Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. The petitioners in this case have been ordered by Mr.Lloyd, Deputy Magistrate of Purneah, who is a Magistrate exercisingsecond-class powers, to pay the sum of Rs. 44-4 as compensation to a certainperson, named Abdul Wahab, for the illegal seizure of his cattle. This orderhas been passed under Section 22 of Act I of 1871. The petitioners haveobtained a rule to show cause why this order should not be set aside, on the groundthat the Deputy Magistrate was vested with only second-class powers, and wasconsequently not competent to make the order passed by him.

2. Section 20 of Act I of 1871, as amended by Act I of 1891,authorizes a person, whose cattle have been seized under the Act, to make acomplaint within ten days to the Magistrate of the District, or to anyMagistrate authorized to receive and try charges without reference by theMagistrate of the District; and Section 22 provides that, if the seizure ordetention be adjudged illegal, the Magistrate shall award to the complainantreasonable compensation not exceeding Rs. 100 to be paid by the person who madethe seizure or detained the cattle.

3. Now, the words "the Magistrate" in this sectionwould seem to refer to the Magistrate previously mentioned in Section 20, i.e.,either the Magistrate of the District or any Magistrate authorized to receiveand try charges without reference by the Magistrate of the District. It is notstated that Mr. Lloyd was either the District Magistrate or a Magistrateauthorized to receive and try charges without reference by the Magistrate ofthe District, but it has been said that the complaint in this case was made inthe first instance to the Magistrate of the District who referred it to Mr.Lloyd under the provisions of Section 192, Clause 1, of the Criminal ProcedureCode. But we think that Section 192, Clause 1, can only authorize a DistrictMagistrate to transfer a case of which he has taken cognizance, to a Magistratesubordinate to him who is competent to try or dispose of it. Under this sectiona District Magistrate can transfer for trial to a Subordinate Magistrate onlycases which are within the powers of that Magistrate under Section 28 of theCode, or under some special or local law. He cannot authorize a Magistrate totry a case which is beyond that Magistrates powers, or which he is notauthorized by some provision of some law to try. Thus, under Act I of 1871 theMagistrate can, under Section 192 of the Criminal Procedure Code, transfer toany Subordinate Magistrate any case coming under Chapter VI of the Act, as suchcases are all apparently triable by any Magistrate (the words employed being aMagistrate, not the Magistrate); but we do not think he can, under that section,transfer to any Magistrate cases under Section 20 of the Act, which wouldappear to us to be triable only by the two classes of Magistrate specified inthat section [vide In the matter of Ketabdi Mundul 2 C.L.R. 507). The order ofMr. Lloyd in this case would, therefore, seem to have been passed withoutjurisdiction.

4. We have considered whether the illegal order passed bythe Magistrate in this case can be held to be cured by anything contained inthe Code of Criminal Procedure. The only sections which have any bearing on thequestion are Sections 529 and 537, Clause (e). Section 529 declares that, if aMagistrate, not empowered by law in that behalf, takes cognizance of an offenceunder Section 191, Clause (a) or Clause (b), his proceedings shall not on thisaccount be set aside. But the Magistrate has not done this in this case. Thepetitioners have not been charged with any "offence," as defined inSection 4, Clause (p) of the Criminal Procedure Code. The illegal seizure ofcattle does not amount to an "offence" [see Kottalanada v. MuthayaI.L.R. 9 Mad. 374.]. Section 537 also cannot apply, for it deals withirregularities committed by "Courts of competent jurisdiction." Inthis case it was not an irregularity, but an illegality which the Magistratecommitted, and the Magistrate who passed the order under Section 22 of Act I of1871 was not a Court of competent jurisdiction. We are therefore constrained tomake this rule absolute, which we accordingly do, setting aside the order ofthe Magistrate, directing the petitioners to pay Rs. 44-4 compensation.

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Raghu Singh and Ors. vs. Abdul Wahab (11.02.1896 - CALHC)