EMPEROR Vs. BAIJNATH PRASAD

JUDGEMENT

(1.) IN this reference the District Magistrate recommends a revision of two orders passed by the Sessions Judge on appeal. The reference purports to be made under Section 438, Criminal P.C. The District Magistrate's power to make reference under that section is confined to the proceedings of inferior Magistrates, and the explanation which was added in 1923 after Sub-section 1, Section 435 of the Code, expressly says that every Magistrate in the district, whether exercising original or appellate jurisdiction, is inferior to the Sessions Judge for the purpose of the sub-section. "It would be contrary to every principle" as Macpherson and Banerjee, JJ., observed in Queen-Empress V/s. Jahandi (1895) 23 Cal 249, to allow the District Magistrate to report against an order of the Sessions Court to which he is inferior.

(2.) THE same view was taken in Queen-Empress V/s. Karatndi (1895) 23 Cal 250. We can only assume that the learned District Magistrate was not aware of the limitations of his power as a revisional authority when he made the present reference. He has taken care to fortify himself (as he thinks) with an opinion of the Government Pleader of the district, but it is difficult to understand why the opinion of the Government Pleader should influence judicial work. It is also clear that the learned District Magistrate did not understand the opinion of the learned pleader who has not advised him to refer to this Court in revision orders passed by a superior Court. THE reference is discharged.