1. This is a reference by the learned Additional Sessions Judge of Cawnpore, sitting at Fatehpur, recommending that a certain order dated the 10th of August, 1924 by which a Magistrate framed a charge under Section 437 of the Indian Penal Code against Gokul Prasad and another may be set aside.
2. As already indicated, the case is still pending in the Court of the Magistrate and a preliminary objection has been taken as to the jurisdiction of this Court to interfere at this stage. The learned Sessions Judge anticipated the objection and has referred to two authorities, viz: In Re: S. Kuppuswami Aiyar (1915) 39 Mad. 561 and Hari Charan Gorait v. Girish Chandra Sadhukhan (1910) 38 Cal. 68, as establishing the proposition that the High Court may interfere where its interference is necessary at any stage of the proceedings before a Magistrate, I have examined these authorities and I have also examined the Criminal Procedure Code itself. Mr. Boys has also referred me to a case decided by Knox, J., and reported in the case of Queen-Empress v. J again, Singh (1892) A.W.N. 102.
3. It appears to me that both under Section 435 of the Criminal Procedure Code and the newly added Section 561-A of the Code, this Court has ample jurisdiction to interfere, provided the case be a suitable one for interference. The point being rather important, I will briefly state my reading of the Code. Section 435 of the Criminal Procedure Code enables the High Court to call for the record of any proceeding before any inferior criminal Court and to satisfy itself as to the 'regularity of any proceeding'. There can be no doubt that the framing of a charge was a proceeding. The question is, if an inferior Court framed a charge, where no charge should have been framed, can it be said that the error committed by it was not an 'irregularity' simply because the Court was authorised to frame a charge in hearing a case? The word 'irregularity' has the same meanings as the adjective 'regular' itself. The word 'regular' has got many meanings and one of these is 'Having all the essential attributes, qualities or parts', 'normal'; vide Murray's English Dictionary. There can be no doubt that if a charge is framed, where none should have been framed, it may be said without any violence to the language of the Code, that the proceeding of the Magistrate is 'irregular'. If the proceeding be irregular, it follows that the High Court has power to interfere. It seems quite clear to me that if the High Court has power to call for a record and 'to satisfy itself as to the regularity of any proceeding, it has also power to interfere, where interference is called for. This view has all along been taken by all the High Courts, so far as I am aware. This view is supported by the two cases quoted by the learned Sessions Judge. Coming to Section 561A, which has been newly added, it has been stated as the law that the High Court may make such orders as are necessary to prevent abuse of the progress of any Court or as are necessary to secure the ends of justice. Now, if it be the case that a charge has been framed, by a Magistrate where no charge should have been framed, to allow the trial to proceed would amount to allowing a mock trial to proceed, with the inevitable result that the trial would end in an acquittal. Even if the Magistrate convicts the conviction coming before the High Court is bound to be quashed. If such be the case, there can be no doubt that the High Court would be entitled to interfere under Section 561 A of the Criminal Procedure Code,
4. There being no doubt as to the jurisdiction of the Court let us examine the facts. The Magistrate by his order dated the 10th of August, 1924 came to the conclusion that no charge of theft could be established against the accused persons before him. It appears that one of the accused persons is a zamindar and he has ordered that good many trees out of a grove should be cut down. Good many trees have been cut according to the finding of the Magistrate in the course of no less than two months and in open day light. It has been found by the Magistrate and it has been clearly shown by the learned Judge that possession was with the zamindar who had ordered the trees to be cut. In the circumstances, the learned Magistrate came to the conclusion that he could not possibly frame a charge under Section 379 of the Indian Penal Code against the accused persons. He distinctly says that there was no 'dishonest' motive in the cutting of the trees. According to the definition in the Indian Penal Code, a thing is said to be done dishonestly when it is done with the intention of causing wrongful gain to one person or wrongful loss to another person'; In spite of having come to this conclusion, the learned Magistrate is of opinion that the accused persons before him committed the offence of mischief, Now, mischief involves an intention of causing wrongful loss to some person. If according to the finding of the learned Magistrate there was no dishonest intention and therefore no intention to cause wrongful loss it is difficult to see how a charge under Section 427 may be sustained. In the circumstance, to allow the case to proceed would be to allow a mock trial to proceed, with no purpose.
5. I accept the reference of the learned Sessions Judge and order that the charge framed by the learned Magistrate on the 10th of August, 1924 be quashed, that the entire proceedings before the learned Magistrate be quashed and the accused be discharged.