1. This is an application to revise the conviction of the petitioner under s. 81(4) of the Defence of India Boles and the sentence passed on him of imprisonment for three months and a fine of Rs. 200 on conviction by a Magistrate of the second class which was affirmed and the sentence maintained on appeal by the Additional District Magistrate of Cuttack. The facts alleged against him were that on 16th June 1942, he sold 17 mds. 25 srs. of grain known as biri at a price 7-3/16 srs. to the rupee whereas the local controller had by an order fixed the price of this article at 8½ seers per rupee. In the form in which sub-r. (4) of R. 81 of the Defence of India Rules stood until 18th July 1942, it was not an offence to contravene an order made under the rule as held in Cri. Revn. No. 113 of 1942,1 decided on 10th December 1942. The act of the petitioner was not an offence in law. But, in this case, there is a new feature. The petitioner is said to have pleaded guilty and the appellate Court observed that the appeal lay to him on the question of sentence only and not on the merits. The answer to that is that the Additional District Magistrate was perhaps referring to Section 412 of the Cr PC, which enacts that there shall be no appeal except as to the extent or legality of the sentence where an accused person has pleaded guilty and has been convicted by a Court of Session or any Presidency Magistrate or Magistrate of the first class. But the section does not say that there should be no appeal generally when the conviction on the accused's own plea had been had in the Court of the Magistrate of the second class.
2. Another point arises that the trial Court being a Magistrate of the second class had no jurisdiction to try this offence. The offence is one punishable with 3 years imprisonment under a special or local law within the meaning of sch. 2, Code of Criminal Procedure. In that schedule provision is made for the trial of offences against special and local laws. If such offences are punishable with imprisonment of three years and upwards but less than 7 years they are triable by a Court of Session or a Magistrate of the first class but not by a Magistrate of the second class. Rule 130 of the Defence of India Rules says that proceedings in respect of contravention of the provisions of these rules alleged to have been committed by any person may be taken before the appropriate Court having jurisdiction, in the place, where that person is living for the time being. The appropriate Court must be the Court of the first class Magistrate. When a Magistrate not being empowered by law in this behalf tries an offender it is enacted by Section 530(p) of the Cr PC, that those proceedings shall be void and it is well-settled that an omission to raise a question of jurisdiction in the first Court does not amount to waiver so as to confer jurisdiction.
3. It is pointed out by the Advocate General that the particular Magistrate, Rai Sahib S.C Banerji, happened to be the Sub-Divisional Officer and it is said he must be deemed to have held all the ordinary powers of a Sub-Divisional Magistrate within the meaning of sch. 3, Code of Criminal Procedure Certainly sch. 3, part 4, item confers on a Sub-Divisional Magistrate the ordinary powers of a Magistrate of the first class. But those powers are still in Sch. 3 part 3 and the first of those powers is, the ordinary powers of the Magistrate of the second class. The other powers are in respect of search warrants, security for the peace and good behaviour and so on. But there is nothing in this list to enlarge the power of a Magistrate of the second class in respect of a trial of offences, I am of opinion, therefore, that the trial of the petitioner was void, that the learned Additional District Magistrate erred in holding that an appeal did not the to him on merits and that the conviction of the petitioner for the act which he is alleged to have done was not right. Accordingly I allow the application, set aside the conviction and sentence. The petitioner will be discharged from bail and fine, if paid, will be refunded.
R.K
4. Revision allowed.