1945 (4) TMI 20 - Other - Indian Laws

Summary

Issues:
1. Interpretation and effect of Section 256, Constitution Act regarding the appointment of a Magistrate.
2. Whether non-compliance with Section 256 renders an appointment ineffective.
3. Competency of the appeal based on the nature of the order from the High Court.

Detailed Analysis:
1. The appellant, along with others, was being tried for hoarding and profiteering. The appellant sought transfer of the case based on irregularity in the Magistrate's appointment, not consulting the Chief Presidency Magistrate as required by Section 256. The court clarified that consultation under Section 256 is with the District Magistrate where the person works when the recommendation is made or with the Chief Presidency Magistrate if working under them. As the Magistrate's services were borrowed from another province, consultation with the District Magistrate of that province was necessary, which was not shown to be lacking. Thus, the appointment was deemed valid.

2. The court held that Section 256's direction is directory, not mandatory. Non-compliance does not invalidate an otherwise regular appointment. The court reasoned that a strict interpretation could lead to unintended consequences and injustice to individuals not involved in the appointment process. Citing precedent, the court emphasized the practicality of this approach to avoid general inconvenience.

3. The Crown raised a preliminary objection on the appeal's competency, arguing that the High Court's order was not a final judgment under Section 205. While referring to previous cases, the court did not delve into this objection due to the dismissal of the appeal on its merits. No other issues were raised, leading to the dismissal of the appeal.

In conclusion, the judgment clarified the consultation requirement under Section 256, emphasizing its directory nature and the validity of appointments despite non-compliance. The appeal was dismissed based on the lack of merit, without addressing the preliminary objection regarding the nature of the High Court's order.