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Criminal Reference No. 73 of 1961, decided on 18th April, 1961.

S. 438‑Order passed by Sessions Judge‑District Magistrate cannot make reference to high Court.

The District Magistrate cannot make a reference against an order passed by the Sessions Judge.

A District Magistrate who considers that there has been a miscarriage of, justice in the Court of Session should not report the case to the High Court for orders under section 436, Cr. P. C. but should communicate with the Public Prosecutor and invite his assistance to move the High Court.

Queen‑Empress v. Karamdi I L R 23 Cal. 250 ; Queen‑Empress v. Jahandi I L R 23 Cal. 249 ; Emperor v. Jamna Bai I L R 28 All. 91; Emperor v. Khuda Bux and another A I R 1927 Sind 45 ; Emperor v. Allah Mahr others A I R 192 7 All. 279 ; Emperor v. Ishar Singh A I R 1927 Lah. 85 ; Emperor v. John Francis Lobo A T R 1916 Bom. 156 ; In re Angamuthu Vanathrian 13 Cr. L J 714 ; Emperor v. Maung Myat E A I R 1931 Rang. 251 and Emperor v. Baijnath Prasad and another A I R 1933 Pat. 305 ref.

S. 439‑High Court can interfere with order passed by Sessions Judge in revision.

The power of the High Court under section 439 to interfere with an order passed by the Sessions Judge when a matter comes to its knowledge, whatever the source may be, cannot be doubted.

Queen‑Empress v. Shere Singh I L R 9 All. 362 rel.

Khalid Ishaque for the State.

A. S. Pirzada for Respondents.

Dates of hearing : 17th and 18th April 1961.

This is a reference under section 438, Cr. P. C., by the District Magistrate, Sukkur for quashing the order of the learned Sessions Judge, Sukkur granting bail to the respondents. The reference shortly put arises in these circumstances:

The respondent Bhura Khan and 9 others were proceeded with by the Station House Officer, Sultankot under section 107 of the Criminal Procedure Code. He initiated the proceedings before the Sub‑Divisional Magistrate, Shikarpur on 24th January 1961. According to the reference order the learned Magistrate passed an order under sections 112 and 1.17 (3), Cr. P. C., against the respondents on the same day. The respondents failed to submit security in terms of the order passed by the learned Magistrate. They were remanded to custody.

2. On 25th January 1961, an application under section 496 Cr. P. C. was made by Mr. Agha Badruddin, an advocate practising at Sukkur before the learned Session Judge, Sukkur. The application for bail specifically mentioned that no order under section 117, Cr. P. C. was passed by the learned Sub- Divisional Magistrate, Shikarpur on 24th January 1961. It would be useful to reproduce the order of the learned Sessions Judge, Sukkur on the application under section 496, Cr. P. C. The order is dated the 26th January 1961, and reads as under:

"Mr. Pir Bux Awan; A. P. P. heard. He says section 496, C r. P. C. applies because there is no order under section 117, Cr. P. C. The offence under section 1.06, Cr. P. C. is bailable. I allow all the accused Bhoora Khan, Abdul Rehman Khan, Dinal Allah Bux, Hidayatullah, Ghousu, Babu alias Abdul Wahab Pariah. Ghulam Hyder, bail in the sum of Rs. 5,000 each."

3. The reference by the learned District Magistrate has been made mainly on the ground that section 496, Cr. P. C. could not apply as an order under section 117 (3), Cr. P. C. had been passed by the learned S. D. M. on 24th January 1961.

4. Mr. Khalid Ishaque, the learned Advocate who appeared for the State candidly stated that the reference by the D. M. against the order of the learned Sessions Judge granting bail was incompetent. In order to appreciate the submission of the learned Additional A. G. it would be useful to reproduce section 438 of the Criminal Procedure Code. It runs as under:

"438 (1). The Sessions Judge or District Magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered, may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.

(2) An Additional Sessions Judge shall have and may exer cise all the powers of Ia Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge."

