D.N. Roy, J. - (1.) THIS is an application in revision by Sarnam Singh and nine others, who have been convicted at a summary trial by the Canal Magistrate, exercising powers under the Second Class, for an offence under Section 70 of the Northern India Canal and Drainage Act, No. VIII of 1873, and each of whom has been sentenced to a fine of Rs. 40/ -. Their appeal was dismissed by the learned Assistant Sessions Judge. A revision was filed by them before the Sessions Judge, but that too had been rejected. They have, therefore, come up in revision to this Court.
(2.) TWO points have been urged on behalf of the applicants. Firstly, that the Magistrate had no power to try the case summarily and the trial was, therefore, illegal. Secondly, that upon the facts found a conviction under Section 70 of the Act could not have been based. It is conceded at the Bar that the accused was tried summarily by the Canal Magistrate, who was invested only with powers of a Magistrate of the Second Class. The provision for summary trials is contained under Chapter XXII of the Code of Criminal Procedure. Section 260 of the Code lays down the conditions where the District Magistrate, or a Magistrate of the First Class especially empowered in that behalf by the State Government, or any Bench of Magistrates invested with the powers of a Magistrate of the First Class and especially empowered in that behalf by the State Government, may try in a summary way all or any of the offences enumerated in that section. Section 261 of the Code empowers the State Government to confer on any Bench of Magistrates invested with the powers of a Magistrate of the Second or Third Class power, to try summarily all or any of the offences mentioned in that section. There is no other section in the Code which empowers a Magistrate of the Second Class to try offences summarily or which even empowers the State Government to confer on a Magistrate of the Second Class powers to try summarily any offence. In the present case, therefore, the Canal Magistrate, exercising the powers of the Second Class, cannot be termed as a "Bench of Magistrates invested with the powers of a Magistrate of the Second Class," on whom the State Government could confer the power to try summarily offences enumerated in Section 261 of the Code of Criminal Procedure Moreover, an offence under Section 70 of the Northern India Canal and Drainage Act is not an offence enumerated under Section 261 of the Code. Consequently the trial under the summary provisions by this Magistrate was illegal.
(3.) APART from that aspect of the matter, the offence under Section 70 of the Northern India Canal and Drainage Act was not proved. Section 3, Sub -section (1) of the Act defines a "canal". It is admitted that Sub -sections (a), (b) and (d) do not apply to the water channel in this case. Reliance was, however, placed on Sub -section (c), which provides that a canal includes all watercourses as defined in the second clause of this section. Clause (2) of the section is as follows: Water -course means any channel which is supplied with water from canal, but which is not maintained at the cost of the State Government and all subsidiary works belonging to any such channel.;