any provisions of this Code.

7. And it then says it may order

(i) that any offence be inquired into or tried by any Courtnot empowered under Section 177 to 184 (both inclusive), but in other respectscompetent to inquire into or try such offence;

(ii) that any particular criminal case or appeal, or classof such cases or appeals, be transferred from a Criminal Court subordinate toits authority to any other such Criminal Court of equal or superiorjurisdiction;

(iii) that any particular criminal case or appeal betransferred to and tried before itself; or

(iv) that an accused person be committed for trial to itselfor to a Court of Session.

8. Two important questions here arise: first, whether aninvestigation in a case under Section 145 is not an " inquiry" withinthe meaning of Clause (a); and, second, whether the Court of a Magistrate, whenit deals with a case under Section 145, is not a " Criminal Court "within the meaning of the section. That it is an " inquiry " withinthe meaning of the Code is perfectly clear from Section 4, Clause (k), whichsays: " inquiry includes every inquiry other than a trial conducted underthis Code by a Magistrate or Court "; and so it has been held in the caseof Satish Chandra Panday v. Rajendra Narain Bagchi I. L. R. (1895) Cal. 898.,where the question was raised whether a District Magistrate or a Sub-DivisionalMagistrate is entitled to transfer or withdraw a case under Section 145 fromthe file of a Magistrate subordinate to him; and it was held that such powerdid exist.

9. As to the other question, namely, whether the Court ofthe Magistrate taking cognizance of a case under Section 145 is a "CriminalCourt," it seems to me that it is a Criminal Court within the meaning ofthe Code. It is a Court which is constituted under Section 6 of the Act, andbound to administer the law relating to criminal procedure as prescribed by theCode. If, therefore, a proceeding under Section 145 is an inquiry in a CriminalCourt, as indicated in the first part of Section 526, let us consider whetherit is a criminal case within the meaning of the second part of the section. Nodoubt the first clause in that part of the section refers to an offence,"but the second clause is more general, and it-seems to me that, if theexpression particular criminal case or appeal "or" class of suchcases or appeals " refers only to offences, nothing could be simpler forthe Legislature than to have framed it so that there could be no doubt aboutit. They might have said that the inquiry into or trial of any particularoffence, or the appeal in such case or class of such cases or appeal betransferred, etc., etc., but instead of that they use a different phraseology.Reference was, however, made in the course of the argument to the fact that,inasmuch as the word " criminal " governs the word case as also theword " appeal," both the proceedings must arise out of some offencecommitted, and that the use of the expression "accused person" inClause (iv) bears out that position. No doubt the word "criminal"governs both the case and the appeal; but I am not prepared to say that itfollows from this that the "criminal case" referred to must havereference to some offence committed, nor do I think that the expression"accused person" supports that contention. These words, withreference to some other sections of the Code (Sections 340, 342 and 437) havereceived a wider interpretation, namely, a person over whom a Magistrate isexercising jurisdiction: see Jhoja Singh v. Queen-Empress I. L. R. (1892) 16Bom. 661. Queen-Empress v. Mona Puna I. L. R. (1896) Cal. 498. andQueen-Empress v. Mutasaddi Lal : I. L. R. (1898) All. 107.

