- (1.) THIS is a petition under Article 226 of the Constitution praying that a writ of prohibition he issued to the opposite party No. 1 restraining him from delivering the (judgment in Criminal case No. 412 of 1949 (State versus Manoharlal Kanodia and others ). The petitioner along with others were prosecuted of an offence under Section 7, Essential Supplies (Temporary Powers)Act 1946, read with Clause 24, Cotton Textile Control Order 1948. The opposite party No. 1, who was the Additional District Magistrate, Rural Areas, Kanpur, tried the case, heard the evidence but could not deliver the judgment for he was transferred to Tehri garhwal as District Magistrate. He handed over the charge to the opposite party No. 2 on 9-9-1954 and thereafter the case was fixed for 8th December for delivery of judgment. An application was moved by the petitioner that he was unable to attend the court on account of illness. On that an order was passed directing the applicant to appear before the court on 14-9-1954, and file a fresh hail bond and give an undertaking not to leave Kanpur without the permission until the judgment was pronounced. The opposite party No. 1 thereafter fixed 28-9-1954 for delivery or judgment in the case. On this fact the present petition was filed in which it is alleged that after handing over charge, the opposite party No. 1 ceased to be the magistrate of Kanpur and had no right to pronounce the judgment in the case referred to above. Notice has been issued to the other side. Counter-affidavit has been filed along with which a copy of the notification issued by the State Government on 25-9-1954, has been filed. The said notification has been issued under Section 10, Sub-section (2), Criminal P. C. , by which the opposite party No. 1, Sri S. N. Verma, District Magistrate, Tehri Garhwal, was appointed as the additional District Magistrate, Kanpur in addition to his own duties and that he was to have all the powers of a District Magistrate under the said Code. It is contended by the State Counsel that from the date of the notification he had jurisdiction to deal with the case and he had the power to pronounce judgment.
(2.) MR. Dwivedi who appears for the petitioner has urged that he should be permitted to challenge the validity of the notification issued by the State Government investing Sri S. N. Verma with the powers of the Additional District Magistrate, Kanpur, in addition to his duties as District magistrate, Tehri Garhwal. The contention of Mr. Dwivedi is that the State Government under section 10 (2), Criminal P. C. , has no power to appoint a magistrate to act as Additional District magistrate of a district in addition to his duties as a District Magistrate of another district. Section 10, Sub-section (2), Criminal P. C. , reads as follows : "the State Government may appoint any Magistrate of the first class to be an Additional district Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force as the state Government may direct. " Section 6 of the Code of Criminal Procedure reads thus : "besides the High Courts and the courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely : 1. Courts of Sessions: 2. Presidency Magistrates: 3. Magistrate of the first class: 4. Magistrate of the second class: 5. Magistrate of the third class. It is, therefore, clear that the courts recognised under the Code of Criminal Procedure are the five courts enumerated above and the Additional District Magistrate and the District Magistrate when exercising their functions as a court, are only the magistrates first class appointed by the state Government to act either as a District Magistrate or as Additional District Magistrate. There is nothing in Section 10 which debars a person, acting as a District, Magistrate, to be appointed as an Additional District Magistrate in another district.
(3.) RELIANCE has been placed by the petitioner on Section 12 of the Code which provides that: "the State Government may appoint as many persons as it thinks fit, besides the District magistrate, to be Magistrates of the first, second or third class in any district outside the presidency towns and the State Government or the District Magistrate subject to the control of state Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code". ;