Sridhar Jha vs Emperor

Agarwala, J.—The petitioner, a boy of 15, has been sentenced to eighteen months'' rigorous imprisonment for contravening the provisions of Rule 39, Defence of India Rules, i.e., of being in possession of documents containing prejudicial reports.

On behalf of the petitioner it has been contended that the documents referred to have not been proved to have been recovered from his possession, that the documents do not contain prejudicial reports, and thirdly, that the Magistrate who conducted the trial had no jurisdiction to do so.

The case was transferred to Mr. Bhawani Shankar for trial by the Sub-divisional Magistrate on 14-3-1945. The trial actually commenced on 21st July. A charge was framed on the 26th, and on the 30th most of the prosecution witnesses were cross-examined and the case adjourned for the cross-examination of the investigating officer. The investigating officer was cross-examined on 1st August, and judgment in the case was delivered on the 27th. An offence (under Rule 39 is punishable with three years'' rigorous imprisonment. Under Schedule II, Criminal P.C., such an offence is triable by a Magistrate of the First Class. Until 1st August, Mr. Bhawani Shankar was a Magistrate of the Second Class. He was vested with first class powers on 1st August by Notification No. 974. It is clear, therefore, that until that date he had no jurisdiction to conduct this trial at all.

In Budhu Tatua Vs. Emperor, a Second Class Magistrate submitted a case which he was trying to the Sub-divisional Magistrate on the ground that the offence disclosed by the evidence appeared to be one which he was not competent to try. The Sub-divisional Magistrate then transferred it to a Magistrate competent to try the case. As the accused did not claim a de novo trial, the latter Magistrate proceeded on the evidence recorded by the first Magistrate, and based his conviction partly on that evidence. The High Court held that the trial was void as the evidence had been recorded by a Magistrate who was not empowered to try the case. The present case is similar to that, except that the evidence has been recorded by the same Magistrate; but it is obvious that for the greater part of the trial he was a Magistrate of the Second Class who had no jurisdiction to record the evidence or to try the accused. In my view, this conviction and sentence must, therefore, be set aside.

Bennett, J.

I agree.