1. This is an application for transfer of two cross cases now, de facto pending before Mr. Jhanki Nath Sahai, a Magistrate of Azamgarh, exercising the powers of a Sub-Divisional Magistrate.
2. It appears that one Deepu filed a complaint against one Akbar. The case was sent to the Court of an Honorary Magistrate, Rai Sahib Babu Din Dayal Sahu Akbar filed a cross complaint, which was also pending before the said Honorary Magistrate. Akbar induced the Officer to send the cases back to the Sub-Divisional Magistrate, evidently because Akbar did not want that Sahu Din Dayal should hear the cases. The learned Sub-Divisional Magistrate returned the cases. Akbar then applied to the District Magistrate for transfer. The learned District Magistrate transferred both the cases from the file of Sahu Din Dayal to the file of the Tahsildar Magistrate. Then, it appears, that Deepu put in an application before the Sub-Divisional Magistrate asking him for transferring the cases from the Court of the Tahsildar Magistrate. Babu Janki Nath Sahai passed an order dated the 27th of August, 1924, and thereby purported to have the cases transferred from the file of the Tahsildar Magistrate to his own file.
3. In the transfer application two points are made. One is that the Sub-Divisional Magistrate had no jurisdiction to practically set aside the order of the District Magistrate transferring the cases to the Cour6 of the Tahsildar Magistrate. The second point is that having regard to the temper expressed in his order dated the 27th of August, 192i, the applicant Akbar feels that he would not have impartial justice at the hands of the learned Sub-Divisional Magistrate.
4. On the first point, it is pointed out by Deepu's counsel and also by the learned Sub-Divisional Magistrate that the learned District Magistrate has, so to say, condoned the order of transfer passed over his head by the Sub-Divisional Magistrate. There can be no doubt that under Section 528, of the Criminal Procedure Code a Sub-Divisional Magistrate has the power to withdraw any case pending before a Subordinate Magistrate. This would give jurisdiction to Babu Janki Nath Sahai to withdraw the cases pending before the Tahsildar Magistrate. But, in my opinion the section cannot be so read as to imply that after a District Magistrate has transferred certain cases from one file to the file of another Magistrate, a Sub-Divisional Magistrate, who is subordinate to the District Magistrate, has jurisdiction to nullify that order by ordering a fresh transfer of the cases to his own file. There is a clash of jurisdiction and authority in a case like this and it must be ruled and I do rule that the Sub-Divisional Magistrate's order dated the 27th of August, 1924, was ultra vires. The cases must, therefore, be still, in law, taken as pending before the Tahsildar Magistrate.
5. It has been urged that the District Magistrate's order which I will quota presently, may be taken as withdrawing by his own authority, the cases from the Court of the Tahsildar Magistrate and transferring them to the Court of Babu Janki Nath Sahai, The language is this:
Seen. The cases will be disposed of by the Sub-Divisional Officer. He has every right to take them OQ his file.
6. I am not satisfied that the learned District Magistrate was really, by the use of the language mentioned, transferring the cases from the Court of the Tahsildar Magistrate to the Court of the Sub-Divisional Officer. He does not assign any reason which would be necessary for him to record under Clause (5) of Section 528 of the Criminal Procedure Code. The statement that the Sub-Divisional Officer has every right to take the cases on his file goes to show that the learned District Magistrate was merely approving of the action taken by the Sub-Divisional Officer.
7. I, accordingly, set aside the order of the learned Sub-Divisional Officer passed on the 27th of August, 1924, as also the order of the learned District Magistrate dated the 9th of September, 1924, lest the latter should create any further complication in the case.
8. In the view of the law I take, it is not necessary to discuss the second point. I will, however, point out to the learned Sub-Divisional Officer that use of strong language by a Court is never calculated to satisfy the litigant public before it. An Officer is sometimes bound to feel strongly on particular occasions, but as soon as he expresses himself strongly, he gives himself away and if he raises, by his language, an apprehension in the mind of a party that the Officer prejudiced, the Officer has only himself to thank, Besides a calm state of mind is absolutely essential for the disposal of all cases whether civil or criminal.
9. On the ground already stated, I order that the cross cases now on the file (but without jurisdiction) of Babu Janki Nath Sahai, be transferred to the Court of some stipendiary Magistrate other than Babu Janki Nath Sahai, at the head-quarters a6 Azamgarh, as the learned District Magistrate may choose.