Ewart Greaves, J.@mdashOn the 13th November last the Secretary of the Nawab of Murshidabad complained to, the Additional Chief
Presidency Magistrate of criminal breach of trust by one Punam Chand Sethia in respect of certain jewellery,
2. The Additional Chief Presidency Magistrate took cognizance of the offence and after examining the complainant directed the Police to enquire
and report.
3. On the matter coming back to the Additional Chief Presidency Magistrate a judicial enquiry was asked for by the complainant and the
Additional Chief Presidency Magistrate there upon transferred the case for disposal to the Fourth Presidency Magistrate.. This Magistrate after
examining witnesses ordered the issue of summons against Punam Chand Sethia on the 19th January 1924. On the 28th January Punam Chand
applied to the Chief Presidency Magistrate asking, on the ground of jurisdiction, that the case should be re-called to his file and that the trial should
take place in his Court. The Chief Presidency Magistrate, having ascertained that the Fourth Presidency'' Magistrate had no objection, on the 30th
January withdrew the case from the file of the Fourth Presidency Magistrate and transferred it. to his own file u/s 528 of the Code of Criminal
Procedure. It is said that the Chief Presidency Magistrate had no power to make this order and hence this Rule.
4. Section 18 (4) of the Criminal Procedure Code empowers the Local Government to appoint an Additional Chief Presidency Magistrate and
provides that he shall have all or any of the powers of a Chief Presidency Magistrate under the Criminal Procedure Code as the Local
Government may direct. Section 21 (2) of the same Code empowers the Local Government to declare and define his subordination to the Chief
Presidency Magistrate and the extent thereof.
5. By Notification No. 6786-J dated the 23rd October 1923 the Local Government appointed Mr. Das Gupta as Additional Chief Presidency
Magistrate and authorised him to exercise the powers of a Chief Presidency Magistrate therein mentioned including the power u/s 528 to withdraw
cases. He was not given the power of recalling cases.
6. By a Notification No. 6787-J of the same date the Local Government in exercise of the powers conferred by Section 21 (2) of the Criminal
Procedure -Code declared the Additional Chief Presidency Magistrate to be subordinate to the Chief Presidency Magistrate. On behalf of the
petitioner it is said that the Chief Presidency Magistrate had no jurisdiction to make the order as the case had been transferred by the Additional
Chief Presidency Magistrate and that inasmuch as he had not been given the power to recall a case to his own file, which he had once transferred,
the order could only have been made by this Court. On behalf of the accused it is said that the Chief Presidency Magistrate has made an order
withdrawing the case to his own file and that he has power to make such order. We were referred to Section 17 of the Code of Criminal
Procedure which makes Magistrates subordinate to the District Magistrate and to Section 21, of the same Code which by Sub-section (d) confers
on the Chief Presidency Magistrate the same powers as given to a District Magistrate by Section 17.
7. It is said that a District Magistrate could have made the order, in question and that, therefore, the Chief Presidency Magistrate can make the
order and we were referred to Raghunatha Pandaram v. Emperor 26 M. 130 : 2 Weir 689. It was there held by Mr. Justice Bashyam Ayyangar
that a District Magistrate had no power to cancel an order made by a Sub-Divisional Magistrate directing the transfer u/s 528, Criminal Procedure
Code, of a case from the file of one Sub-Divisional Magistrate to that of another Sub-Divisional Magistrate and to direct the re-transfer of the case
to the file of the Sub-Divisional Magistrate from whom it was transferred as in the matter of transfer u/s 528, Criminal Procedure Code, the District
Magistrate and the Sub-Divisional Magistrate had co-ordinate authority over. Magistrates subordinate to the Sub-Divisional Magistrate and that
his order cannot be appealed against to the District Magistrate. The learned Judge at page 132, however adds this remark ""It may be that u/s 528
a case once transferred from one Magistrate to another may be withdrawn from the latter by the District Magistrate or even by the Sub-Divisional
Magistrate and that he may inquire into or try such case himself or refer it for enquiry or trial to some other competent Magistrate on a substantive
application that it is inexpedient that the Magistrate to whom it had been transferred or his successor-in-office should enquire into or try the case.
8. The case in Raghunatha Pandaram v. Emperor 26 M. 130 : 2 Weir 689 was dissented from by a Division Bench of the Madras High Court in
Santhappa Setharam v. Govindaswamy Kandiyar 38 Ind. Cas. 447 : 40 M. 791 : 5 L.W. 501 : 21 M.L.T. 281 : 18 Cr.L.J. 335 who followed
and approved Thaman Chetti v. Alagiri Chetti 14 M. 399 : 2 Weir 688 : 5 Ind. Dec. (N.S.) 280 where it was held that a Magistrate who is
subordinate to a Sub-Divisional Magistrate is also subordinate to the District Magistrate within the meaning of Section 528 and that Section 17,
Criminal Procedure Code, which declares such Magistrate to be subject only to the general control of the District Magistrate cannot be so
construed as to take away the special power conferred by Section 528.
9. In that case a Joint Magistrate transferred a complaint from a Second Class Magistrate to a Taluk Magistrate and the District Magistrate
transferred it back.
10. I think the principles of this case with which I respectfully agree apply to the case before us.
11. The Additional Chief Presidency Magistrate is subordinate to the Chief Presidency Magistrate and I think the Chief Presidency Magistrate had
power u/s 528, Criminal Procedure Code, to make the order which he did withdrawing the case to his file.
12. We have not considered the order on its merits as the matter was not argued before us on those lines and our decision relates only to the
power of the Chief Presidency Magistrate to make the order which he has mads. I would discharge the Rule.
Duval, J.
13. I concur.