ORDER
1. These rules are for the transfer of two cases at present being tried by Mr. Md. Safi Khan, Additional Presidency Magistrate. The petitioner is one of seven accused who are being tried in both the cases. A previous application to the Chief Presidency Magistrate under 3.528, Criminal P. C, has been rejected by him. Mr. Probodh Chandra Chatterjee appears on behalf of Sew Chand Roy and Bhagwandas Bajoria, two of the other accused persons and states that he sup. ports the petitioner. No one appears for the remaining accused.
2. Originally on 26th February 1944 a challan was submitted by the police against the seven accused for offences of hoarding on three counts and profiteering on three counts, offences under Rule 81(4), Defence of India Rules. The cases were eventually transferred on 29th April 1944 to Mr. Md. Safi Khan for disposal and on 11th May the trial began. According to the petitioner the Public Prosecutor on 11th May stated that he would proceed only on the charge of profiteering and that he would make a statement later on so far as the hoarding charge is concerned. We note that in the petition to the Chief Presidency Magistrate the petitioner alleged that the Public Prosecutor had stated that he abandoned the case of hoarding, and in an explanation submitted by the Public Prosecutor to the Chief Presidency Magistrate he corrected this and the petitioner apparently has accepted the correction and has framed his present petition accordingly. So far as the record shows all we have is that on 22nd July 1944 Mr. Md. Safi Khan recorded an order noting that in the police report the accused persons were also charged with hoarding and that the Public Prosecutor had been ordered to give the names of the prosecution witnesses in the case by 24th July. On that date there was an order that the investigating officer had been heard and the case was to be put up on 29th July. On the latter date there is an order that the Public Prosecutor stated that he would not conduct the case, the police prosecutor would take charge of it and the case was adjourned to 9th August. On that day the petitioner filed his petition under Section 528, Criminal P. C. By 22nd July the other case of profiteering had proceeded to this stage when the charge had been framed and the cross-examination of witnesses had commenced. According to the explanation of the trial Magistrate submitted to the Chief Presidency Magistrate ho only discovered after evidence on the three counts of profiteering only had been led, and at a late stage, that there were also three counts of profiteering (hoarding sic) in the charge and he accordingly asked the Public Prosecutor either to lead evidence in the charge of hoarding or to withdraw that charge. He gave the Public Prosecutor time to consider the point. But the latter then and there stated that he would withdraw the charge later on if necessary. The Magistrate, however, started a separate case of profiteering (hoarding sic) against the accused on 9th August and a separate challan was submitted on these charges. According to the petition the Public Prosecutor said on 22nd July that he would not take the responsibility of proceeding with the hoarding case, that he would retire from it and that thereupon the Magistrate said he would proceed on his own responsibility. The Magistrate asked the Public Prosecutor to let him have a list of witnesses whereupon the Public Prosecutor referred the Court to the investigating officer whose duty it was to submit the list of witnesses. Similar statements appear in the petition to the Chief Presidency Magistrate and have not been controverted by the Public Prosecutor in his explanation.
3. It will be seen that there is a discrepancy between the version given by the petitioner and supported by the Public Prosecutor, and that given by the learned Magistrate as to the question whether the Magistrate’s attention was drawn to the hoarding charges and whether anything was said at the earlier stage when the case was opened on nth May on this subject. It may well be that both versions are correct, and either the Magistrate happened not to hear the Public Prosecutor’s statement on the point or he had forgotten it in July. We certainly accept the Magistrate’s statement that so far as he was concerned he thought on 22nd July that this was the first time that it came to his notice. This difference perhaps may be some explanation of the rather unusual, not to say disrespectful, conduct of the Public Prosecutor in the matter. According to the petitioner the Public Prosecutor on 22nd July stated that the materials at his disposal were in his opinion not enough and that was why he was not proceeding with the case of hoarding. The Public Prosecutor apparently was of opinion that he was the final Judge of the matter whether the case should proceed or not. The Magistrate in his explanation says that he asked the Public Prosecutor either to lead evidence in the charge of hoarding or to withdraw the charge. It is quite clear that the Magistrate was correct and that the Public Prosecutor had only three courses open to him, either to proceed with the case, or to ask for permission to withdraw, or possibly to suggest that in view of the fact that if the case of profiteering succeeded it might not be really necessary to continue the other, the hoarding case might be kept pending till a later stage. He certainly, however, had no right to attempt to force the Court to accept his view and to drop the hoarding case and apparently to discharge the accused. It is the Court which takes the responsibility of deciding whether a charge should be allowed to be withdrawn or not. When a Public Prosecutor asks that a case be withdrawn on the ground that the evidence is insufficient, and that permission is refused, it is obviously his duty to place the evidence before the Court even though he may consider it to be insufficient to support the charges. He is quite at liberty in presenting the evidence to adhere to his view and to express it to the Court, but it is certainly not correct conduct for him to decline any so-called responsibility, to refuse to assist the Court, and least of all to refuse to supply even the list of witnesses. As is pointed out by the learned advocate appearing now for the Crown in this case, the statement of the Public Prosecutor that he had not the list of witnesses is not very consistent with his statement that the evidence at his disposal was not sufficient to support the charges. He could not be in a position to express any opinion on the evidence in the case, unless he knew who were the witnesses who were going to give it. In our opinion there has been something of storm in a tea cup over a comparatively trivial matter, and had the Public Prosecutor acted correctly, there could have been no further trouble in the matter. The Magistrate in not accepting the ipse dixit of the Public Prosecutor as to the value of the evidence in the case was acting entirely properly and in the exercise of his discretion as required by Section 494, Criminal P. C, and nothing he has done in this respect could form any justifiable or reasonable ground for the accused to consider that he could not get a fair and impartial trial before the Magistrate. It is obvious on the materials that nothing has been shown to us as showing any real bias on the part of the Magistrate, and in our opinion nothing has been shown which would justify any reasonable person, properly advised to what the law is, to imagine that there was any such bias. We think that there is no ground whatever, therefore, for transferring either of the cases from the file of the present Magistrate. We would however remark that in our opinion the Magistrate would have been well advised to have kept the hoarding case pending in view of the fact that no action had been taken between May and 22nd July and that it might be proper to consider whether to proceed with the case of hoarding before the result of the profiteering case had been ascertained. This is entirely apart from any question as to whether the Public Prosecutor’s view of the value of the materials at the disposal of the prosecution in the hoarding case, is correct or not.
