1. This is an application in revision against an order of the Second Additional Sessions Judge of Gorakhpur purporting to act as the Sessions Judge of Gorakhpur, whereby he transferred a criminal appeal filed by one Mr. Daulat Ram Asthana from the file of the First Additional Sessions Judge of Gorakhpur sitting at Basti to the file of the Sessions Judge.
2. Mr. Daulat Ram Asthana was charged before a Subdivisional Magistrate of the First Class, Mr. Ahmad Hasan, under Sections 12 and 13, Printing Press and Registration of Books Act (Act 25 of 1860). It appears that the press had been under the control of the District Board itself, and the Chairman of that Board had in due course made the proper declaration, as required by the Act. The District Board however thought it would be more convenient that the press should be in the charge of the Education Committee, and the press was put in the charge of the Education Committee who in turn asked Mr. Asthana, an advocate practising at Basti, and also a member of the District Board and Education Committee, to take charge of the press. The Chairman of the District Board, for some reason or other not disclosed, thought it his duty to draw the attention of the District Magistrate to the fact that the District Board had delegated its authority over the press to the Education Committee, and went so far as to suggest that the declaration given by himself as Chairman would not now be operative. It is difficult to understand the reason of such a communication from the Chairman to the District Magistrate, and one can only speculate; but the District Magistrate made a complaint concerning Mr. Asthana for not filing a declaration. The case was sent for trial to the Sub-divisional Magistrate, Mr. Ahmad Hasan, and after trial Mr. Asthana was convicted and sentenced in all to six months' simple imprisonment and a fine of Rs. 1,000. Mr. Asthana filed an appeal in the Court of the Additional Sessions Judge of Basti, and for some reason or other, which reason again is not apparent, this transfer was made by the Second Additional Sessions Judge at Gorakhpur, of the appeal from the file of the Additional Sessions Judge at Basti to the file of the Sessions Judge.
3. Mr. Iqbal Ahmad, on behalf of the applicant, contends that the order was made without any jurisdiction, and without any notice, to him and that it is ultra vires. I am satisfied that the contention of counsel for the applicant is sound. I can find nothing in the Criminal Procedure Code which gives jurisdiction to the Sessions Judge him self to transfer an appeal from the file of an Additional Sessions Judge to his own file, and even supposing a Sessions Judge had such jurisdiction, counsel who appears for the Crown cannot point out any provision in the Criminal Procedure Code by which an Additional Sessions Judge can issue such an order to another Judge of equal jurisdiction to himself. On this latter point it is suggested that authority is given under Section 17 (4), Criminal P. C, to a Sessions Judge, when he himself is unavoidably absent or incapable of acting to make provision for the disposal of any urgent application ay an Additional or an Assistant Sessions Judge. That is the only provision of the Criminal Procedure Code to which I am referred for the proposition that an Additional Sessions Judge can transfer oases from the file of a brother Additional Sessions Judge to that of the Sessions Judge. It is admitted by counsel for the Crown that there was no application in this case at all. An application within the meaning of Section 17 (4) must be an application which is recognized by law, that is, a document properly stamped. There was not even an oral application in Court. In fact it is one of the peculiarities of this case that no one appears to know how this matter came to the attention of Mr. Ziaul Hasain at all. At any rate, it is clear there was neither an application in the proper sense of the word nor an oral application by counsel in Court. There certainly was no urgency about it. So it is perfectly clear that Section 17 (4) cannot give jurisdiction in this matter to the Second Additional Sessions Judge who 'passed the order.
4. It is, in my opinion, also clear, even supposing it could be shown that Mr. Ziaul Hasan had authority to act judicially for the Sessions Judge, that the Sessions Judge himself had no jurisdiction to make any such order. The only section in the Criminal Procedure Code which deals with the power of a Sessions Judge to transfer a case is Section 528 (1), which enacts that any Sessions Judge may
withdraw any case from, or recall any case which ha had made over to, any Assistant Sessions Judge subordinate to him.
5. Nothing whatever is said as to any power to withdraw any case or recall any case from an Additional Sessions Judge. In fact, if one refers to Section 17 (3), Criminal P. C, it is seen that the Code itself enacts that Assistant Sessions Judges shall be subordinate to the Sessions Judge; but does not enact, for the purposes of that section at any rate, that the Additional Sessions Judge shall be subordinate to him. There is a distinction made between the position of an Additional Sessions Judge and that of an Assistant Sessions Judge. Counsel for the Crown is forced to rely upon what he calls the inherent jurisdiction of a Sessions Judge, from the very nature of his office, to transfer cases from the Court of an Additional Sessions Judge to his own Court. Where however the powers of transfer of the Sessions Judge are expressly set out in Section 528 (1) it is impossible to allow any further ' inherent ' powers of transfer.
6. A further point has been taken by counsel for the applicant that jurisdiction has been given by a Gazette Notification of the Government on 2nd January 1926, to the First Additional Sessions Judge of Gorakhpur at Basti to try cases and appeals arising from judgments passed by the Magistrate of the Basti District. The actual words of the notification, which of course has the effect of law, are that
the First Additional Sessions Judge of Gorakhpur at Basti shall try cases admitted and appeals arising from judgments passed by the Magistrate of Basti....etc,
7. It is contended that the word 'shall' must be construed as it would be construed in any statute, that it is mandatory, and that it is impossible to read ' shall ' as ' may.' There is another notification which deals with the work of the First Additional Sessions Judge of Gorakhpnr sitting at Gorakhpur the same date, which enacts that he
shall try all those cases committed and appeals arising from judgments passed by the Magistrates of Gorakhpur District which are not tried by the Sessions Judge himself or which are transferred by the Sessions Judge to his file.
8. It appears to me that there is force in this contention. It is difficult to associate the provision that the Judge of Gorakhpur at Basti shall try appeals from the Magistrates of the Basti District with any concurrent jurisdiction of the Sessions Judge at Gorakhpur in the same matters. While the word 'shall' is used the notification is subject always to all the provisions prescribed in the Criminal Procedure Code, which means that the powers of the High Court as regards transfer are not interfered with in any shape or form by the notification. I am therefore, satisfied that the orders complained of, dated 25th October and 31st October 1930, are without jurisdiction and must be quashed. The case will go back to the First Additional Sessions Judge of Gorakhpur at Basti to be heard and concluded according to law. If there is any real reason for a transfer of this case to any other Court, a proper application supported by affidavit will no doubt be made in the High Court.