Richard Garth, C.J., Mitter, Wilson and Tottenham, JJ.
1. The question submitted to us for determination is whether a Magistrate of the first class is a Criminal Court inferior to the Magistrate of the district, within the meaning of Section 436 of the Code.
2. The learned Judges who have made this reference to a Full Bench were induced to do so, because of the importance of the question, and because the existing rulings of this Court in Nobin Kristo Mookerjee v. Russick Lall Laha I.L.R. 10 Cal. 268 and in Queen-Empress v. Nowab Jan I.L.R. 10 Cal. 551 followed as they were by the High Court of Allahabad in the case of Jhinguri v. Bachu I.L.R. 7 All. 134 by a single Judge, were found to be in conflict with later rulings on the same paint by the High Courts of Madras and Bombay as reported in the cases of In the matter of the petition of Padmanabha I.L.R. 8 Mad. 18, and Queen-Empress v. Pirya Gopal I.L.R. 9 Bom. 100. The ruling by the High Court of Madras was that of a Full Bench.
3. And it appears that in a more recent case at Allahabad--Queen-Empress v. Laskari I.L.R. 7 All. 853--a Full Bench of the High Court have practically dissented from the ruling of this Court by holding that the Magistrate of a district is competent to call for and deal with the record of a Magistrate of the first class under Sections 435 and 437 of the Code.
4. We think that the question should be answered in the affirmative. The supposed difficulty lies in assigning a meaning to the word 'inferior' in Section 435. The learned Judges who decided the case of Nobin Kristo Mookerjee v. Russick Lall Laha I.L.R. 10 Cal. 268 thought it necessary to attach a limited or technical meaning to the word, and held that the words 'inferior Criminal Court' must be construed to mean inferior so far as regards the particular matter in respect of which the superior Court is asked to exercise its revisional jurisdiction. They were accordingly of opinion that in cases tried by a Magistrate of the first class, whose jurisdiction to try is equal to that of the Magistrate of the district to whom no appeal would lie, the former officer is not inferior to the latter, although he is subordinate to him: because they considered the term 'inferior' to refer only to judicial authority in respect of the particular case of which revision is sought.
5. It appears to us, however, unnecessary to devise any special or technical meaning for the word 'inferior' in Section 435, unless we find that its ordinary meaning is not applicable. And we see no reason for holding that it is not. If we take the ordinary meaning of the word, there can be no question but that all subordinates are inferior to the authority to which they are subordinate; although inferiors' are not necessary subordinates. So within the territorial jurisdiction of a High Court, all other Courts are inferior to it: in a Sessions Division the Sessions Court is superior to all other local Criminal Courts, and all such other Courts are inferior to it: and in a district all other Magistrates are by Section 17 of the Code subordinate to the Magistrate of the district, and consequently inferior to him: and inferior as much for the purpose of Section 435 as in any other respect.
6. The High Court can under that section call for the record of any proceeding before any Criminal Court within the local limits of its jurisdiction; a Court of Session may do so as regards every other Criminal Court in the Sessions Division; and the Magistrate of the district can do the same as regards every other Magistrate's Court within his district. We entirely agree with the learned Judges who decided the case of Nobin Kristo Mookerjee v. Russick Lall Laha I.L.R. 10 Cal. 268 in the opinion, that the word 'inferior' in Section 435 was advisedly substituted for the word 'subordinate' used in the corresponding Section 295 of the Code of 1872. But we think that the true reason for this substitution must be that which is suggested by Justice Straight in the Full Bench case of Queen-. Empress v. Laskari I.L.R. 7 All. 853 It seems to us, as to the High Court of Allahabad, that the reason for his change in the word used was to meet the rulings that a District Magistrate is not subordinate to the Sessions Judge, and to provide that, nevertheless, the revisional authority of the latter over the former should remain unquestionable. We cannot suppose that there was any intention on the part of the Legislature to suggest that Courts subordinate to the Magistrate of the district are not also inferior to him. We, therefore, in reply to the question referred to the Full Bench, state our opinion that a Magistrate of the district is competent under Section 435 to call for and deal with the record of any proceeding before any Magistrate of whatever class in his own district.
7. When the case of Nobin Kristo Mookerjee v. Russick Lall Laha I.L.R. 10 Cal. 268 was before Mr. Justice McDonell and myself the question now referred to a Full Bench was a new one, and had not been discussed or considered by the other High Courts (so far as the reports show), or by other Judges of this Court. I gave in the judgment in that case reasons which then appeared to me to support the view there taken. Since the appearance of that judgment, the question has been fully considered and discussed by the Madras and Bombay High Courts, who have taken a different view from that acted upon in the case of Nobin Kristo Mookerjee v. Russick Lall Laha. My colleagues adopt the view taken by the Madras and Bombay High Courts. Under these circumstances, although I cannot say that my mind is wholly free from doubt, I think I ought to defer to the large majority who are in favour of a construction different from that which I originally accepted.
8. I therefore concur in holding that a Magistrate of a district can, under Section 435 of the Code of Criminal Procedure, call for and examine the proceedings of a Magistrate of the first class.