Under section 435, Cr. P. C., the power of the District Magis trate has been clearly laid down. He may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of his jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. The present reference has not been made under section 435, Cr. P. C. apparently because the Sessions Judge is not inferior to the District Magistrate. The question, however, for consideration is as to what is the import of the language used under section 438, Cr. P. C. The relevant word that requires interpretation is otherwise' occurring in section 438, Cr. P. l;. The District Magistrate may if he thinks fit on examing under section 435, or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination. The word otherwise' has been directly interpreted in two authorities. The leading case appears to be Queen‑Empress v. Karamdi (I L R 23 Cal. 250). In that case the District Magistrate made a reference under section 438 of the Criminal Procedure Code to the High Court questioning the propriety of a finding and sentence by the Sessions Judge. Ghose and Hill, JJ., while considering the provision of section 438, Cr. P. C. observed as under:

"We are not aware under what authority the reference has been made. Such references have always been condemned by this Court as irregular. The power given to a District Magis trate to make a reference to the High Court is conferred by section 438 read with section 435 of the Criminal Procedure Code. But this clearly refers to a "proceeding before any inferior Criminal Court" and notwithstanding the words "or otherwise," in section 438, we do not think that the Legislature ever intended to give to a Magistrate the power to question the propriety of a judgment or sentence by a superior criminal authority, as the Session Judge is, to prefer the proceed ing to the High Court for revision. Section 439 read with section 435 gives to the High Court the authority to examine the record of any proceeding (whether it be of a Sessions or Magistrate's Court, and however, it might have been brought up) and . interfere with or alter the conviction or sentence or other order, but notwithstanding the use of the words "or which has been reported for orders," as in section 439, it could never have been intended that such report might be made by an inferior criminal authority with respect to a proceeding by a superior authority."

In another case Queen‑Empress v. Jahandi reported in the same Volume at page 249 Macpherson and Bannerji, JJ., held that the District Magistrate under section 438 of the Criminal Procedure Code could not make a reference against the order passed by the Sessions Court. In Emperor v. Jamna Bai (I L R 28 All. 91) Bannerji and Richards, JJ., observed as under:

"We do not think that the legislature by using the words "or otherwise" in section 438 intended to confer upon a Magistrate the power to question the property of an order of a Sessions Court and make a reference to this Court upon that ground. We agree with the learned Judges of the Calcutta High Court who decided the case of Queen‑Empress v. Jahandi that "it would be contrary to every principle to allow a District Magistrate to report against an order of the Sessions Court to which he is subordinate."

It has been held in the cases of Emperor v. Khuda Bux and another (A I R 1927 Sind 45), Emperor v. Allah Mahr and others (A I R 1927 All. 279) and Emperor v. Ishar Singh (A I R 1927 Lah. 85) that the District Magistrate being subordinate to the Session's Judge could not make a reference to the High Court under section 438, Cr. P. C. In this connection I would like to refer to the observations made by Heaton, J., sitting with Beaman, J. in Emperor v. John Francis Lobo (A I R 1916 Bom. 158). The observa tions are as under:

"We are quite satisfied from a perusal of . sections 435, 437 ' and 438, Cr. P. C. that the Code emphatically does not contemplate a reference of this kind. I only add that if we have to encourage references of this kind, it would open up an alarming vista of undesirable possibilities." This was a reference by the District Magistrate against the order passed by the Sessions Judge. The observations made in the following cases: ‑

In re Angamuthu Vanatherian 13 Cr. L J 714.

Emperor v. Maung Myat E A I R 1931 Rang. 251 and

Emperor v. Baynath Prasad and another A I R 1933 Pat. 605

would lend support to the contention that the District Magistrate cannot make a reference against an order passed by the Sessions Judge.

The power of the High Court under section 439 to interfere with an order passed by the Sessions Judge when a matter comes to its knowledge, whatever the source may be, cannot be doubted. The circumstances of the present case however are not such in which I would like to interfere under my revisional power. The learned Sessions Judge while granting the bail was not aware that any order under section 117 (3), Cr. P. C. had been passed by the Sub‑Divisional Magistrate. In fact, the learned A. P. P. conceded before him that no such order had been passed by the S. D. M. Moreover, a revision has been filed by the respondents before the learned Sessions Judge against the order passed by the learned S. D. M. under section 117 (3). The learned Sessions Judge would be quite competent to grant bail pending the revision to the respondents.

Before disposing of this matter I may point out as to the course open to the District Magistrate in these circumstances. A District Magistrate who considers that there has been a mis carriage of justice in the Court of Sessions should not report the case to the High Court for orders under section 436, Cr. P. C. but should communicate with the Public Prosecutor and invite his assistance to move the High Court. In this connection reliance may be placed on Queen‑Empress v. Shere Singh (I L R 9 All. 362).

For the reasons given above the reference is rejected.

K. M. A. Reference rejected.

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