PESHAN SHAIKH Vs. EMPEROR

JUDGEMENT

(1.) The petitioners were convicted and sentenced by the Sub-Divisional Magistrate of Pakaur in Santal Parganas under Section 4 of the Bihar Fowls etc., Cattel Movement Control Order, 1943, and two of them were further convicted and sentenced under Section 353, Indian Penal Code by the same Court by a judgment dated 12 August 1946. There was an appeal to the ganas against this conviction, and by his Additional district Magistrate, that is, on 12 April, 1947, the Santal Parganas Justice Amendment and Miscellaneous Provisions Regulation of 1947 came into force in the provided inter alia that any person convicted by a first class Magistrate could appeal to the Court of Session. On the strength of this provision it was contended, therefore, before Shearer, J., who first heard this application, that the learned Additional District Magistrate had no jurisdiction to hear the appeal and that the order passed by him on 15 May 1947, was illegal and fit to be Bet aside, As a. point of law is involved in this contention, affecting a number of similar applications pending before the Court, the matter has been referred to a Division Bench.

(2.) To appreciate the point raised, it will be necessary to give a short history of the provisions made from time to time for the hearing of appeals from convictions in the Santal Parganas and to explain the circumstances in which this point of law has come to be raised. The Santal Parganas Justice Regulation of l893 which is the earliest Regulation to be considered provided for appeals from convictions by Magistrates other than the Deputy Commissioner to be filed before the Deputy Commissioner and appeals from convictions and sentences by the Deputy Commissioner to be filed before the Commissioner as the High1 Court. Regulation No. IV of 1933 made no changes in this position relevant to the point in issue, but Regulation III of 1940 provided in Section 4 that the Criminal P. C., 1898, shall have effect in the Santal Parganas subject to certain modifications among which the relevant provisions are to be found in Clauses (a), (b) and (c) of Sub-section (1) to Section 4. Briefly stated, clauses (a) and (b) provided for appeals to the District Magistrate from convictions by 2nd and 3 Class Magistrates as well as 1 Class Magistrate other than the Additional District Magistrate and Clause (c) prescribed that from convictions by the District Magistrate or the Additional District Magistrate appeals were to lie to the Sessions Judge. Now Section 2(b) of the Santal Parganas Justice Regulation of 1947 made a further amendment to the 1893 Regulation by substituting the following for Clauses (b) and (c) of Sub-section (1) of Section 4 of the 1893 Regulation: Any person convicted on a trial held by the District Magistrate, the Additional District Magistrate or any other Magistrate of the 1 Class or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by the District Magistrate, the Additional District Magistrate or any other Magistrate of the 1 Class may, subject to the provisions of para. (c), appeal to the Court of Session.

(3.) Paragraph (d) Sub-section (1) of Section 4 of the Regulation of 1940 was to be re-lettered as para (c) and referred to appeals to the High Court from convictions by Magistrates specially empowered under Section 30, Criminal P.C., and does not arise for consideration in the present petition. The position created by Section 2 of the Regulation of 1947 is, therefore, that an appeal from a conviction by a 1 Class Magistrate, including a District Magistrate or an Additional District Magistrate, lies hereafter to the Sessions Judge, and with the coming into force of the Regulation of 1947 ft person in the Saatal Parganas convioted by a 1 Class Magistrate may appeal to the Court of Session. The contention raised before us is that by virtue of this provision the present petitioners had acquired a right of appeal to the Sessions Judge of Santal Parganas from their conviction by a First Class Magistrate and-that Since this Regulation had come into force when their appeal was still pending before the Additional District Magistrate of Santal Parganas, the learned Additional District Magistrate had no jurisdiction to dispose of the appeal and his order upholding the conviction is illegal,