EMPEROR Vs. PARMANAND RAI

JUDGEMENT

(1.) This and the connected application in revision No. 840 of 1942 are two criminal applications in revision by the Provincial Government and arise under the following circumstances: On 14 August 1942, a mob set fire to the Notified Area Office at Mau with the result that the records and the building were destroyed. Two separate cases arising out of this occurrence were sent up by the police under Section 436, Indian Penal Code. There were ten accused in one case and one accused in the other. Both the cases were tried by Mr. Masudul Hasan ostensibly acting as a Special Magistrate under ordinance No. 2 of 1942. He convicted all the accused in both the cases and sentenced each of them to two years rigorous imprisonment, and one of the accused, Radha Raman, was also ordered to pay a fine of Rs. 500.

(2.) Two appeals were filed by the convicted persons "in the Court of the Sessions Judge exercising the powers of Special Judge at Anamgarh" and the appeals were headed as appeals "under Section 13 of the Special Criminal Courts Ordinance, 2 of 1942." The learned Judge allowed the appeals, set aside the conviction and sentences of all the appellants in both the appeals and directed that the accused be committed to the Court of Sessions for trial "after regular commitment proceedings have been held." The twp applications in revision before us are directed against this order of the learned Judge. The learned Judge while signing the judgment described himself as "Sessions Judge" and not as a Special Judge. The appeals before him, however, purported to be under Section 15 of the Ordinance and were preferred to him in his capacity as a Special Judge. It is, therefore, manifest that he entertained, heard and decided the appeals as a Special and not as a Sessions Judge, and the cardinal question that arises for consideration is whether this Court is competent, in the exercise of its revisional jurisdiction, to interfere with the order passed by the learned Judge.

(3.) It appears that Mr. Masudul Hasan had exercised the powers of a Magistrate of the first class for less than two years and, as such could not, in view of the provisions of Section 9 of the Ordinance, be invested with the powers of a Special Magistrate under the Ordinance. The learned Judge, therefore, held, and rightly held, that the whole trial was ultra vires and illegal. The appeals by the convicted persons were, however, filed after the expiry of the period of seven days prescribed by Sub-section (2) of Section 13 of the Ordinance, and the Government Pleader accordingly raised a preliminary objection to the hearing of the appeals by the learned Judge on the ground that they were barred by time. The learned Judge overruled the preliminary objection on the ground that as Mr. Masudul Hasan was not legally "a Special Magistrate" Section 13 of the Ordinance had no application to the cases. He held that the cases should be "treated as having been disposed of by an ordinary first class Magistrate" and therefore the appeals were within time. He then proceeded to determine the question as to " what further proceeding should be taken in the cases." He held that, as the offence with which the accused persons were charged was committed before the Ordinance was put into force in these Provinces, the accused persons could not be tried under the Ordinance. This view of the learned Judge was opposed to the view taken by this Court in the Full Bench case in Salig Ram V/s. Emperor and was clearly erroneous. Having arrived at the conclusion just mentioned, the learned Judge passed the order for the commitment of the accused as stated above. In the Full Bench decision in Salig Ram V/s. Emperor . I held that the words of Section 26 of the Ordinance are very wide and . completely bar the revisional jurisdiction of this Court in cases tried and decided by Special Magistrates or Special Judges, and I still adhere to that view. Section 26 runs as follows: Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.