Excerpt
criminal procedure code (act v of 1898), section 438 - illegality of sessions judge's order--district magistrate's power to report to high court. - ordermiller, j.1. it has been held by all the high courts that section 438 of the criminal procedure code does not warrant a district magistrate in reporting to the high court the proceedings of a court of session. vide emperor v. jamna bai 2 cri.l.j. 515 and queen-empress v. karamdi 23 c.k 250. there is an unreported case in the bombay high court to the same effect and in this court: high court proceedings, dated 21st september 1895, no. 443.2. there is no material difference between the words of section 438 in the present code and those of the same section in the former code of 1882.3. the district magistrate, if he considers the sessions judge's order illegal, should move the public prosecutor to bring it before this court.
Full Judgment
ORDER
Miller, J.
1. It has been held by all the High Courts that Section 438 of the Criminal Procedure Code does not warrant a District Magistrate in reporting to the High Court the proceedings of a Court of Session. Vide Emperor v. Jamna Bai 2 Cri.L.J. 515 and Queen-Empress v. Karamdi 23 C.k 250. There is an unreported case in the Bombay High Court to the same effect and in this Court: High Court Proceedings, dated 21st September 1895, No. 443.
2. There is no material difference between the words of Section 438 in the present Code and those of the same section in the former Code of 1882.
3. The District Magistrate, if he considers the Sessions Judge's order illegal, should move the Public Prosecutor to bring it before this Court.