10. Upon reference to Act IV of 1840, Sections 2 and 4, itwill be found that, in the event of a dispute likely to induce a breach of thepeace concerning any property, the Magistrate was authorized to inquire whichparty was in possession when the dispute arose, and was empowered to put suchparty into possession and to maintain him in possession until the right of theparties were determined by a competent Court; and further that where a personhad been forcibly dispossessed of any property, the Magistrate was authorizedto restore that party into possession and maintain him in such possession untilthe right to possession was determined by a competent Court. This Act, however,was repealed by Act XVII of 1862, which was in turn repealed by Act X of 1872.In the meantime by Act XIV of 1859, Section 15, it was provided that a suitwould lie in the Civil Court for recovery of possession of any Immovableproperty if a person be dispossessed otherwise than by due course of law, ifsuch suit were brought within six months from the dispossession; and we alsofind that by Section 318 of the Code of Criminal Procedure of 1861 theMagistrate was empowered to determine, in the case of a dispute likely toinduce a breach of the peace concerning any land, water or fishery, which partywas in possession of the subject matter of dispute. Ever since then theMagistrate has continued to exercise jurisdiction in a case like this wherethere is a likelihood of a breach of the peace; and the Civil Court has alsocontinued to exercise the jurisdiction which was vested in it by Section 15, Act XIV of 1859 (substituted by Section 9 of the Specific Belief Act). Thejurisdiction, which under Act IV of 1840 was vested in the Magistrate, seemsnow to be divided between the Criminal Court and the Civil Court, and while theCivil Court under Section 9 of the Specific Belief Act is authorised to restorea party into possession, if he has within the last six months been dispossessedwithout his consent otherwise than by due course of law, the Criminal Court, inthe event of an imminent danger of a breach of the peace resulting from adispute between the parties, can only maintain a person in possession, if he isfound to be in such possession upon the date of the institution of a proceedingunder Section 145, or, if he was in possession within two months antecedent tothat date. But the foundation of a proceeding under Section 145 of the Code, asalready indicated, is the existence of a dispute likely to cause a breach ofthe peace; and when such a dispute is not shown to exist, the Magistrate has nojurisdiction to take action. In this view of the matter, the proceeding underSection 145 partakes of the character of a criminal case; and, though thatsection lays down only a preventive measure, and it occurs in Chapter XII,which is contained in Part IV headed " Prevention of Offences," yet Iam not prepared to hold, as it has been contended before us, that it is not a" criminal case " within the meaning of the Code. It will be observedthat there are other sections of the Code which deal with preventive measures,and which are contained in the same Part IV, e.g., Sections 107 and 110. Areproceedings under these sections criminal cases or what I think these may wellbe described as criminal cases; and this Court, I am informed, has exercisedjurisdiction in transferring such cases under Section 526 of the Code. Forexample, see the unreported case of Ahmed Hossain Unreported, dated 12th Jane1899., decided on the 12th of June 1899; and I find that in that case thequestion was raised by the Magistrate concerned upon the authority of the caseof Amar Singh in re I. L. R. (1898) All. 9, whether the Court had authority totransfer such cases to some other district and, notwithstanding the objectionraised, an order was made for the transfer. If a proceeding under Section 107or Section 110 may be regarded as a criminal case which may be transferred, Ido not see how a proceeding under Section 145 can be regarded in any otherlight. It is noteworthy that Section 192 of the Code under which a DistrictMagistrate or a Sub-Divisional Magistrate may make an order of transfer in anycase occurs in Part VI headed " Proceedings in Prosecutions," and ina chapter which deals mostly with the procedure in inquiry into offences. Andit seems to me that it would be rather anomalous if a District Magistrate,while not authorised to interfere with an order made under Section 145, has thepower to transfer a case instituted under that section from the file of oneSubordinate Magistrate to another, the High Court, though possessed ofrevisional powers and entitled to set aside such an order, is not authorised tomake an order of transfer. In this connection I may refer to a note by SirHenry Prinsep in his recent edition to the Code of Criminal Procedure underSection 526, p. 516, which runs as follows:

The High Court may also order that a criminal case or appealbe transferred to and tried before itself, or that the accused be committed toitself or to a Court of Session. It should be noted that by the use of theexpression "a criminal case" the orders of the High Court is notrestricted to an inquiry or trial of an offence. But an order for the transferof a criminal case or appeal can be made only when such case or appeal isbefore a Court ordinarily competent to try or hear it.

11. Upon these considerations I should be inclined to thinkthat the expression " criminal case " occurring in Section 526 maywell be understood as simply distinguished from a civil case, or in other wordsthat a " criminal case" is one over which a Criminal Court exercisesjurisdiction.

12. But there is one point which, I am bound to say, doesraise a doubt whether the Legislature meant to give the High Court power tomake a transfer in a case other than strictly criminal under Section 526.Sections 192 and 528 in speaking about the withdrawal or transfer of a case bya District Magistrate use the words "any case," whereas Section 526says "criminal case." And while Section 44 of the old Code of 1872(corresponding to Section 192 of the present Code) provided for the transfer of" criminal cases " by the Amending Act XI of 1874, the word "criminal " was struck out and has been omitted from all the subsequentenactments, while Section 64 (corresponding to Section 526) of the Code of 1872used the expression " criminal case," and this expression hasthroughout been retained. These two circumstances create a doubt whether theLegislature meant to confer on the High Court the power of making a transfer incases other than those in which a person is charged with an offence, and, thatbeing so, I proceed to consider whether this Court has not the power to makethe order of transfer under the Charter Act. Under Section 15 of thetheHigh Court has the general power of superintendence over all Courts which maybe subject to its appellate jurisdiction, including the power to direct thetransfer of any suit or appeal; and it has been held by this Court in severalcases that the High Court has the power to set aside an order under Section145, if such an order is made without jurisdiction, or if there is anillegality in the order affecting jurisdiction.

13. Under that section this Court has taken powers to revisethe proceedings of Presidency Magistrates, such powers being doubted to existunder the Code of Criminal Procedure: see Opoorba Kumar Sett v. SreemuttyProbod Kumary : 1 C.W.N. 49 and Charoobala Dabee v. BarendraNath Mozumdar I. L. R. (1899) Cal. 126 and I do not understand why, if thisCourt is empowered under its general powers of superintendence under theCharter Act to interfere with the proceedings held by a Magistrate underSection 145, it has not also the power to transfer such proceeding from thefile of one Magistrate to that of another. In this connection I desire to referto Section 178 of the Code of Criminal Procedure, which runs as follows:--

Notwithstanding anything contained in Section 177, the LocalGovernment may direct that any case or class of cases committed for trial inany district may be tried in any Sessions division.

