Patna High Court
Sheobhanjan Singh And Ors. vs Emperor on 22 January, 1925
Equivalent citations: 86IND. CAS.978, AIR 1925 PATNA 472
JUDGMENT B.K. Mullick, J.
1. It appears that in this case the trial was commenced by Babu Paresh Nath Mazumdar while he was a Deputy Magistrate of the Second Class. On the 20th September 1924 this Magistrate was vested with First Class powers. On the 24th September the trial was continued and some prosecution witnesses were cross-examined and discharged. The case continued until the 28th September when arguments were heard and on the 29th September judgment was delivered and the accused were convicted.
2. The question now is whether the appeal lies to the District Magistrate or to the Sessions Judge. The Sessions Judge has referred the matter to us and is of opinion that the appeal should be heard by the District Magistrate. He states that the trial was completed by the Magistrate in this case while he was a Second Class Magistrate and that he was vested with First Class powers after the hearing was closed and before the delivery of the judgment. The learned Judge relies on Emperor v. Nga Paw 8 Cr. L.J. 48 : 4 L.B.R. 239. It may be admitted that the wording of Section 407 of the Cr. P.C., admits of the view that it is not the conviction by a Second Class Magistrate but the holding of a trial by such Magistrate that determines the forum of the appeal. In this case, however, that question does not arise because the Bihar and Orissa Gazette of the 24th September 1924 shows that Babu Paresh Nath Mazumdar was vested with First Class powers some time before the hearing of the arguments in the case. Therefore part of the trial was held by him as a Second Class Magistrate and part as a First Class Magistrate, and I think in the circumstances the proper tribunal for hearing the appeal is the Sessions Judge and not the District Magistrate.
John Bucknill, J.
3. I agree.