R.A. Jahagirdar, J.
1. This is a petition under Article 226 of the Constitution in which it has been prayed that section 395(2) of the Code of Criminal Procedure, 1973, be declared as unconstitutional, null and void, because the said provision is ultra vires of Articles 14 and 21 of the Constitution of India. The petitioner has been described as the Chief Judicial Magistrate of Aurangabad and as we have understood the arguments of the petitioner put forth through his Counsel Mr. S.B. Talekar, the aforesaid provision, namely, section 395 of Code of Criminal Procedure makes a hostile discrimination between the Judicial Magistrates on the one hand and the Metropolitan Magistrates on the other. It is the case of the petitioner that under section 395(1) of the Code, every Magistrate or, for that matter, every Court which is subordinate to the High Court can make a reference if that Court is satisfied that any case pending before it involves a question as to the validity of any law of the land the determination of which is necessary for the disposal of the case and is of the opinion that such Act or such law has not been declared invalid by the High Court or the Supreme Court. Sub-section (1) of section 395, therefore, does not make any distinction between the Metropolitan Magistrate and the Judicial Magistrates.
2. However, the petitioner proceeds to mention that sub-section (2) of section 395 empowers only the Court of Session or a Metropolitan Magistrate, if it or he thinks fit in any case pending before it or him which does not involve the question as to the validity of any law as mentioned in sub-section (1) of section 395, to refer for the decision of other High Court any question of law arising in the hearing of any such case. Sub-section (2) of section 395 does not give power to a Judicial Magistrate or a Chief Judicial Magistrate, such as the petitioner. This, according to the petitioner is evaluative or Articles 14 and 21 of the Constitution.
3. Naturally the question arose as to what is the locus of the petitioner to approach this Court with the aforesaid prayers. The petitioner has in paragraph 2 of his petition explained what according to his understanding is the correct meaning of section 251 of the Code. Thereafter in paragraph 3 of petition the petitioner has stated that since there is no decision on the point covering this aspect of the matter, namely, the correct interpretation of section 251 of the Code, he was actuated by bona fide and honest intention in referring a matter to the Hon'ble High Court. The petitioner further states that he had no intention either to lower down the prestige of any Court in estimation of the public or to interfere with the administration of justice by making a reference to the Hon'ble High Court. The petitioner thereafter says that in the reference which was made by the petitioner to the Hon'ble High Court, the competency of making a reference by a Chief Judicial Magistrate was questioned.
4. The petitioner has been unusually vague on a matter of fact on which he should have been more clear, especially when he has elaborated at length on the correct meaning of section 251 of the Code. Naturally, we were compelled to ask Mr. Talekar, the context in which a reference is made to the reference made to the High Court. Mr. Talekar has stated that as a matter of fact there was a case pending before the petitioner under the Bombay Prohibition Act and the accused pleading guilty was sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 100. The accused preferred an appeal in which the learned Additional Sessions Judge set aside the order of conviction taking the view that the petitioner has not recorded the plea of the accused in his own words. Accordingly, says Mr. Talekar the matter was remanded to the petitioner for trial. Mr. Talekar has also stated that the learned Additional Sessions Judge found certain irregularities in the trial conducted by the petitioner.
5. From what has been stated in the petition and by Mr. Talekar before us, the petitioner therefore made a reference to the High Court inviting the High Court to give the correct interpretation of section 251 of the Code of Criminal Procedure. We repeatedly asked Mr. Talekar as to whether the petitioner abided by the direction given by the learned Additional Sessions Judge. Unfortunately no clear cut answer was given by Mr. Talekar to us. However, he has stated that before the directions were abided, the petitioner thought it fit to make a reference to the High Court seeking an opinion of this Court on the correct meaning and scope of section 251 of the Code.
6. In our opinion, the failure of the petitioner to abide by the direction given by the learned Additional Sessions Judge is an act of gross judicial indiscretion. It is also an act of gross insubordination. The petitioner, as far as this case is concerned, had no business, let alone jurisdiction, to question the correctness or otherwise or the opinion of the learned Additional Sessions Judge, who had remanded the case to his Court. It is not open to a subordinate Court after it has been directed by a superior Court that the case should be decided in accordance with law as understood by that superior Court to question the correctness or otherwise of the view taken by the superior Court.
7. This is the occasion which, according to Mr. Talekar, gives locus standi to the petitioner to question the vires of section 395(2) of the Code.
8. Even on merits of the contentions raised by the petitioner, we remained totally unmoved. The Code of Criminal Procedure envisages different Court invested with different powers. The procedure of trials and injuries before the different courts has been described in great details by the Code. The Code itself envisages not only different types of courts, but hearty of different Courts. A balance of powers is struck by the Legislature in its wisdom among the different courts. The Legislature has thought it fit to give different powers to the different Courts and to regulate the exercise of the same among the different courts. If , therefore, a Judicial Magistrate derives certain powers under the provision of the Code, he derives it as a Magistrate. He has no powers as an individual or as a citizen.
9. There is also a distinction made by the Legislature between the Metropolitan Magistrates appointed for the Metropolitan cities and the Judicial Magistrates including the Chief Judicial Magistrate for other areas. Article 14 of the Constitution which says that the State shall not deny to any person equality before the law or equal protection of laws within the territory of India has nothing to do with the person enjoying a particular office created by a law and invested with particular powers by that law. Apart from the post which a person is occupying, whether of a Judicial Magistrate or a metropolitan Magistrate or of a Court, he has no other rights or powers. If this position is correctly understood we do not see how a Magistrate can complain that he has got lesser powers than the Metropolitan Magistrate or how a Metropolitan Magistrate can complain that he has lesser powers that the Sessions Judge or the High Court. There is no question of discrimination or denial of equality in this provision so as to invite the wrath of Article 14 of the Constitution.
10. Similarly, it has also been contended by the petitioner that the said provision is in contravention of Article 21 of the Constitution which is in the following terms :---
'No person shall be deprived of his life or personal liberty except according to procedure established by law.'
We just fail to understand how the petitioner can complain that a particular provision which gives him powers takes away his life or liberty except in accordance with law. The whole petition is totally misconceived.
11. We have not been able to fathom the real motive of the petitioner in approaching this Court under Article 226 of the Constitution questioning the legislative wisdom of the Parliament in enacting section 395 of the Code of Criminal procedure.
12. In the result, the petition is rejected.