MAHOMED GHOUSE RAHMAN SAHIB Vs. NATHU VALLABHJI

JUDGEMENT

(1.) I agree with my learned brother that this petition should be dismissed. I am clear that Section 185 of the Code of Criminal Procedure does not enable a High Court to make an order transferring a case pending on the file of a Criminal Court, whether within or outside its jurisdiction, to the file of another Criminal Court, whether such other Criminal Court, be within its own jurisdiction or without its jurisdiction. Section 185, in my opinion, has absolutely nothing to do with transfer or with a High Court s power of transfer. The power to transfer vested in the High Court, so far as the Criminal Procedure Code is concerned, is dealt with and was intended by the Legislature to be dealt with solely by Section 526 of the Code of Criminal Procedure. That Section gives full powers to a High Court to transfer cases pending in a Court subordinate thereto" to any other such" Court (that is any other Court subordinate" to it or even to itself). It seems to me [with the greatest, respect to the decisions in Hiran Kumar Chowdhury v. Mangal Sen 20 Ind. Cas. 222 : 17 C.W.N. 761 : 14 Cr. L.J. 398. and Emperor v. Chaichal Singh 2 Ind. Cas. 361 : 5 L.B.B. 17 : 9 Cr. L.J. 581. which I am unable to follow] to be wholly contrary to usually accepted canons of construction to infer from the language of Section 185 (which does not use the word transfer" or any word even remotely suggesting the idea of "transfer") a power in the High Court to transfer cases, especially to transfer a case pending in a Court outside its jurisdiction. As my learned brother points out, what power has a High Court to enforce its order transferring a case instituted and pending outside its jurisdiction? As he, has further pointed out, Section 527 (1) of the Code of Criminal Procedure clearly implies that it is only the Governor-General-in-Council that has the power to transfer a case pending in a Court subordinate to one High Court to be tried by a Court subordinate to another High Court. On this short ground, this revision petition should be dismissed.

(2.) As, however, it was argued that we are at least entitled to decide" under Section 185 of the Code of Criminal Procedure "by which Court the offence shall be inquired into or tried" and that this provision means that we are entitled to express an opinion (even though it might, be a mere pious unenforceable opinion) that the Presidency Magistrate s Court within our jurisdiction should inquire into this case, I shall proceed to express my opinion on the whole scope of that Section (185 of the Code of Criminal Procedure).

(3.) Reliance was placed on behalf of the petitioner on the cases of Queen- Empress v. O Brien 19 : A.W.N. (1896) 191 : 9 Ind. Dec. (N.S.) 72. and Babu Lal v. Ghansham Das 5 A. L.J. 333 : A.W.N. (1908) 115 : 7 Cr. L.J. 994. Those, however, were cases in which the High Court s opinion was expressed against the jurisdiction (and competency to try) of the Court, subordinate to that High Court, which subordinate Court had taken cognizance of a criminal case (and not against the jurisdiction of a Court not subordinate to itself). Of course, every High Court has power to prevent a Court subordinate to itself from grasping at jurisdiction or from trying a case which had better be tried by another Court, whether subordinate to that High Court or not subordinate to it. It has also power to decide, when an accused person is found within its jurisdiction and a criminal case is pending against him in a Court subordinate to its appellate criminal jurisdiction, which of two courses is more advisable, (1) that the offence should be inquired into and tried by that subordinate Court or (2) that the offence should be inquired into and tried by a Court subordinate to another High Court (which subordinate Court is empowered to take cognizance of it under one of the Sections 177 to 184). In other words, I am quite clear that Section 185 was intended only to apply to and provide for the following two sets of circumstances: (1) Where two cases are pending in two Courts within the jurisdiction respectively of two separate High Courts on the same set of facts, the High Court within which the offender is found has the deciding voice whether the Court within its own jurisdiction shall or shall not proceed against the accused (such decision being intended to be based on grounds of convenience, jurisdiction, fairness to both sides, etc.). If it decides in the affirmative, the outside Court cannot proceed further, as the High Court has full powers to prevent a person who is within its jurisdiction from being taken out of that jurisdiction till the case in its subordinate Court is concluded. (2) Where only one case has been instituted in a Court subordinate to the High Court in whose jurisdiction the offender is, that High Court can decide whether the case should be inquired into and tried by its own subordinate Court or should be tried in a Court within the jurisdiction of soma other High Court.