W. Comer Petheram, C.J., Tottenham, Trevelyan, Ghose and Beverley, JJ.
1. The facts of this case are sufficiently set out in the Order of Reference The question referred to us for our decision is the following:
Can a Sessions Judge try a person for an offence punishable under Section 196 of the Penal Code, when he has, as a District Judge, given sanction for the prosecution under the provisions of Section 195 of the Code of Criminal Procedure?' The reference has been rendered necessary in consequence of the decision in Madhub Chunder Mozumdar v. Novodeep Chunder Pundit I.L.R. 16 Cal. 121.
2. Section 487 of Code of Criminal Procedure now in force runs as follows:
Except as provided in Sections 447, 480 and 485, no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, the Recorder of Rangoon, and the Presidency Magistrates, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.
3. We are of opinion that in this section effect must be given to the words as such Judge or Magistrate, and the meaning of the section, we think, must 'be taken to be that when an offence referred to in Section 195 has been committed before a Judge of a Criminal Court or Magistrate, or in contempt of his authority, or brought under his notice in the course of a judicial proceeding, he cannot himself try such offence. That this is so, we think, is clear from the exception made in regard to the provisions of Section 477, under which a Court, of Session is empowered to charge and commit, or admit to bail and try, any person who has committed before it any offence of the kind referred to in Section 195. It appears to us that it would be inconsistent to hold that a Sessions Judge may try an offence committed before him as Sessions Judge, and that he may not try such an offence if committed before him as District Judge.
4. This view appears to have been taken by the Bombay High Court in the case of Empress v. D'Silva I.L.R. 6 Bom. 479. That was a decision under Section 473 of the Code of 1872, which section ran as follows: 'Except as provided in Sections 435, 436 and 472, no Court shall try any person for an offence committed in contempt of its own authority.' Under that section it was held that a Sessions Judge was not debarred from trying a case of forgery in which he had sanctioned the prosecution as a District Judge. The ratio decidendi in the case was much the same as that which has been indicated above. The learned Judges who decided that case said:
The Legislature seems to have been impressed by the sense of this inconvenience, and, consequently, in enacting Section 472 of the Code, it gave jurisdiction to the Court of Sessions to try all cases of contempt committed before it in which the offence is triable exclusively by the Court of Session. It would be difficult to suppose that the Legislature had any other intention in regard to offences of the same kind committed before the Judge of the Court of Session in his Civil capacity, and certainly Section 473 is not so worded as to oblige us to hold that there was any other intention.
5. It will be seen that Section 487 of the present Code, which corresponds to Section 473 of the Code of 1872, is couched in more definite language. The prohibition is restricted to a 'Judge of a Criminal Court,' and that being so, we think we must place a strict construction on the words 'as such Judge,' and hold that they do not include a Judge of a Civil Court or District Judge.
6. For these reasons we are of opinion that the Sessions Judge was not debarred by this section from trying the case which was the subject of this reference.