1. The petitioner baa obtained this rule against an order passed by the Additional District Magistrate of Howrah by which he has withdrawn a certain case from one learned Magistrate to his file and transferred it to the file of another Magistrate. The petitioner contends that this order of transfer is not justified and seeks to set aside the order.
2. On behalf of the opposite party which is the Municipality of Howrah, it is contended that this Court has no jurisdiction to interfere with the order passed by the learned Magistrate under 8. 628, Criminal P. C, as this would virtually amount to an order of transfer being made under 8. 626 of the said Code. It was pointed out that sitting singly this Court cannot pass an order of transfer under 8. 626, Criminal P. C. Secondly, it was contended that this Court has no power to set aside the order of the learned Additional District Magistrate because the same relief may be obtained by recourse to the specific provi. sions contained in Section 626, Criminal P. C. It is contended that if the parties wanted the case to be transferred from the file of the Magistrate to which it has now been transferred, they should apply under the provisions of Section 526 of the said Code which specifically provides for this relief and they should not be allowed to get this relief by having recourse to the provisions of Section 439 of the Code. Lastly it is contended that on the merits the learned Magistrate has not committed any error in transferring the case.
3. Reliance was placed by the learned advocats for the opposite party on two cases decided in the High Court of Rangoon, namely, $e case of Ashu v. Maung Po Kha & Ors, 1 Bang. 632 : (A.I.R. (11) 1924 Bang. 100: 26 Cr. L. J. 486) and the oase of Mohamed Isahuck & Anr, v. Emperor, 87 cr. L. J. 220 : (A.I.R. (22) 1935 Bang. 446). In the case of Ashu v. Maung Po Kha and Ors, l Bang. 632 : A.I.R. (11) 1921 Bang. 100: 25 Cr. L. J. 485) the facts were these: An application was made to the District Magistrate to transfer a case exercising his powers under Section 638, Criminal P. C. That application was dismissed and the applicant applied for relief under Section 436 read with 8. 139, Criminal P. C. The learned Judge in deciding this case held that what he was being actually asked to do was to order the case to be transferred from the Court which had now seisin of it to some other Court and he says that this virtually amounts to an application under Section 626 of the said Code and that this relief cannot be obtained in proceedings under Section 485 read with 8. 439 inasmuch as in these proceedings the provisions of 8. 526 have not been complied with. The learned Judge further held that the High Court's powers of revision are limited to those conferred by certain sections mentioned in Section 489, Criminal P. C. and as Section 626 is not one of those sections, the Court had no power of revision with respect to that case. This case was followed in the case of Mohamed Isahuch & Anr. v. Emperor, 87 cr. L. j. 220 : (a. i. B. (22) 1936 Bang. 416) and it is said that the High Court will have no power to revise an order passed under Section 638, Criminal P. C. With very great respect I am unable to follow these decisions. As regards the powers of the High Court under Section 489, Criminal P. C, I have expressed the opinion that it is very wide and that it is not limited to the powers mentioned in sub-B. (1) of Section 439. This view was expressed by me in the Full Bench case of Makabir Singh & Anr.'v. Emperor, 48 O. W.N, 118 at p. 186 : (AJ.B. (31) 1944 Oal. 17: 45Cr.L. J. 309 F. B.). I have held that powers of the revi-sional Court are not bounded by Section 489, sub-s, (1) and that the section merely empowers the revisional Court to pass at ita discretion any of the orders which an appellate Court may pass under the sections mentioned therein. In my view the Court after calling for the record under Section 436 has to satisfy itself as to the correotneas, legality and propriety of any order passed by an inferior Court and if it is satisfied that the order is not a proper one it may interfere. Section 439 (l) merely describes some of the reliefs whioh this Court may grant in exercising its revisional powers but it is not exhaustive.
4. Next, I would point out that even if it be held that the powers of the revisional Court are limited by the provisions contained in Section 489 U) it cannot be said that it has no power to set aside the order passed by the learned Magistrate in this case. In accordance with the provisions of 8, 439 (l) the revisional Court may exercise any of the powers coif red on a Court of Appeal by 8. 423, Criminal P. C. Now, Section 423 says that the appellate Court may exercise certain powers in the case of an order of acquittal and it may exeroise certain other powers in an appeal from a conviction. These powers are mentioned in Sub-section (1)(a) and (b) of Section 423. Clause (c) of t Section 423 (l) says that in an appeal from any other order the appellate Court may alter or reverse snob order. Now, in the present case the order is not one of conviction or acquittal but it cornea within the purview of the words 'any other order'. That being so, this Court can alter or reverse such order under Section 423 (l)(c), Criminal P. 0. read with Section 439 (l) of the same Code. This view was taken in the case of Raghunatha Pandaram v. Emperor, 26 Mad. 130 : (2 weir 689). In the ease of 7. G. B, M, Vellaohami Ohettiyar v. L. M. B, Mungappa Chettyar, 84 Or. L. J. 882 : (A. I. E, (20) 1933 Bang. 89) a different view was taken from that which was taken in the case of Ashu v. Maung Po Kha & Ors., 1 Bang. 682 : (A.I.R. (ll) 1924 Bang. 100). It was held there that the High Court has power under 8. 439 of the Code to alter or revise an order transferring a case mada under 8. 526. It was pointed out that the High Court has this power by virtue of the provisions of Section 428 (1)(c) of the Code.
5. The next point for consideration is whether in revising this order and in setting it aside this Court would be virtually making an order for transfer under Section 626 of the Code. In my ' opinion it would not. It may incidentally have the effect of re-transferring the case to the Magistrate who had original seisin of it. All that thin Court does is to set aside an improper order made by the Additional District Magistrate. The Court in doing this does not purport to act in accordance with the provisions of 8. 626 of the Code. I hold, therefore, that this Court has jurisdiction to entertain this application and if the circumstances so warrant to set aside the order passed by the learned Additional District Magistrate.
6. The next question for decision is whether the order of the learned Additional District Magistrate is an improper one and, therefore, liable to be set aside. The provisions of 8. 528 are extremely wide and it gives the Magistrates a very wide discretion of withdrawing a case from one Magistrate and transferring it to another. But it is a well-known principle that wider the discretion the more careful should be its exercise, The Court must exercise its judicial discretion and not act arbitrarily. This is made sufficiently clear by the fact that Section 523, Criminal P. C, requires the Court to record its reason for with-drawing a case and transferring it to another Court. Now, the only reason which the Additional District Magistrate has recorded is that in a similar case the trial Court has acquitted the accused on an interpretation of law. He says that the same point of law is involved in the present case and, therefore, it should be tried by another Magistrate. The learned trying Magistrate states very proprly that he has no objection to the case being transferred. He adds that be believed that he has a mind judicial enough not to be prejudiced in one case by the facts elicited in another. Now, the decision on the point of law in the first case involved the consideration of certain facts. In the present case the facts may be different. The learned Magistrate may come to quite a different conclusion on the question of law on the facts of the present case. I do not think that it was proper for the learned Additional District Magistrate to transfer the case merely because in a similar case the learned Magistrate has taken a particular view. If this procedure is adopted it would lead to unnecessary interruption in the trial of cases and hamper the work of Magistrates.
7. I accordingly set aside the order of the learned Additional District Magistrate. The rule is made absolute.