1. This is a Rule calling upon the District Magistrate of Maldah to show cause why, having regard to the statements made in paragraphs 3 and 4 of the affidavit of one Baman Chandra Chowdhry, affirmed on the 23rd May 1901, and those contained in para. 12 of the verified petition presented to this Court, as also the statements made by the petitioner to the Magistrate himself in a petition, dated the 10th May, the case under Section 145 of the Code of Criminal Procedure mentioned in the said petition to this Court and now pending in the file of the said District Magistrate, should not be transferred to Rajshahye or some other district.
2. The District Magistrate has, through a Deputy Magistrate, submitted an explanation, in which, among other matters, he raises the question whether this Court has power under Section 526 of the Code of Criminal Procedure to transfer a case under Section 145 of the Code of Criminal Procedure to some other Magistrate. And he has relied upon the case of Pandurang Govind Pujari . decided by the Bombay High Court.
3. The learned Advocate-General on behalf of the opposite party has also raised before us the sa(1900) I.L.R. 25 Bom. 179me question, and he has contended that in the circumstances of the case it is not expedient to transfer the proceedings from Maldah to some other Magistracy.
4. I propose, in the first instance, to discuss the question whether under s, 626 of the Code of Criminal Procedure, the High Court has the power to make the transfer, and, if it has not such power, whether it can do so under the Charter Act.
5. It will be observed, on a reference to Section 435 of the Code, that though the High Court may call for and examine the record of any proceeding before any inferior Criminal Court, in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by such inferior Court, yet proceedings under Chapter XII, which contains among others Section 145, are not proceedings within the meaning of the section; and it may, therefore, be doubted, whether, under Section 439 of the Code, this Court is possessed of revisional powers in regard to a proceeding under Section 145. But it has been held in several oases that this Court under the powers of general superintendence vested in it by Section 15 of the Charter Act, 24 and 25 Vict., Chapter 104, has the power of interfering with an order under that section, if it be made without jurisdiction, or it is an illegality affecting jurisdiction: (see Laldhari Singh v. Suhdeo Narain Singh (1900) I.L.R. 27 Cal. 892. and Anesh Mollah v. Ejaharwddi mouah (1900) I.L.R. 28 Cal. 446; and the question here arises whether this Court, being possessed of revisional powers, though not under Chapter XXXII of the Code, which deals with references to, and revision by, the High Court, has not also the power to transfer a proceeding under Section 145 from one Court to another, when the ends of justice require it.
6. Section 526 of the Code begins by saying: 'Whenever it is made to appear to the High Court.
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of justice or is required by any provisions of this Code.
7. And it then says it may order
(i) that any offence be inquired into or tried by any Court not empowered under Section 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular criminal case or appeal, or class of such cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular criminal case or appeal be transferred to and tried before itself; or
(iv) that an accused person be committed for trial to itself or to a Court of Session.
8. Two important questions here arise: first, whether an investigation in a case under Section 145 is not an ' inquiry' within the meaning of Clause (a); and, second, whether the Court of a Magistrate, when it deals with a case under Section 145, is not a ' Criminal Court ' within the meaning of the section. That it is an ' inquiry ' within the meaning of the Code is perfectly clear from Section 4, Clause (k), which says: ' inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court '; and so it has been held in the case of Satish Chandra Panday v. Rajendra Narain Bagchi (1895) I.L.R. 22 Cal. 898., where the question was raised whether a District Magistrate or a Sub-Divisional Magistrate is entitled to transfer or withdraw a case under Section 145 from the file of a Magistrate subordinate to him; and it was held that such power did exist.
