Full Judgment
Mitra and Caspersz, JJ.
1. These Rules were issued on two grounds: first, that no reason was stated by the District Magistrate for the withdrawal of the oases from the Subdivisional Magistrate's file; and, second, that the Additional District Magistrate to whom the cases were referred was not subordinate to the District Magistrate.
2. As regards the first ground, it is incumbent on the officer empowered to transfer a case from one Court to another to record his reasons for so doing when lie directs a transfer. Section 528, Sub-section (3) of the Code of Criminal Procedure says:--'A Magistrate making an order under this section shall record in writing his reasons for making the same,' In these cases, no reasons are recorded, and the District Magistrate, in his explanation, says that he was wrong in not recording any reasons. But, after all, it was only an irregularity. The mistake was not such as would alone induce us to say that the order was erroneous. It is only when an order made by a Magistrate is otherwise prejudicial to the accused that we insist upon the formalities prescribed by the sub-sections being strictly observed. We are, therefore, of opinion that this ground is not a material one for setting aside, the order made by the District Magistrate.
3. Our decision on the second ground must rest on the language of the sections regarding the powers of Additional District Magistrates and those of District Magistrates. Section 10, Sub-section (2) of the Code of Criminal Procedure says:--'The Local Government may appoint any Magistrate of the first class to be an Additional District Magistrate for a period not exceeding six months, and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code as the Local Government may direct.' It appears from a notification in the Eastern Bengal and Assam Gazette, dated the 27th April 1907, that the Additional District Magistrate, Mr. Garlick, has teen vested by the Local Government with all the powers of a District Magistrate. Section 12 of the Code deals with the subordination of Magistrates. It does not, however, make an Additional District Magistrate appointed under Sub-section (2) of Section 10 subordinate to the District Magistrate. The Code does not define the relations between a District Magistrate and an Additional District Magistrate. Section 528 of the Code empowers a District Magistrate to withdraw any case from or recall any case which has been made over to any Magistrate subordinate to him and he may enquire into or try such case himself or refer it for enquiry or trial to any other such Magistrate, that is, subordinate Magistrate, competent to enquire into and try the same. Reading these sections together, it would appear that the District Magistrate of Mymensingh had no power under Section 528 of the Code of Criminal Procedure to transfer the cases, which were taken cognizance of by the subdivisional Magistrate] of Jamalpore, to the Additional District Magistrate.
4. As a matter of fact, however, the transfer has been made and Mr. Garlick, as Additional District Magistrate, has taken cognizance of the cases. The first cognizance was, however, taken by another Magistrate. The order of the District Magistrate transferring these cases cannot be supported in law.
5. The District Magistrate has, however, asked us to make an order ourselves, and he has given reasons why we should make an order ourselves, and direct Mr. Garlick to try the cases. We are of opinion that, notwithstanding that the order of the District Magistrate cannot be supported on an interpretation of the various sections of the Code, we ought to direct that the cases be tried by Mr. Garlick at Jamalpore. He is a Magistrate with the fullest powers, and there is no reason why the cases should be transferred from his file to that of any other Magistrate. In fact, Mr. Garlick himself could have directed the transfer of the oases from the file of the Subdivisional Magistrate of Jamalpore to his own file: he had full power to do so. Notwithstanding the irregularity of the order made by the District Magistrate, we think there is no substantial ground for our coming to any other conclusion than that Mr. Garlick should try the cases at Jamalpore.
6. Suggestions have been made in the petitions before as regards the impropriety of Mr. Garlick trying these eases. We are quite sure that Mr. Garlick will not fail to do full justice and that he will try these cases with an unbiassed mind. Any apprehension to the contrary seems to us to be without any foundation. One of these cases is under Section 107 of the Code of Procedure; the other involves only a preliminary inquiry before commitment to the Sessions Court, if a prima facie case is made out. We, accordingly, direct that the cases be tried or enquired into by Mr. Garlick at Jamalpore.