JAGGU AHIR Vs. MURLI SHUKUL

JUDGEMENT

(1.) The question referred to us is whether the High Court has jurisdiction under Section 526 of the Code of Criminal Procedure or under the Letters Patent (especially by Section 22) to transfer from the court of one Magistrate to the court of another Magistrate a proceeding under Section 145 of the Code of Criminal Procedure. There is a conflict of authority on the point. In In re Pandurang Govimd Pujari (1900) I.L.R., 25 Bom., 179 it was held that the High Court had no power under Section 526 of the Code to transfer a proceeding under Section 145 of the Code from one court to another. The reason given is that such a proceeding is not a "criminal case" within the meaning of Section 526, that a criminal case means a case arising out of and dealing with some crime already committed and does not include proceedings taken for the prevention of a crime. The Madras High Court in Arumuga Tegundan (1902) I.L.R., 26 Mad., 188 dissented from the Bombay case. The learned Judges said :--"We have no doubt of our power to transfer this case both under Section 526 of the Code of Criminal Procedure and Clause 29 of the Letters Patent. If a case under Section 145 of the Code of Criminal Procedure is not a "criminal case," it is difficult to conceive what it is. With all respect we are unable to agree with the decision of the Bombay High Court in In re Pandurang Govind Pujari." In Lolit Mohan Moitra v. Surja Kanta Acharjee (1901) I.L.R. 28 Calc. 709 Ghose, J. held as follows: An investigation under Section 145 of the Code of Criminal Procedure is an inquiry within the meaning of Clause (a) of Section 526 of that Code. A Magistrate trying a case under Section 145 is a criminal court within the meaning of the Code. The expression criminal case in Section 526 means a case over which a Criminal Court has jurisdiction.

(2.) It is doubtful whether the High Court has power under Section 526 to transfer cases other than those in which a person is charged with an offence. The High Court may, under Section 15 of the Charter Act, transfer a case under Section 145.

(3.) Taylor, J., held as follows :--"The expressions case and criminal case are not co-extensive. The phrase criminal case is used in a limited sense and does not apply to every case cognizable by a Criminal Court. It is doubtful whether the High Court has power under Section 526 to transfer cases which do not relate to matters which may strictly be described as criminal as relating to a crime or offence under the law. The power, however, exists under Section 29 of the Letters Patent wherein the phrase criminal case appears to be used without the distinction which apparently exists in the Criminal Procedure Code in respect of cases tried by a Criminal Court as opposed to civil cases."