9. As to the other question, namely, whether the Court of the Magistrate taking cognizance of a case under Section 145 is a 'Criminal Court,' it seems to me that it is a Criminal Court within the meaning of the Code. It is a Court which is constituted under Section 6 of the Act, and bound to administer the law relating to criminal procedure as prescribed by the Code. If, therefore, a proceeding under Section 145 is an inquiry in a Criminal Court, as indicated in the first part of Section 526, let us consider whether it is a criminal case within the meaning of the second part of the section. No doubt the first clause in that part of the section refers to an offence,' but the second clause is more general, and it-seems to me that, if the expression particular criminal case or appeal 'or' class of such cases or appeals ' refers only to offences, nothing could be simpler for the Legislature than to have framed it so that there could be no doubt about it. They might have said that the inquiry into or trial of any particular offence, or the appeal in such case or class of such cases or appeal be transferred, etc., etc., but instead of that they use a different phraseology. Reference was, however, made in the course of the argument to the fact that, inasmuch as the word ' criminal ' governs the word case as also the word ' appeal,' both the proceedings must arise out of some offence committed, and that the use of the expression 'accused person' in Clause (iv) bears out that position. No doubt the word 'criminal' governs both the case and the appeal; but I am not prepared to say that it follows from this that the 'criminal case' referred to must have reference to some offence committed, nor do I think that the expression 'accused person' supports that contention. These words, with reference to some other sections of the Code (Sections 340, 342 and 437) have received a wider interpretation, namely, a person over whom a Magistrate is exercising jurisdiction: see Jhoja Singh v. Queen-Empress (1892) I.L.R. 16 Bom. 661. Queen-Empress v. Mona Puna (1896) I.L.R. 28 Cal. 498. and Queen-Empress v. Mutasaddi Lai (1898) I.L.R. 21 All. 107.
10. Upon reference to Act IV of 1840, Sections 2 and 4, it will be found that, in the event of a dispute likely to induce a breach of the peace concerning any property, the Magistrate was authorized to inquire which party was in possession when the dispute arose, and was empowered to put such party into possession and to maintain him in possession until the right of the parties were determined by a competent Court; and further that where a person had been forcibly dispossessed of any property, the Magistrate was authorized to restore that party into possession and maintain him in such possession until the right to possession was determined by a competent Court. This Act, however, was repealed by Act XVII of 1862, which was in turn repealed by Act X of 1872. In the meantime by Act XIV of 1859, Section 15, it was provided that a suit would lie in the Civil Court for recovery of possession of any immoveable property if a person be dispossessed otherwise than by due course of law, if such suitwere brought within six months from the dispossession; and we also find that by Section 318 of the Code of Criminal Procedure of 1861 the Magistrate was empowered to determine, in the case of a dispute likely to induce a breach of the peace concerning any land, water or fishery, which party was in possession of the subject matter of dispute. Ever since then the Magistrate has continued to exercise jurisdiction in a case like this where there is a likelihood of a breach of the peace; and the Civil Court has also continued to exercise the jurisdiction which was vested in it by Section 15, Act XIV of 1859 (substituted by Section 9 of the Specific Belief Act). The jurisdiction, which under Act IV of 1840 was vested in the Magistrate, seems now to be divided between the Criminal Court and the Civil Court, and while the Civil Court under Section 9 of the Specific Belief Act is authorised to restore a party into possession, if he has within the last six months been dispossessed without his consent otherwise than by due course of law, the Criminal Court, in the event of an imminent danger of a breach of the peace resulting from a dispute between the parties, can only maintain a person in possession, if he is found to be in such possession upon the date of the institution of a proceeding under Section 145, or, if he was in possession within two months antecedent to that date. But the foundation of a proceeding under Section 145 of the Code, as already indicated, is the existence of a dispute likely to cause a breach of the peace; and when such a dispute is not shown to exist, the Magistrate has no jurisdiction to take action. In this view of the matter, the proceeding under Section 145 partakes of the character of a criminal case; and, though that section lays down only a preventive measure, and it occurs in Chapter XII, which is contained in Part IV headed ' Prevention of Offences,' yet I am not prepared to hold, as it has been contended before us, that it is not a ' criminal case ' within the meaning of the Code. It will be observed that there are other sections of the Code which deal with preventive