1. In this case it appears that five persons were placed on their trial on a charge under Section 143 and were acquitted. The trial took place in the Court of Babu Makhan Lal Chatterjee, a Magistrate exercising first Class powers. The present petitioner was the complainant in the case to which we have referred and after the disposal of that case and the transfer to another District of the Deputy-Magistrate, an application was made by one of the accused persons for sanction under Section 195 of the Criminal Procedure Code to the prosecution of the petitioner on a charge under Section 211 of the Indian Penal Code. That application was made to and was granted by the District Magistrate.
2. It is conceded that for the purposes of Section 195 of the Code the Court of the Deputy Magistrate was subordinate, not to the District Magistrate, but to the Sessions Judge and the question we have to consider then is, whether in view of the provisions of Section 195, Sub-section (1), Clause (b), the District Magistrate represents the Court in which the alleged offence punishable under Section 211, Indian Penal Code, was committed.
3. In showing cause against the Rule it has been suggested by the learned Pleader who has appeared on behalf of the Crown that inasmuch as on the departure of the Deputy Magistrate, all cases then pending in his Court were placed before the District Magistrate we should hold that for the time being the District Magistrate became the presiding Judge in the Deputy Magistrate's Court.
4. Now it may well be that in so far as he proceeded to dispose of such part-heard cases the District Magistrate, within the meaning of Section 350 of the Code succeeded to and exercised the jurisdiction which the Deputy Magistrate had ceased to exercise.
5. But neither the case under Section 148 nor the application for sanction were among the cases so left part-heard, and when the District Magistrate placed on his own file all such cases it would seem that he did so not in order to the exercise of the Deputy Magistrate's functions, but in order to the exercise of his own higher functions and the re-distribution of the pending business among his subordinate Magistrates.
6. For these reasons we hold that the District Magistrate was not competent to make the order now in question. We accordingly make this Rule absolute and set aside the sanction complained of.