LAWS(PVC)-1909-7-19

MALIK PRATAP SINGH Vs. KHAN MAHOMED

Decided On July 24, 1909
MALIK PRATAP SINGH Appellant
V/S
KHAN MAHOMED Respondents

JUDGEMENT

(1.) This is a Rule on the Chief Presidency Magistrate of Calcutta and the opposite party to show cause why the order of discharge of Khan Mahomed, passed by the learned Fourth Presidency Magistrate, dated the 27 May last, should not be set aside and a further inquiry ordered.

(2.) On behalf of Khan Mahomed it has been argued that this Court should not interfere under the Charter Act in the circumstances of this case, and that it has no power under the provisions of the Criminal Procedure Code to order further inquiry in a case in which a Presidency Magistrate has discharged an accused person, and reliance has been placed on three rulings of this Court to which we shall refer later.

(3.) We think it must be conceded that we can only interfere, if at all, under Section 439 of the Code. There is here no question of jurisdiction. If the Magistrate has erred, his error is merely one of law. It was held in Tej Ram V/s. Harsukh (1875) I.L.R. 1 All. 101, which was followed in Corporation of Calcutta V/s. Bhupati Roy Chowdhry (1898)I.L.R. 26 Calc. 74, that a High Court cannot interfere, under Section 15 of the Charter Act, with the order of a Court subordinate to it on the ground of an error in law. There must be an error that affects jurisdiction-either want of jurisdiction, or a refusal of jurisdiction, or an illegality in the exercise of jurisdiction. This view is also expressed in Kedar Nath Sanyal V/s. Khetra Nath Sikdar (1907) 6 C.L.J. 705.