- (1.) THE following question has been referred to this Bench by a learned Single Judge. "whether is was competent for the Government in exercise of its powers under sec. 10 (2) read with sec. 39 Cr. P. C. to invest powers under sec. 515 Cr. P. C. in the Additional District Magistrate to hear appeals or revisions from orders passed under sec. 514 Cr. P. C. and whether sec. 10 (2) is controlled by sec. 37 of the Criminal Procedure Code". THE facts which have given rise to this reference are these. A First Class Magistrate of Jaipur passed an order under sec. 514 Cr. P. C. against one Laloolal who filed an appeal against it in the court of the District Magistrate, Jaipur. This appeal was transferred by the District Magistrate to the Additional District Magistrate on whom the powers of the District Magistrate under sec. 515 Cr. P. C. namely to hear appeals from or revise orders passed under sec. 514 Cr. P. C. had been conferred by the State Government under Notification No. F. 1 (10) 1/j/b/57/183 dated 23rd of January 1957. THE Additional District Magistrate heard the appeal and dismissed it. Laloolal then filed an application under sec. 435 Cr. P. C. to the Sessions Judge challenging the validity of the above notification On this application the Sessions Judge made a reference to this Court under sec. 438 Cr. P. C. expressing the opinion that the power under sec. 515 Cr. P. C. cannot be conferred on an Additional District Magistrate. THE reasoning given by him is that an Additional District Magistrate being also a Magistrate subordinate to the District Magistrate an appeal would lie to him from an order passed by the Additional District Magistrate under sec. 514 Cr. P. C. and the term District Magistrate under sec. 515 Cr. P. C. cannot therefore be deemed to include an Additional District Magistrate.
(2.) ON the above reference the learned Single Judge formulated the question which has been referred to this Bench. Sec. 10 falls under Chapter II which deals with the constitution of criminal courts whereas sec. 36 falls in Chapter III dealing with powers of courts. Sec. 10 deals with District Magistrates. Sub-sec. (1) provides for the appointment of a Magistrate of the first class in every district as a District Magistrate. Sub-sec. (2) empowers the State Government to appoint any other First Class Magistrate of the district to be an Additional District Magistrate and to confer upon him all or any of the powers of the District Magistrate under the Code of Criminal Procedure or under any other law for the time being in force It has to be borne in mind that District Magistrates as well Additional District Magistrates besides being District Magistrates and Additional District Magistrates are also Magistrates of the first class. Sec. 36 specifies the ordinary powers of District Magistrate, Sub Divisional Magistrate and Magistrates of the first, second and third class and sec. 37 mentioned what additional powers can be conferred on these officers besides the ordinary powers which they exercise by virtue of sec. 36. The powers given to the State Government under sec. 10 (2) is in no way controlled by. sec. 37. Under sec. 10 (2) the State Government has power to appoint any First Class Magistrate as an Additional District Magistrate Mere appointment of a First Class Magistrate as an Additional District Magistrate does not however clothe him with any power of the District Magistrate Such powers have to be specifically conferred by the State Government on the officer appointed as an Additional District Magistrate before he becomes clothed with them. The powers to hear appeals or revise orders passed under sec. 514 is an ordinary power of the District Magistrate under sec. 36 which is enumerated in Schedule III. The additional powers which can be conferred under sec. 37 are enumerated in Schedule IV. An examination of this schedule shows that it does not deal with powers of the District Magistrate which can be conferred on the Additional District Magistrate. It deals only with such additional powers as can be conferred on the Magistrates of the first, second and third class and on the Sub Divisional Magistrates. The power to hear appeals or revise orders passed under sec. 514 can certainly not be conferred on a mere First Class Magistrate, as this power is not mentioned in Schedule IV. But such a power can be conferred on an Additional District Magistrate under sec. 10 (2 ). An Additional District Magistrate is subordinate to the District Magistrate in his executive capacity. In his judicial capacity he is subordinate to him when he exercises powers as First Class Magistrate. As has been mentioned above District Magistrates and Additional District Magistrates apart from being District Magistrates and Additional District Magistrates are First Class Magistrates as well. An order under sec. 514 Cr. P. C. can only be passed by an officer who is an Additional District Magistrate only in his capacity as a First Class Magistrate. When such an officer exercises any judicial power of the District Magistrate which is specifically conferred on him by the State Government under sec. 10 (2) he is not subordinate to the District Magistrate who is an officer exercising concurrent jurisdiction. None of the cases referred to by the learned Single Judge in his referring order support the proposition that the power under sec. 515 Cr. P. C. cannot be conferred on the Additional District Magistrates. In Prabhulal Ramlal vs. Emperor (1) the question was whether a power delegated by the Central Government under Rule 26 of the Defence of India Rules to District Magistrate could be exercised by the Additional District Magistrate upon whom all the powers of the District Magistrate had been conferred by the Provincial Government under a notification issued in exercise of the powers conferred by sec. 10 (2) of the Criminal Procedure Code. It was held that it could not on the ground that under the delegated authority the District Magistrate was a persona designata. This case has no relevancy to the question before us. In M. A. Gaffur vs. the State (2) it was held that an order passed by the Additional District Magistrate under sec. 514 Cr. P. C. can be revised by the District Magistrate under sec. 515 Cr. P. C. As has been pointed out above an order under sec. 514 Cr. P. C. can only be passed by an Additional District Magistrate in his capacity as a Magistrate of the first class. This case also has no bearing on the matter under reference. In Kaluram vs. Madhya Bharat State (3) decided by a learned single judge on 12. 1. 50 an order under sec. 514 Cr. P. C. was passed on 9. 12. 48 by a Magistrate of the 2nd or 3rd class. An appeal against that order was presented in the court of the First Class Magistrate who held on 20. 1. 49 that an appeal lay only to the District Magistrate under sec. 515 Cr. P. C. The First Class Magistrate was not an Additional District Magistrate having all powers of a District Magistrate. On 19. 1. 49 a notification was issued by the Chief Secretary directing that District Magistrates should not exercise powers under the Code of Criminal Procedure except those specified in Chapters VIII, IX and XL In view of this notification the District Magistrate declined to entertain the appeal when it was presented before him. On a reference being made to the High Court it was held that the notification was unvalid as the State Government was not competent to take away any of the bowers of the District Magistrate conferred upon him under the Code of Criminal Procedure. The District Magistrate was accordingly directed to hear the appeal. The question as to whether the District Magistrate was competent to transfer it for hearing to an Additional District Magistrate did not arise in that case. The question which is now before us actually arose in a subsequent case Vallabhadas Dhuryaji vs. State of Madhya Bharat Criminal Misc. Application No. 91/52 decided on 10. 2. 53 which came up before a division bench of the same High Court. It was held : - It is true that only the District Magistrate alone can entertain appeals under S. 515. But there is nothing to prevent the Additional District Magistrate on whom the powers are conferred under S. 10 (2) from hearing an appeal under S. 515 when such appeal is transferred to him by the District Magistrate. This is an ordinary power of the District Magistrate conferred by the Criminal Procedure Code and he can certainly transfer the hearing of appeal under S. 515 to the Additional District Magistrate. The whole case has not been reported. Only an extract from it appears in the notes of unreported cases in A. I. R. 1955 N. U. C. 2096 (M. B.) We are accordingly of the opinion that the State Government is competent to confer power under sec. 515 Cr. P. C. on the Additional District Magistrate by virtue of the provisions of sec. 10 (2 ). Let the reference be returned with the above answer. .;