measures, and which are contained in the same Part IV, e.g., Sections 107 and 110. Are proceedings under these sections criminal cases or what? I think these may well be described as criminal cases; and this Court, I am informed, has exercised jurisdiction in transferring such cases under Section 526 of the Code. For example, see the unreported case of Ahmed Hossain Unreported, dated 12th Jane 1899., decided on the 12th of June 1899; and I find that in that case the question was raised by the Magistrate concerned upon the authority of the case of Amar Singh in re (1898) I.L.R. 16 All. 9, whether the Court had authority to transfer such cases to some other district and, notwithstanding the objection raised, an order was made for the transfer. If a proceeding under Section 107 or Section 110 may be regarded as a criminal case which may be transferred, I do not see how a proceeding under Section 145 can be regarded in any other light. It is noteworthy that Section 192 of the Code under which a District Magistrate or a Sub-Divisional Magistrate may make an order of transfer in any case occurs in Part VI headed ' Proceedings in Prosecutions,' and in a chapter which deals mostly with the procedure in inquiry into offences. And it seems to me that it would be rather anomalous if a District Magistrate, while not authorised to interfere with an order made under Section 145, has the power to transfer a case instituted under that section from the file of one Subordinate Magistrate to another, the High Court, though possessed of revisional powers and entitled to set aside such an order, is not authorised to make an order of transfer. In this connection I may refer to a note by Sir Henry Prinsep in his recent edition to the Code of Criminal Procedure under Section 526, p. 516, which runs as follows:
The High Court may also order that a criminal case or appeal be transferred to and tried before itself, or that the accused be committed to itself or to a Court of Session. It should be noted that by the use of the expression 'a criminal case' the orders of the High Court is not restricted to an inquiry or trial of an offence. But an order for the transfer of a criminal case or appeal can be made only when such case or appeal is before a Court ordinarily competent to try or hear it.
11. Upon these considerations I should be inclined to think that the expression ' criminal case ' occurring in Section 526 may well be understood as simply distinguished from a civil case, or in other words that a ' criminal case' is one over which a Criminal Court exercises jurisdiction.
12. But there is one point which, I am bound to say, does raise a doubt whether the Legislature meant to give the High Court power to make a transfer in a case other than strictly criminal under Section 526. Sections 192 and 528 in speaking about the withdrawal or transfer of a case by a District Magistrate use the words 'any case,' whereas Section 526 says 'criminal case.' And while Section 44 of the old Code of 1872 (corresponding to Section 192 of the present Code) provided for the transfer of ' criminal cases ' by the Amending Act XI of 1874, the word ' criminal ' was struck out and has been omitted from all the subsequent enactments, while Section 64 (corresponding to Section 526) of the Code of 1872 used the expression ' criminal case,' and this expression has throughout been retained. These two circumstances create a doubt whether the Legislature meant to confer on the High Court the power of making a transfer in cases other than those in which a person is charged with an offence, and, that being so, I proceed to consider whether this Court has not the power to make the order of transfer under the Charter Act. Under Section 15 of the Act the High Court has the general power of superintendence over all Courts which may be subject to its appellate jurisdiction, including the power to direct the transfer of any suit or appeal; and it has been held by this Court in several cases that the High Court has the power to set aside an order under Section 145, if such an order is made without jurisdiction, or if there is an illegality in the order affecting jurisdiction.
13. Under that section this Court has taken powers to revise the proceedings of Presidency Magistrates, such powers being doubted to exist under the Code of Criminal Procedure: see Opoorba Kumar Sett v. Sreemutty Probod Kumary (1898) 1 C.W.N. 49 and Charoobala Dabee v. Barendra Nath Mozumdar (1899) I.L.R. 27 Cal. 126 and I do not understand why, if this Court is empowered under its general powers of superintendence under the Charter Act to interfere with the proceedings held by a Magistrate under Section 145, it has not also the power to transfer such proceeding from the file of one Magistrate to that of another. In this connection I desire to refer to Section 178 of the Code of Criminal Procedure, which runs as follows:--
Notwithstanding anything contained in Section 177, the Local Government may direct that any case or class of cases committed for trial in any district may be tried in any Sessions division.
14. Provided that such direction is not repugnant to any direction previously issued by the High Court under Section 15 of the Indian High Courts Act, 1861, or under this Code, Section 526.
