1. The question we have to consider is whether the District Magistrate had power to call for the proceedings held by a First Class Magistrate in his district. The answer to it depends upon the determination of the question whether the Court of a Magistrate (First Glass) is inferior to that of a District Magistrate, within the meaning of Section 435 of the Code.
2. The point does not appear to have been decided in this Court, although for the purpose of sanctioning prosecution under Section 468 of the Code of 1872, corresponding, for this purpose with Section 195 of Act X of 1882, the Court of a District Magistrate was held to be superior to that of a First Class Magistrate Imperatrix v. Padmanabh Pal I.L.R. 2 Bom. 384.
3. The High Court of Calcutta has, however, recently held that the Court of a First Class Magistrate is not inferior to that of a District Magistrate so as to give jurisdiction to the latter to call for a proceeding held by the former, and make an order under Section 436 or 437 of the Code-Nobm Kristo v. Russick Lall I.L.R. 10 Cal. 268 Queen Empress X. Nawab Jan Ibid., p. 355. That view does not commend itself to us, for reasons some of which do not appear, from the report of the case quoted, to have been adverted to by the learned Judges who decided them.
4. Section 17 of the Code distinctly provides that all Magistrates of whatever class, shall be subordinate to the District Magistrate and, regard being had to some other provisions of the Code, it appears that the District Magistrate is clothed with superiority, in respect of, not only his executive, but also judicial functions. We, may, by way of illustration, refer to the powers given by the ~ Code to the District Magistrate, by Section 850, of setting aside a conviction recorded by a First Class Magistrate under certain circumstances; of calling for record and proceedings under Section 435; of hearing an appeal, under Section 408, against an order passed fey a First Class Magistrate; of. transferring and withdrawing appeals under Section 407, and of hearing an appeal from orders passed under Section 514, or revising them-section 515. These provisions accord with the provision of Section 17, that a First Class Magistrate's Court is subordinate to that of the District Magistrate. Being subordinate it is necessarily 'inferior,' but it is inferior also as being statutably incompetent to hold or exercise equal powers with the latter Court in many respects. There may be 'inferiority' without subordination, but there cannot be subordination without inferiority, as 'subordinate' moans 'inferior in rank,'
5. If the Court of the First Class Magistrate is not Inferior to that of the District Magistrate on the grounds of its inferior or loss extensive competence, neither, it seems, can it be inferior to the Court of Sessions, to which its subordination is strictly limited by Section 17, and if there is no inferiority then there is no authority for revision; and the result would be that no local Court would have authority or, control over the proceedings of First Class Magistrates, except by way of appeal, in cases where it is allowed, and the party aggrieved chooses to prefer it. We cannot assume that such a result was contemplated by the Legislature,; if it had intended to exclude the Courts of First Class Magistrates from revision by the Court of District Magistrate it would, we think, have said so in express terms. The epithet 'inferior' seems to us to have been used simply in order to avoid the use of 'subordinate' on account of the especial limitations of the latter word, which would prevent the Court of Sessions from looking into certain cases arising beyond the line of 'subordination' to it, which yet might properly be examined for the purpose of an order under Sections 436, 437, or reference under Section 438. It is undesirable that the High Court should, in general, order committals. Its hands ought to be quite free in dealing with a case in its ultimate stage of appeal or revision. The Bombay cases are generally, but by no means exclusively, oases of review and reference of proceedings of Second and Third Glass Magistrates-see Empress v. Bhagcan I.L.R. 7 Bom. 372; Queen-Empress v. Joti Rajnak I.L.R. 8 Bom. 338. The practice of other provinces, though not of Bengal, allows a superiority of the District Magistrate. The District Magistrate's order in the present case under Section 436 cannot be deemed beyond his jurisdiction,' and the commitment made by a First Class Magistrate in pursuance of that order cannot be quashed.