Sailendra Nath Chakerverty and Others vs Emperor

Adami, J.—It appears that following the discovery of certain weapons and literature at Deoghar, and following an investigation, a complaint was made before the Sub-divisional Officer of Deoghar on behalf of the Crown, charging the present ten petitioners and some others with offences under Sections 121-A, 120-B, 395 and 302, I.P.C. and Section 20, Arms Act. The Deputy Commissioner of the Santal Pargannas took over the case from the Sub-divisional Officer and thereafter transferred the inquiry to a Special Magistrate, Mr. A.K. Bose at Dumka. The 3rd January was fixed for the hearing at Dumka. On that date, after the learned counsel for the Crown had opened the case, an adjournment was asked for on the ground that the petitioners desired a transfer of the case. An adjournment was accordingly granted, and now the petitioners come before this Court asking that the case may be transferred from Dumka, on the ground that Dumka is inaccessible and very inconvenient for the lawyers and friends of the petitioners.

The question arises at once whether this Court has any jurisdiction to pass an order of transfer in this case. u/s 4, Clause (1), of the Santal Pargannas Justice Regulation of 1893, in the Santal Pargannas the words "High Court" mean, firstly, in reference to proceedings against European British subjects or persons jointly charged with European British subjects, the High Court of Patna, and in reference to proceedings against other persons:

(a) in cases tried by the Court of Session and in appeals u/s 417 from original or appellate orders of acquittal the High Court of Patna; and

(b) in other cases, the Commissioner.

It is clear from this that, during the stage of inquiry the High Court of Patna has no jurisdiction, for, according to the section I have cited, it is only in cases tried by the Court of Sessions and in appeals under S. 417, that this Court has any jurisdiction. In the case of inquiries and trials before the Deputy Magistrate in the Santal Pargannas the Commissioner of Bhagalpur is the High Court. The question of jurisdiction has been considered from the point of view of a revisional application for a reversal of an order of acquittal lodged by a private person in the case of Anwar Ali Vs. Chairman, Deogar Municipality, . The position of this Court with regard to cases arising out of the Santal Pargannas was discussed and it was held that, where an application in revision to set aside an order of acquittal passed by a Subordinate Magistrate is lodged before this Court by a private person, this Court has no jurisdiction. In the present case we have to decide whether this Court can be approached, during the inquiry by a Deputy Magistrate prior to commitment to Sessions, to interfere by way of ordering a transfer, and we are quite decided that this Court has no such jurisdiction, for the words of the regulation are quite plain. It is only when the case has actually come before the Sessions Judge that this Court can interfere.

Mr. Nandkeolyar has argued before us that, since in cases u/s 417, this Court is the High Court for the purpose of that section, therefore this Court has jurisdiction in the Santal Pargannas and can interfere in all cases, since, as he argues, if this Court has u/s 417 power to set aside an acquittal by any criminal Court in the Santal Pargannas, it must have a measure of superintendence over those Courts and cannot be said to be without jurisdiction in the Santal Pargannas. I cannot support this argument; for it is quite clear from the words of the regulation that it is only in cases where Government appeals against an acquittal that this Court can have jurisdiction. The criminal Courts in the Santal Pargannas, other than the Sessions Court, are not within the jurisdiction of this Court.

Mr. Nandkeolyar has also pointed out that, if it is held that the Commissioner of Bhagalpur is the High Court for the purpose of the present case, the petitioners will not be able to obtain what they desire, namely, a transfer of the case to a district outside the Santal Pargannas. It is quite true that the Commissioner as a High Court would not be able to transfer the case out of the Santal Pargannas, but wo must take the law as it stands, and the law allows an application for a transfer of a case other than a case before the Sessions Judge to be made only to the Commissioner of Bhagalpur, as the High Court for the Santal Pargannas and does not allow this Court to interfere.

Mr. Nandkeolyar has further referred us to paras. 17 and 22 of the Letter Patent of this Court. His point is that para. 17 gives this Court criminal jurisdiction over all persons residing in places within the jurisdiction of any Court subject to its superintendence, and therefore all criminal Courts in the Santal Pargannas are subject to the superintendence of this Court, since all those Courts are within the jurisdiction of the Sessions Judge who is subject to the superintendence of this Court. That is not the meaning of that paragraph. The Letters Patent must ha read subject to the special legislation in the form of Reagulation 5 of 1893, which declares that the Courts other than the Sessions Court are not Subordinate to this Court as their High Court. As to para. 22 it is argued that, the inquiry Court being a criminal Court therefore that paragraph which gives the High Court of Patna power to direct the transfer of a criminal case in any criminal Court, empowers this Court to order the transfer of the present case. Now para. 22 has to be read subject to the regulation. It is clearly laid dawn in para. 30 of the Letters Patent that effect must be given to the special law embodied in Regulation 5 of 1893.

It is not necessary, I think, to go further into the arguments put before us seeing that it is so plain, on the language of the Regulation, that this Court cannot, while the case is still in the state of inquiry, interfere by way of ordering a transfer. The application must be rejected.

Macpherson, J.

I agree.