4. Mr. Chatterjee has also raised a point that Mr. Md. Shafi Khan has not been regularly appointed as a Presidency Magistrate in view of the provisions of Section 256, Government of India Act, in that the Chief Presidency Magistrate had not been consulted when Mr. Khan was appointed a Presidency Magistrate. Mr. Chaterjee was able to point to the judgment of the Chief Presidency Magistrate in the Section 528 matter for material in support of his statement that the Chief Presidency Magistrate was not consulted. For our present purpose it is not necessary to consider whether this is sufficient evidence to support Mr. Chatterjee’s point. The learned Chief Presidency Magistrate himself disposed of this point by holding that the words ‘in which he is working’ in that section make it clear that the proper construction to be applied is that if some person already working under a District Magistrate or a Chief Presidency Magistrate is to be granted magisterial powers for the first time or to be granted enhanced magisterial powers, then only consultation is necessary. This interpretation is not without. difficulty. This would apparently mean that when a person who is not working under a District Magistrate or a Chief Presidency Magistrate is given magisterial powers. nobody need be consulted. Another possible interpretation is that when a person who is working, say in District A, is transferred to District B or appointed as a Presidency Magistrate, the District Magistrate of District A is to be consulted before the order is made. A third possible construction is that when any person is to be given magisterial powers in any district or enhanced magisterial powers in any district, then the District Magistrate of that district is to be consulted, or if the appointment is in the Presidency town, then the Chief Presidency Magistrate is to be consulted. The difficulty as regards the latter construction certainly is to give effect to the words ‘in which he is working’. We find it not necessary to express any opinion as to which of these interpretations is a correct one. It is contended by Mr. Chatterjee that the requirement of Section 256, Government of India Act, that no recommendation shall be made for the grant of magisterial powers save after consultation with the District Magistrate is mandatory, and its fulfilment a condition precedent to the granting of such powers, and any order granting such powers made without such consultation will not confer the powers, and therefore in the present case, accepting the statement of the Chief Presidency Magistrate that no such consultation was made, Mr. Md. Shafi Khan has no powers as a Presidency Magistrate. We are unable to accept this interpretation of the section as going to the root of the jurisdiction of the person appointed when there is some irregularity in the procedure of appointment. In our opinion the provision requiring consultation is directory, it has all the force of a provision in the Constitution Act, is one proper to be followed, though as we have shown, it is extremely difficult to know exactly how the provision is to be followed, but nevertheless we do not think that it was intended or has the effect that an appointment made with some flaw in the procedure as laid down shall be invalid. These rules are accordingly discharged Certificate under Section 205, Government of India Act, is granted.
Ormond J.
6. I agree with the decision and reasons of the Chief Presidency Magistrate in refusing the application for the transfer in both these cases. Regarding Section 256, Government of India Act, the scope of this section is, as has been observed by my learned brother, not very clear. For one thing it is not completely clear, with whom the consultation is to be made, whether with an officer in the District from which the subordinate criminal Magistrate is being brought or with an officer in the district to which he is being appointed. In view of the words ‘in which he is working,’ and of the fact that the section related to the time when the recommendation is being made, and not to any time when the appointment either has been or is being made, speaking for myself, I should be inclined to hold that on the wording of the section it refers to consultation with an officer in the district from which the subordinate criminal Magistrate is coming. Of course in that event it might be found that the section had no application in the appointment of an honorary Magistrate or of a person to be a Magistrate who at the time when the recommendation was being made was not working anywhere. If this section requires consultation with an officer in the district from which the Magistrate being appointed comes, then of course, we are in the position of having no evidence at all before us as to whether the requisite consultation has been made or not. There would be no legal presumption of its having been duly made. It is to be empha sised in my view that the section relates solely to the time when recommendations are being made. It does not speak at all of the appointment of the Magistrate, nor does it deal with any effect on the appointment if the requisite consultation at the time of recommendation is not made. In view of this I entirely agree with my learned brother that even where an appointment may have been made without the requisite consultation, there is no direction contained in the section that that appointment is to be null and void or that the Magistrate so appointed is to be held to have no jurisdiction, since the section does not affect the making of the appointment as such at all. It must in my view be taken that once an appointment has been effected by the person in power to make the appointment, that Magistrate will have the requisite jurisdiction. It is not for us to be concerned, for the purpose of this application, with any administrative question as to whether any person, who should have been consulted, might desire to take up the matter of the want of consultation with the authority which should have consulted him. Speaking for my-self, I should in any event wish to be completely satisfied of a definite failure to implement the provisions of this section and to have full materials before us of the nature and manner of his appointment which cannot be before us on a mere application for transfer of this nature before I were to come to the drastic decision that a Magistrate in the position of an Additional Presidency Magistrate had no jurisdiction; and had had none since his assumption of office.
