Queen-Empress vs R. Hawthorne

Straight, J.—I entirely concur with the learned Sessions Judge that the District Magistrate must be regarded as having taken cognizance of the case under cl. (c) of s. 191 of the Code of Criminal Procedure. It is patent from the record that there was no "complaint" or "police report," in the well-understood sense of the Code, and it is difficult to understand how the District Magistrate could even have brought himself to think that there was. It is clear to my mind that the process was really issued by him upon his personal knowledge and suspicion that an offence against Act XXV of 1867 had been committed. For this no possible fault can be found with him. On the contrary, it was his imperative duty to see that the provisions of a very salutary Act were complied with and if they had been disobeyed that the offender should be punished. But the District Magistrate having, as I have no doubt he did, taken cognizance under cl. (c) of s. 191, he had no option or alternative but to grant the application of the accused to send the case to the Court of Sessions or transfer it for trial to another District Magistrate, The words "shall be entitled to require" are mandatory, and he could not refuse to comply with them. It therefore becomes unnecessary to examine the reasons given by him in his order of the 3rd October, though I may say I quite agree with the learned Judge that there is nothing in chapter XVIII of the Code which excludes or overrules the provisions of s. 191, cl. (c). That being so, the District Magistrate was, in my opinion, without jurisdiction and was not a "Court of competent jurisdiction," the error or defect in whose procedure could be cured by s. 537. In this respect, therefore, I differ with the learned Sessions Judge and am unable to sustain the District Magistrate''s proceedings. Moreover, I am constrained to remark that it is impossible, upon a perusal of all that took place prior to the case being launched, not to feel that the Magistrate had a "personal interest" in the proceedings, and I must most emphatically express myself as to the impropriety and irregularity of the examination to which the accused was subjected on the 23rd August. The case was a warrant case and not a particle of evidence had been recorded, so that the power given by s. 312 of the Code to examine an accused "for the purpose of enabling him to explain any circumstance appearing in the evidence against him" had not come into play, A Magistrate has no right, in such a way as was adopted here, to elicit damaging or incriminating admissions from a person against whom he has issued process, for the purpose of afterwards treating them as evidence in the case, and chapter XXI of the Code gives no countenance to any such procedure. The impression left upon my mind upon a perusal of all the papers, is that the case was tried in too much of a storm, and that from the beginning to the end the Magistrate lost eight of the fact that one of the not the least important incidents in the administration of criminal justice "is to clear away everything which might engender suspicion and distrust of the tribunal, and to promote the feeling of confidence in the administration of justice which is so essential to social order and security" Sergeant v. Dale L.R. 2 Q.B.D. 588. It is, however, unnecessary for me to enter at large into the proceedings of the trial, being of opinion, as I am, that the accused having claimed his right under the last clause of s. 191 of the Code, the jurisdiction of the Magistrate was ousted. I quash the conviction and fines in all Courts, and having regard to all that has taken place, I think no further action should be ordered by me or adopted by the local authorities. Any money that has been realised as fine should be refunded.