EMPEROR Vs. SAKHAWAT ALI

JUDGEMENT

(1.) Early in November last an application was presented to a learned Judge of this Court which is described as being a criminal revision against the order of M. Mumtaz-ullah Khan, Magistrate of the first class of Basti, dated the 7th of September, 1918, charge under Section 145 of the Code of Criminal Procedure, It is sub-divided into three-heads, The first is: "Because, there being no order showing that the learned Magistrate was satisfied that a dispute likely to cause a breach of the peace exists, and he not having made any order in writing stating the grounds of his being so satisfied, the whole proceeding was without jurisdiction and the order is ultra vires." I need not, at any rate at present, go into the second and third grounds set out in this application. The application is endorsed by an order of this Court which runs as follows;--"I admit this under Section 107 of the Government of India Act. Let notice go to show cause whether proceedings were taken and order made without jurisdiction." In pursuance of this order a notice went to the other party Shukr-ullah and also to the Magistrate whose order was attacked. They were told that the case would be hoard and they were informed that they might show cause accordingly.

(2.) The point then that I have to consider is whether the proceedings taken before or by the Magistrate and the order made by him were or were not without jurisdiction. The reason for this order being passed is no doubt on account of what is stated in Section 435, Clause (3), of the Code of Criminal Procedure. It must be remembered that that clause sets out that proceedings under chapter XII are not proceedings within the meaning of Section 435. I know of no section in the Code of Criminal Procedure other than Section 435, and none other has been pointed out to me, whereby this Court can call for records of Subordinate criminal courts. Section 195 of the Code may indirectly give this power, but the case before me is not one under Section 195 of the Code, and it has been laid down by this Court more than once that proceedings under chapter XII are not proceedings which can be called up by Section 435 of the Code of Criminal Procedure To this matter I shall again refer. But if the case is as stated by me, then this Court has no power under Section 435 to call up any proceedings under chapter XII, The learned Counsel who appears for the applicant seems to have felt this obstacle in his path, and to have in consequence moved the learned Judge of this Court to call up the proceedings under chapter XII by virtue of what he appears to have stated as being an enabling power that this Court has in this direction under Section 107 of the Government of India Act, 1915, I find some difficulty in following the line or course taken by him. Section 107 cited above is either a section consolidating the existing procedure or it is a now section creating some new jurisdiction or conferring some new powers. I will look at it from both sides. The powers vested in this High Court, of Judicature, at the time the Government of India Act of 1915 commenced, are set out in Section 29 of the Letters Patent under date the 17th of March, 29 Victoria. According to that the proceedings in all criminal cases, other than criminal cases which shall be brought before this High Court in the exorcise of its ordinary original criminal jurisdiction, shall be regulated by the Code of Criminal Procedure prescribed by an Act of the Governor General in Council and being Act No. XXV of 1861 or by such further or other laws in relation to Criminal Procedure as may have been or may be made By such authority as aforesaid. The present case does not fall under the latter class of cases, was cases brought before this Court in the exercise of its ordinary original criminal jurisdiction. Act No. XXV of 1861 has been repealed, and has been replaced by Act No. V of 1898. If Section 107 is some new section conferring new powers or extending powers, then it is subject to what is known as the rule of strict construction [See Maxwell on Interpretation of Statutes, 5th Edition, p. 475. See also Mower v. Lloyd (1877) 6 Ch. D., 297 (301)]. The remarks made by Lord Justice James appear to me to have a strong bearing upon the case before me, and upon the power of this Court to entertain motions of this kind. I have a still further difficulty in understanding how Section 107 can, in any way, apply to the present application. Looking to the language of Section 107 I find that this Court has superintendence over all courts subordinate to its appellate jurisdiction and that it may do certain things, namely call for returns, direct transfer of suits and appeals, make and issue general rules regulating the practice and proceedings of inferior courts, prescribe forms in which books, entries etc., are to kept in the offices of the inferior courts, and settle tables of fees.

(3.) The application before me certainly does not fall under returns nor under transfer of suits. Even if it does fall under rules, forms and tables which is open to doubt, such rules, forms and tables must not be inconsistent with the provisions of any Act for the time being in force, let us say Act No. V of 1898 for instance, and must have the previous approval of the Local Government. I know of no rules bearing upon chapter XII which have been issued by this Court and none such have been pointed out to me. I am then forced back upon the conclusion that if any power such as that claimed exists anywhere it exists in Section 29 of the Letters Patent, and, as I have already said, I have not been satisfied that any such power exists under this section.