15. The proviso, to my mind, clearly indicates that the High Court has the power to make an order of transfer either under Section 526 of the Code or under Section 15 of the Charter Act. If the High Court may under Section 15 of the Charter Act direct the transfer of any case or class of cases committed for trial in any district for trial to any Sessions division, I do not understand why the same power may not be exercised in respect of a case under Section 145 of the Code, which a Magistrate has taken cognizance of. I hold that this Court has the power to make an order of transfer under the Charter Act, and I may here mention that this Court has, on certain occasions, entertained applications for the transfer of oases under Section 145, though I cannot find any case where the order was actually made, the applications being rejected on the merits.
16. I now come to deal with the merits of the application that has been presented to us. this Court has on several occasions observed that next to the importance of deciding a case fairly and impartially is the importance of conducting oneself in such a manner as to inspire in the minds of the parties a confidence that nothing but absolute justice would be done to them, and I need hardly say that, if by reason of the words or conduct of a Magistrate or Judge, before whom a case is pending, any party reasonably apprehends that there is a bias against him in the mind of the officer concerned, it would be expedient for the ends of justice to transfer the case from his file to that of some other officer competent to try it, though there may not be any actual bias: see Dupeyron v. Driver (1896) I.L.R. 2S Cal. 495 and The Legal Bemembrancer v. Byairdb Ghandra Chuokerbutty (1897) I.L.R. 25 Cal. 727. In the present instance the affidavit presented to this Court, and a petition presented to the Magistrate himself, before whom the case is pending, attribute to him certain words as having been uttered by him in the course of the investigation to the agent of the petitioner, which, if uncontradicted, might reasonably create an apprehension in his mind that the Magistrate is biased against him. Neither the explanation submitted by the Magistrate nor the counter-affidavit filed by the opposite party distinctly contradicts the statements made on behalf of the petitioner. We can have no doubt in our own minds that, notwithstanding the words which have been attributed to the Magistrate, he has no real bias against the petitioner; but still, so far as the petitioner is concerned such words are calculated to create in his mind a reasonable apprehension that justice may not be done to him. In this view of the matter, and without casting upon the Magistrate the slightest reflection, we think it expedient for the ends of justice to transfer the case from his file to that of the District Magistrate of Rajshahye.
17. We gather from the affidavits that have been presented on either side that most of the witnesses to be examined in this case are witnesses that would come from or near the property, the subject matter of dispute, and that the means of communication between that part of the district of Maldah and the town are nearly the same as between it and Rajshahye. That being so, I do not think that it would cause any real hardship to any of the parties concerned or to their witnesses if they have to go to Rajshahye. It will be for the District Magistrate of Rajshahye to determine whether he should take up the case himself or transfer it to the file of some other Magistrate in his district. If there be any subdivison in that district which is comparatively closer to the property, which is the subject matter of dispute, than the bead-quarters of the district, the District Magistrate will transfer it for inquiry to the officer in charge of that subdivision.
18. We accordingly make the rule absolute.
19. Looking at the history of the present Code of Criminal Procedure, it is clear that in 1874 by Act XI of that year a distinction was made by the Ligislature between 'cases' and'criminal cases.' In certain sections, but not in all, the wording was altered from the latter to the former, the word 'criminal' being in those instances omitted.
20. Having regard to this fact and to the further fact that the distinction has been continued and extended (see Sections 178, 192, 528, 556, where the wording is 'case,' and Sections 526, 527 where the wording is 'criminal case,' I am of opinion that the two phrases are not in the Code of Criminal Procedure co-extensive, and that the phrases are not used indiscriminately or inter-changeably. And further it appears to me that the phrase 'criminal case' is intended to be used in a limited sense, and not to apply to every case cognizable by a Criminal Court. For this reason, and also in consideration of the provisions of Section 435 (3) of the Code of Criminal Procedure, I would doubt the existence of a power under Section 526 of the Code of Criminal Procedure 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.
21. But the power it appears to me exists under Section 29 of the Letters Patent. For in the Letters Patent 'criminal case' appears to be used without the distinction which apparently exists in the Code of Criminal Procedure in respect of cases tried by a Criminal Court as opposed to civil cases. Under the circumstances of the present case, which have been set out fully in the judgment of my learned brother, I am of opinion that we ought to exercise the power we undoubtedly possess in the interests of justice, and I concur in the proposed order.