Manohar Lall, J.:— This is an appeal by Gajadhar Singh who has been convicted by the Special Judge of Saran appointed under Special Criminal Courts Ordinance, 2 of 1942, for an offence under S. 412, Penal Code, and sentenced to five years' rigorous imprisonment. The case of the prosecution is that in the night of 1st January 1943, at about 11 P.M several articles were stolen away by dacoits from the houses of villagers in village Pilui, 7 miles off from Police Station Manjhi, and its adjoining village Dudhaila. On 8th January as the result of certain information, the Assistant Sub-Inspector searched the house of the appellant in the presence of two search witnesses, one of whom was examined as the last witness for the prosecution. As a result of this search, which was made in the presence of the accused himself, a number of articles were recovered from a box the key of which was produced by the accused. Twenty-three articles which were recovered are described in the search list, Ex. 3. The first is a silver hasuli 2 katua, the sixth is a diamond cut chhatri cut pachua 2 pairs, and the 17th is a red coloured sari. The hasuli (Ex. 1) is claimed by Mt. Paudhari, the wife of Samrath Mahto, the hasuli (Ex. 2) is claimed by Mt. Gharbharni, the daughter-in-law of Samrath Mahto, the sari (Ex. 3) is also claimed by Mt. Gharbharni, and the pair of pachua (Ex. 4) is claimed by Deoki Singh. The articles are said to have been taken away in the course of the dacoities from the houses of Samrath Mahto and Deoki Singh.

2. Before a Sub-Deputy Magistrate a test identification of the articles was held on 25th January. The Magistrate says in his evidence that he mixed these articles up with four hansulis, one chandarhar, one pair of pachuas, two silk saris, and one red Banarsi sari, which were all similar to the suspected articles. The prosecution witnesses in Court also identified the articles belonging to therm Upon these facts the accused has been convicted for being in possession of stolen articles, stolen in the course of dacoities.

3. It is argued by Mr. Tarkeshwar Nath in the course of a strenuous argument that although he is unable to challenge the factum of dacoities, it must be held on the evidence, firstly, that the accused has not been found to be in possession of the stolen articles, and, secondly, that the articles have not been properly identified as belonging to the prosecution witnesses, and that there is no evidence that these are the very articles which were re moved from the possession of the prosecution witnesses in the course of the dacoities on the night of 1st January 1943.

4. First then as to the recovery. It is submitted that no reliance should be placed on the evidence of Anant Kuer who was examined as the last witness for the prosecution. Apart from the fact that it is open to the prosecution to examine their witnesses in any order they choose, I cannot draw any inference adverse to the prosecution from the mere fact that they examined Babu Anant Kuer as their last witness. It is not suggested that the accused has suffered any prejudice by the late production of this witness. The witness is a Chaukidari President, and I am unable to find anything in his evidence which would show that he should be disbelieved. The witness says that the house was searched in his presence and the accused himself gave the key with which the box was opened and from which the suspected articles were recovered. He also says that the accused is the malik of the house. The witness is aged 60. The only suggestion made to the witness was whether it was not a fact that he was deposing falsely that the accused was present and he gave the key of the box. No reason is suggested why the witness should give false evidence. The evidence of the Sub-Inspector is to the same effect. He also says that the accused gave him the key of the box and the articles were recovered in the presence of the accused. Attention is drawn to the statement made by this witness to the Court that he does not remember if he left the box from which the ornaments were recovered or if he took it into his custody, and that the key was left with the box. But this is immaterial. After the articles were removed from the box as a result of the search, it was not very relevant to enquire where the box with the key attached to it was left. The accused himself, when-examined by the Court, under Section 342 of the Cr PC, first says that he does not know anything about these articles, whence they came, whom did they belong to, and who brought them. The Court was naturally struck with this answer given by the accused, who is a dismissed literate constable and thought that perhaps the accused has not understood the question put to him. He, therefore, repeated the question whether on 8th January 1943 these stolen properties were recovered from the possession of the accused which he retained in his possession knowing them to be stolen. The record shows that when this important question was repeated to the accused he said:

All these exhibits are of my house: both the hasulis, pachua and sari belong to my house and I have heard that these things were recovered from my house.

5. He was also asked the last question that the Assistant Sub-Inspector and Anant Kuer say that you were present during the house search and it was yon who gave the key of the box. Is there any reason for their saying so falsely?

6. All that the accused said in answer to this question was that he could not say definitely. I am satisfied that the learned Judge took the correct view when he held that it has been amply proved that as a result of the search on 8th January 1943 these articles were recovered from the box in the house of the accused in his presence and the box was opened with the key supplied by the accused. The important question then remains as to whether it has been proved that these articles belonged to the prosecution witnesses and have been correctly identified.