14. Provided that such direction is not repugnant to anydirection previously issued by the High Court under Section 15 of the IndianHigh Courts Act, 1861, or under this Code, Section 526.

15. The proviso, to my mind, clearly indicates that the HighCourt has the power to make an order of transfer either under Section 526 ofthe Code or under Section 15 of the Charter Act. If the High Court may underSection 15 of the Charter Act direct the transfer of any case or class of casescommitted for trial in any district for trial to any Sessions division, I donot understand why the same power may not be exercised in respect of a caseunder Section 145 of the Code, which a Magistrate has taken cognizance of. Ihold that this Court has the power to make an order of transfer under theCharter Act, and I may here mention that this Court has, on certain occasions,entertained applications for the transfer of oases under Section 145, though Icannot find any case where the order was actually made, the applications beingrejected on the merits.

16. I now come to deal with the merits of the applicationthat has been presented to us. this Court has on several occasions observedthat next to the importance of deciding a case fairly and impartially is theimportance of conducting oneself in such a manner as to inspire in the minds ofthe parties a confidence that nothing but absolute justice would be done tothem, and I need hardly say that, if by reason of the words or conduct of aMagistrate or Judge, before whom a case is pending, any party reasonablyapprehends that there is a bias against him in the mind of the officerconcerned, it would be expedient for the ends of justice to transfer the casefrom his file to that of some other officer competent to try it, though theremay not be any actual bias: see Dupeyron v. Driver I. L. R. (1896) Cal. 495 andThe Legal Bemembrancer v. Byairdb Ghandra Chuokerbutty I. L. R. (1897) Cal.727. In the present instance the affidavit presented to this Court, and apetition presented to the Magistrate himself, before whom the case is pending,attribute to him certain words as having been uttered by him in the course ofthe investigation to the agent of the petitioner, which, if uncontradicted,might reasonably create an apprehension in his mind that the Magistrate isbiased against him. Neither the explanation submitted by the Magistrate nor thecounter-affidavit filed by the opposite party distinctly contradicts thestatements made on behalf of the petitioner. We can have no doubt in our ownminds that, notwithstanding the words which have been attributed to theMagistrate, he has no real bias against the petitioner; but still, so far asthe petitioner is concerned such words are calculated to create in his mind areasonable apprehension that justice may not be done to him. In this view ofthe matter, and without casting upon the Magistrate the slightest reflection,we think it expedient for the ends of justice to transfer the case from hisfile to that of the District Magistrate of Rajshahye.

17. We gather from the affidavits that have been presentedon either side that most of the witnesses to be examined in this case arewitnesses that would come from or near the property, the subject matter ofdispute, and that the means of communication between that part of the districtof Maldah and the town are nearly the same as between it and Rajshahye. Thatbeing so, I do not think that it would cause any real hardship to any of theparties concerned or to their witnesses if they have to go to Rajshahye. Itwill be for the District Magistrate of Rajshahye to determine whether he shouldtake up the case himself or transfer it to the file of some other Magistrate inhis district. If there be any subdivision in that district which iscomparatively closer to the property, which is the subject matter of dispute,than the bead-quarters of the district, the District Magistrate will transferit for inquiry to the officer in charge of that subdivision.

18. We accordingly make the rule absolute.

F.B. Taylor, J.

19. Looking at the history of the present Code of CriminalProcedure, it is clear that in 1874 by Act XI of that year a distinction wasmade by the Legislature between "cases" and" criminalcases." In certain sections, but not in all, the wording was altered fromthe latter to the former, the word "criminal" being in thoseinstances omitted.

20. Having regard to this fact and to the further fact thatthe distinction has been continued and extended (see Sections 178, 192, 528,556, where the wording is "case," and Sections 526, 527 where thewording is "criminal case," I am of opinion that the two phrases arenot in the Code of Criminal Procedure co-extensive, and that the phrases arenot used indiscriminately or inter-changeably. And further it appears to methat the phrase "criminal case" is intended to be used in a limitedsense, and not to apply to every case cognizable by a Criminal Court. For thisreason, and also in consideration of the provisions of Section 435 (3) of theCode of Criminal Procedure, I would doubt the existence of a power underSection 526 of the Code of Criminal Procedure to transfer cases which do notrelate to matters, which may strictly be described as " criminal," asrelating to a crime or offence under the law.

21. But the power it appears to me exists under Section 29of the Letters Patent. For in the Letters Patent "criminal case"appears to be used without the distinction which apparently exists in the Codeof Criminal Procedure in respect of cases tried by a Criminal Court as opposedto civil cases. Under the circumstances of the present case, which have beenset out fully in the judgment of my learned brother, I am of opinion that weought to exercise the power we undoubtedly possess in the interests of justice,and I concur in the proposed order.

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Lolit Mohan Moitravs. Surja Kanta Acharjee and Ors.(09.07.1901 - CALHC)