John Beaumont, Kt., C.J.
1. In this case the petitioner is about to be charged under Section 124 A of the Indian Penal Code, the nature of the offence being that he made a speech in which it is alleged that there were seditious passages, and he now applies that the First Glass Magistrate, Alibag, in whose Court the case is pending, may be ordered to commit the case to the Court of Session at Thana for trial.
2. Now, under Schedule II to the Criminal Procedure Code it is provided that the method of trial for offences under Section 124 A may be either the Court of Session, Chief Presidency Magistrate, District Magistrate or Magistrate of the First Class specially empowered by the Local Government in that behalf. In the present case the matter has been inquired into by a Magistrate of the First Class specially empowered by the Local Government at Alibag, and he has expressed the view that if he thinks a prima facie case is made out against the accused he will frame a charge and try the case himself. Now, it seems to me that under the Criminal Procedure Code the Magistrate has a discretion to decide in what way the case shall be tried having regard to the alternatives given by the schedule, No doubt that discretion must be exercised in a judicial manner. The Magistrate must have regard to the importance of the case and to the fact that the maximum penalty under the section is transportation for life, though if he tries the accused himself he cannot give a longer term of imprisonment than two years. He must consider no doubt also whether if he sends the case to the Court of Session there will be a jury or assessors and in that connection he may consider which of the two tribunals, his own Court or the Sessions Court, is the more satisfactory tribunal for deciding the case. No doubt also his discretion is subject to review by the High Court. But if we are asked to review the Magistrate's discretion we can only do so on certain definite grounds, and as far as I can see, no grounds are suggested in this case which would not apply to practically every case under Section 124 A.
3. We were much pressed with the decision of this Court in Emperor v. Krishnaji Prabhakar ILR (1920) 53 Bom. 611, 31 Bom, L.R. 602. In that case the seditious statement had been published in the accused's newspaper which had a very wide circulation, and, therefore, on the facts the case is distinguishable from the present case. Both the learned Judges who decided that case disclaimed the intention of laying down a rule that in every case under Section 124 A the proper tribunal was a Sessions Court, But with all deference to the learned Judges I am bound to say that some of their reasons seem to me to tend to that result. They rely, for instance, on the fact that under Section 124 A the maximum penalty is transportation for life, and they express the view that a jury is the more appropriate tribunal for cases under the section. We have, however, to face the fact that the legislature has not seen fit to provide that in every case in which the trial at Sessions will enable the accused to have a jury he is to be entitled to that privilege. It seems to me that if we interfere with the discretion which the learned Magistrate has exercised in this case we shall in effect be striking out of the schedule of the Code the provision that offences under Section 124 A may be tried by a Magistrate. We have no jurisdiction to do that, and, in my opinion, there is no ground on which we can interfere with the discretion of the Magistrate. The application is, therefore, dismissed.
4. I agree. Mr. Munshi's first argument was that the accused, who is an editor of a newspaper and a publicist of some distinction in Maharashtra, should be given the benefit of a jury trial on that account. I cannot agree with him that the position in life of an accused person should weigh with us in any way.
5. His second argument was that a jury will be better able to understand the case since its decision will depend upon the interpretation of speeches and an estimate of the probable effect which the words used by the accused, if they are proved to have been used by him, must have had on the general public. This argument, too, I cannot accept. It seems to me, from my experience of juries in the mofussil, that a trained First Class Magistrate of experience is far more likely to be able to understand the evidence and to interpret it correctly than a chance collection of gentlemen who have no training in such matters.
6. The real question in these matters is, in which Court will there be the fairer trial, or rather, as the onus is on the applicant, whether it is likely that the trial before the First Class Magistrate, Alibag, will be at all unfair This, I take it, is the real reason for his application. Mr. Munshi very properly has not said anything against the Magistrate, but after all the Magistrate is a Government servant, and in a case in which Government are peculiarly concerned, naturally an accused person may have some apprehension that there will be some bias in favour of the Government in the mind of the Magistrate. This view I can sympathize with, but in my opinion it cannot prevail. We must take the law as it stands and the law is that a case of this nature may be tried by a First Class Magistrate, a Government servant, in spite of the fact that in all such cases Government are directly interested. There is no provision for a jury trial as no doubt there would have been, had the legislature thought that in such cases an accused person should be given the benefit of trial by a jury of his own countrymen. For this reason I agree with his Lordship the Chief Justice that we cannot accede to the request of the applicant.