7. It has been strongly argued that no reliance should be placed upon the test identification of 25th January, because the Magistrate did not observe the precautions which are enjoined in the Police Manual, namely, that he failed to mix up the suspected articles with a larger number of other similar articles an order to avoid the risk of a wrong identification. It is pointed out that the sari (Ex. III) was mixed up with only one red Banarsi sari, that the two hasulis were mixed up with only four hasulis and that the hasulis with which these were mixed up were all new, and therefore the so-called stolen hasulis could easily be separated and identified. Having perused the evidence, I am not satisfied that the identification of the Banarsi sari is quite satisfactory. It was mixed up with only one other sari, although at the same time I must observe that the owner of a particular article can easily identify his own property. But with regard to the other articles recovered from the possession of the accused I see no reason to distrust the evidence of identification. Mt. Paudhari, Mt. Gharbharni, Samrath Mahto and Deoki Singh have given evidence which must be accepted. They are the owners of different houses in which dacoities were committed and there is nothing to suppose that they would falsely identify the articles. The witnesses have also given reasons why they could identify their articles. For instance, Deoki identified the pair of pachhua because it is slightly cracked on the inner side. The witnesses were quite frank in saying that such articles are common articles to be found in the bazar. But nevertheless it is a matter of common experience that owners of articles can easily identify them by their shape, by their feel, etc., which can be readily detected by the owners. I am, therefore, satisfied that the prosecution has proved that these articles were stolen articles as the result of dacoities in the night of 1st January 1943, and as they were so soon after the occurrence recovered from the box which was opened with the key supplied by the accused, it must be held that the accused is guilty of the offence of S. 412, Penal Code. His conviction is, therefore, correct. The sentence imposed on him is not severe.

8. It was then argued that the learned Special Judge had no jurisdiction whatsoever to try the case. This argument is based on the following facts. On 10th January 1943 the appellant was arrested and forwarded in custody to the Sub-divisional Officer of Chapra who remanded him to hajat till 23rd January. The charge-sheet was received against the appellant on 25th February when the record was directed to be put up to the District Magistrate so that he may transfer the case to a Special Magistrate for trial. On 1st March 1943 the District Magistrate of Chapra transferred the case to Khan Sahib S. Mehdi Ali, Special Magistrate Sadar, for disposal. The Special Magistrate on 9th March 1943 passed the following order: “Fix 24-3-43. Summon P.Ws Inform C.S.I and I.O Accused as before.” On 23rd March the District Magistrate withdrew the case to his own file and transferred it to the Special Judge by the following order:

The case is withdrawn to my file and transferred to the Special Judge for disposal as Are arms are alleged to have been used and Special Magistrate will not be able to pass adequate sentence on conviction.

9. The case was received by Mr. Jamuar, a Special Judge, on 25th March and he on 3rd May fixed 28th May for hearing. The trial began on 28th May and was concluded on 31st May. After hearing arguments the learned Special Judge convicted the accused on 4th June as already stated. It is argued on behalf of the appellant that the learned Special Judge had no jurisdiction to try him because the District Magistrate having once transferred the case to the Special Magistrate on 1st March had no jurisdiction then to, transfer the case to the Special Judge. Attention was drawn to the provisions of S. 25A(2) inserted by Ordinance 61 of 1942. This provision was in operation on 1st March 1943. It is provided by sub-cl. (2) that the District Magistrate may at any stage of the proceedings before a Special Magistrate transfer the case from him to another Special Magistrate within the district. The argument is that this sub-clause only authorises the District Magistrate to transfer a case from the Special Magistrate to another Special Magistrate and does not empower him to transfer it to a Special Judge. In my opinion there is no substance in the argument. The District Magistrate himself is a Special Magistrate and, therefore, by S. 25A(2) he could transfer the case from the file of Khan Sahib S. Mehdi Ali to himself. The District Magistrate as a Special Magistrate was thus in complete seisin of the case against the accused on 23rd March 1943 and could try it himself. The learned District Magistrate was admittedly empowered by the Provincial Government to transfer cases to the Special Judge either by a general order or by a special order. In my opinion, therefore, by reason of the order dated 23rd March 1943, the Special Judge had complete jurisdiction by the operation of S. 5 of the Ordinance. Reliance was also sought to be placed upon the decision given by a Division Bench of this Court in Criminal Revision No. 480 of 1943 decided on 23rd July 1943, but that decision is of no help to the appellant because in the view which I have taken the Special Judge had jurisdiction if Ordinance 2 is assumed to be valid. That decision would have been of help to the appellant if I had held that the District Magistrate of Saran had no jurisdiction whatsoever to make over the case to the Special Judge on 23rd March 1943. The question whether Ordinance 19 of 1943—Special Criminal Courts (Repeal) Ordinance—is itself ultra vires is now concluded so far as this Court is concerned by the decision of the Division Bench in Cri. Revn. No. 34 and the connected revisions of 1943,1 on 20th July 1943. The result is that I would dismiss this appeal but would grant a certificate under Section 205 of the Government of India Act, 1935, so that the appellant, if he so desires, may appeal to the Federal Court.

Meredith, J.:— I entirely agree.

R.K

10. Appeal dismissed.