In Re: Parbhu Narayan Sing

Loch, J.—The question that has been raised before me is whether, from an order of a Magistrate dismissing a ministerial officer in his establishment, an appeal lies to the Commissioner of the district or to the High Court. To determine this point, we need to go back to the old laws on the subject, as we find that under the provisions of section 15, Regulation V of 1804, native officers employed in the several Courts of judicature, civil and criminal, or under any public officer, subject to the authority of the Courts of Sudder Dewanny Adawlut and Nizamut Adawlut, whose salary or other allowance may amount to rupees 10 per mensem or upwards, and whose appointment and removal may not have been reserved to the Governor-General in Council, shall not be removed from their respective offices without the sanction of the Court of Sudder Dewanny Adawlut or Nizamut Adawlut.

By the provisions of clause 1, section 7, Regulation VIII of 1809, the authority to confirm the appointment, removal and resignation of the principal ministerial native officers of the Zilla and City Judges and Magistrates, as well as of the record-keepers, and the whole of the native officers of Zilla Courts, civil and criminal, receiving a salary of rupees 10 per mensem or upwards, was vested in the Principal Courts of Appeal and Circuit.

By clause 1, section 3, Regulation I of 1829 (which Regulation constituted Commissioners of Revenue and Circuit, and by which the Provincial Courts of Appeal and Circuit were abolished), the said Commissioners possessed and exercised, each within the cities and districts comprised in the division placed under his authority, all the powers that were legally exercised by the Judges of Circuit, when holding the Sessions of Jail delivery, or by the Courts of Circuit collectively. And by section 7 of the same law, the offices of Superintendents of Police in the Lower and Western Provinces were abolished, and the Commissioners of Revenue and Circuit were authorized to exercise all the powers belonging to the Superintendents of Police within their respective divisions.

Under the powers conferred on the Commissioners by clause 1, section 3, Regulation I of 1829, viz., the powers of the Court of Circuit collectively, the removal of officers in the Criminal Department was subject to their authority; and it continued to be so until the enactment of the provisions of Act XXIV of 1837. By that law it was enacted that whenever a Superintendent of Police should be appointed under the Act, such parte of section 7, Regulation I of 1829 of the Bengal Code, as vested the Commissioners of Revenue and Circuit with the duties and powers belonging to the Superintendent of Police, should cease to have effect in the territories which might be comprised within the jurisdiction of such Superintendent. And by section 4 of the same Act, the powers exercised by the Commissioners of Circuit in virtue of the authority vested in them by section 3, Regulation I of 1829 of the Bengal Code, in regard to the appointment, suspension, and removal of any ministerial or police officer subordinate to any Zilla and City Magistrate, or Joint Magistrate, were vested in the Superintendent of Police. And by section 6 of that Act, the order of the Superintendent of Police was not open to revision by the Nizamut Adawlut. Act XXIV of 1837 continued in force until Act VIII of 1868, called "The Repealing Act," was passed, when it, with other laws, was repealed.

It has been argued that as Act XXIV of 1837 has been repealed, and as the same Act has virtually superseded the provisions of sections 3 and 7, Regulation I of 1829, therefore the only law now in force with regard to the appointment and removal of ministerial officers is the old law, section 15, Regulation V of 1804. This however is a mistake. Neither section 3, nor section 7, of Regulation I of 1829 has been repealed. They have been modified so as to suit circumstances. For instance, with regard to the holding of Sessions by Regulation VII of 1831, the provisions of Regulation I of 1829 were so far modified as permitted the Government to allow the Judges of districts to hold the Sessions and try all cases committed to them by the Magistrates within their districts. So also with regard to the provisions of Act XXIV of 1837. It does nowhere repeal any part of Regulation I of 1829, but merely says that where a Superintendent of Police is appointed, the powers held by the Commissioners of Revenue and Circuit as Superintendent of Police shall cease to have effect. When that law is itself repealed, all the powers that were exercised by the Superintendent of Police must, in the absence of any other law directing the contrary, revert to the Commissioners of Circuit, who are still in existence, and who still, under the powers given to them by Regulation I of 1829, have power of Courts of Circuit.

Looking therefore at the laws mentioned above, it appears to me that there can, be no doubt that the Commissioners of Revenue and Circuit were vested with all the powers of the Courts of Circuit; that among other powers they held that of confirming the appointment and dismissal of the officers of the Magistrate''s office; and that as Act XXIV of 1837, by which their authority in this respect had for a time been vested in the Superintendent of Police, has been repealed, they have again become vested with that authority; and consequently the Commissioner is the proper authority to whom an appeal lies from an order of a Magistrate dismissing a ministerial officer from his post, and the order of the Commissioner passed in appeal is final. Under this view of the case, I reject this application.