1. The question referred to is whether the High Court has jurisdiction, under Section 526 of the Code of Criminal Procedure or under the Letters Patent, especially Section 22, to transfer from the Court of one Magistrate to the Court of another Magistrate a proceeding under Section 145 of the Code of Criminal Procedure.
2. There is a conflict of authority on the point. In In re Pandurang Govind Pujari 25 B. 179, it was held that the High Court had no power, under Section 526 of the Code, to transfer a proceeding under Section 145 of the Code from one Court to another. The reason given is that such a proceeding is not a 'criminal cafe' within the meaning of Section 526; that a criminal case means a case arising out of and dealing with some crime already committed and does not include proceedings taken for the prevention of a crime. The Madras High' Court, in In re Arumuga Tegundan 26 M. 188, dissented from the Bombay case. The learned Judges said: 'We have no doubt of our power to transfer this case both under Section 526 of the Code of Criminal Procedure and Clause 29 of the Letters Patent. If a case under Section 145 of the Code of Criminal Procedure is not a 'criminal case', it is difficult to conceive what it is. With all respect, we are unable to agree with the decision of the Bombay High Court In re Pundurang Govind Pujari 25 B. 179'. In Lolit Mohan Moitra v. Surja Kanta Acharjee 28 C. 709 Ghose, J., held as follows:
An investigation under Section 145 of the Code of Criminal Procedure is an inquiry within the meaning of Clause (a) of Section 526 of that Code.
3. A Magistrate trying a case under Section 145 is a Criminal Court within the meaning of the Code.
4. The expression 'criminal case' in Section 526 means a case over which a Criminal Court has jurisdiction.
5. It is doubtful whether the High Court has power under Section 526 to transfer cases other than those in which a person is charged with an offence.
6. The High Court may under Section 15 of the Charter Act transfer a case under Section 145. Taylor. J., held as follows:
The expression case' and criminal case' are not co-extensive. The phrase 'criminal case' is used in a limited sense and does not apply to every case cognizable by a Criminal Court. It is doubtful whether the High Court has power under Section 526 to transfer cases which do not relate to matters which may strictly be described as criminal as relating to a crime or offence under the law. The power, however, exists under Section 29 of the Letters Patent wherein the phrase 'criminal case' appears to be used without the distinction which apparently exists in the Criminal Procedure Code in respect of cases tried by a Criminal Court as opposed to Civil cases.
7. In Gurudas Nag v. Gaganendra Nath Tagore 2 C.L.J. 614 L 3 Cr.L.J. 83 Rampini and Mockerji, JJ., held that a proceeding under Section 145 of the Code of Criminal Procedure was a criminal case' and expressly dissented from In re Pudurang Govind Pujari 25 B. 179.
8. Our answer to the question turns upon (he meaning we give to the phrase criminal case' in Section 526 of the Code of Criminal Procedure. There is nothing ' in the section to lead us to infer that the phrase means a criminal case' arising out of an offence which has already been committed. Had that been the intention of the Legislature, it could have easily expressed it in apt words and would not have used an expression of a larger connotation. We are of opinion that it includes proceedings taken under Section 145 for the prevention of a crime.
9. A Magistrate who conducts those proceeding a does so as a Criminal Court under the provisions of the Code of Criminal Procedure and it cannot be said that he performs they function of an Executive Officer. The expression 'criminal case' in Clause (8) of Section 526 need not necessarily be taken to have been used in the narrow sense of a criminal case arising out of an offence already committed.
10. The High Court is the highest tribunal in these Provinces and one of its important functions is to supervise the work of all the Criminal Courts subordinate to it and there is no reason why the Legislature should deem it fit to limit the power of the High Court to transfer only such 'criminal cases' as arise out of the offences already committed and for that purpose should use a phrase of a more general import.
11. Besides, such a limitation' can serve no useful purpose. The contention of the learned Counsel for the opposite party that the expression an 'accused person', which occurs in Section 526 of the Code, indicates that the phrase 'criminal case' refers only to such cases as arise out of the offences which have already been committed, is without force. That expression has been used in a larger sense, i.e., the person over whom a Criminal Court exercises jurisdiction. Banerji, J., in Queen-Empress v. Mutasaddi Lal 21 A. 107 said: ' The Code of Criminal Procedure contains no definition of an accused person' but it was held by the Bombay High Court in Queen-Empress v. Mono. Puna 16 B. 661 that the term accused' means a person over whom a Magistrate or other' (Criminal) Court is exercising jurisdiction.' The same view was taken by the Calcutta High Court in Jhoja Singh v. Queen-Empress 23 C. 493. I see no reason to put a different interpretation on the words 'an accused person, in Section 437.'
12. It was further urged that proceedings under Sections 176, 488 and 491 of the Code of Criminal Procedure can hardly be called criminal case,, notwithstanding the fact that they are conducted under the Code of Criminal Procedure and this shows that every proceeding held under the Code is not a criminal case. In our opinion, this contention is without substance. We are inclined to hold that, in the absence of anything to the contrary, every case over which a Criminal Court exercises jurisdiction under the Code is a criminal case' for the purposes of that Code.
13. On a careful consideration of the wording of Section 526 of the Code of Criminal Procedure, the policy of the law and the cases to which we have referred in this judgment, we hold that the expression criminal case' in Section 523 includes a proceeding initiated under Section 145 of the Code and that the High Court under Section 526 has power to transfer it from one Court to another Court subject, of coarse, to all the conditions under which a transfer can be made.
14. In this view of the case, it is unnecessary to consider the effect of Section 22 of the Letters -Patent upon the power of the High Court to transfer a proceeding under Section 145 of the Code of Criminal Procedure.