MUHAMMAD Vs. EMPEROR

JUDGEMENT

(1.) This is an application to revise the conviction of the petitioner under Section 81(4) of the Defence of India Rules and the sentence passed on him of imprisonment for three months and a fine of Rs. 200 on conviction by a Magistrate of the second class which was affirmed and the sentence maintained on appeal by the Additional District Magistrate of Cuttack. The facts alleged against him were that on 16 June 1942, he sold 17 md. 25 srs. of grain known as biri at a price 7- 3/16 srs. to tho rupee whereas the local controller had by an order fixed the price of this article at 8 1/2 seers per rupee. In the form in which Sub-rule (i) of Rule 81 of the Defence of India Rules stood until 18 July 1942, it was not an offence to contravene an order made under the rule as held in Jagabondhu Sahu V/s. Emperor Cri. Revn. No. 113 of 1942, decided on 10 December 1942. The act of the petitioner was not an offence in law.

(2.) But, in this case, there is a new feature. The petitioner is said to have pleaded guilty and the appellate Court observed that the appeal lay to him on the question of sentence only and not on the merits. The answer to that is that the Additional District Magistrate was perhaps refering to Section 412, Criminal P.C., which enacts that there shall bo no appeal except as to the extent or legality of the sentence where an accused person has pleaded guilty and has been convicted by a Court of Session or any Presidency Magistrate or Magistrate of the first class. But the Sec. does not say that there should be no appeal generally when the conviction on the accused's own plea had been had in the Court of the Magistrate of the second class.

(3.) Another point arises that the trial Court being a Magistrate of the second class had no jurisdiction to try this offence. The offence is one punishable with 3 years imprisonment under a special or local law within the meaning of Schedule 2, Criminal P.C. In that schedule provision is made for the trial of offences against special and local laws. If such offences are punishable with imprisonment of three years and upwards but less than 7 years they are triable by a Court of Session or a Magistrate of the first class but not by a Magistrate of the second class. Rule 130 of the Defence of India Rules says that proceedings in respect of contravention of the provisions of these rules alleged to have been committed by any person may be taken before the appropriate Court having jurisdiction, in the place, where that person is living for the time being. The appropriate Court must be the Court of the first class Magistrate. When a Magistrate not being empowered by law in this behalf tries an offender it is enacted by Section 530(p), Criminal P.C., that those proceedings shall be void and it is well-settled that an omission to raise a question of jurisdiction in the first Court does not amount to waiver so as to confer jurisdiction.