Beaumont, Kt., C.J.
1. This is an application in revision made by the Government of Bombay, and the question which arises is as to the jurisdiction of the Bench Magistrates.
2. The material facts are that there was a complaint against certain persons under Section 323, Indian Penal Code, of causing hurt. That complaint was heard by three Magistrates constituting a bench, each of them being a Magistrate having second class powers. They dismissed the complaint, and then under Section 250 of the Criminal Procedure Code called upon the complainant to show cause why he should not be ordered to pay compensation to the accused on the ground that the complaint was frivolous and vexatious, and the learned Magistrate directed the complainant to pay Rs. 10 to each of the five accused. An appeal was then made to the District Magistrate at Satara who sent the case to the Sub-Divisional Magistrate for disposal. The Sub-Divisional Magistrate held that he had jurisdiction to deal with the appeal. He allowed the appeal and set aside the order for paying compensation.
3. The question of jurisdiction which arises is this. If the bench of Magistrates which heard the case had only second class powers, then an appeal would lie to the Divisional Magistrate. But if the bench had first class powers, then, if there had been any appeal at all, it would have been to the Sessions Judge, But as the compensation directed did not exceed Rs. 50 there would be no appeal, having regard to the provisions of Sub-section (3) of Section 250. The question involves the construction of Section 15 of the Criminal Procedure Code and of a notification of Government thereunder.
4. Under Section 12 of the Criminal Procedure Code the Local Government is given power to appoint Magistrates of the first, second, or third class in any district outside the presidency-towns. Under Section 14 the Local Government can appoint Special Magistrates, and then under Section 15 the Local Government is given power to direct any two or more Magistrates in any place outside the presidency-towns to sit together as a bench and to invest such bench with any of the powers conferred under the Code on a Magistrate of the first, second, or third class, and then by Sub-section (2) it is provided that except as otherwise provided, that is to say, unless special powers are conferred by the order constituting the bench, every such bench shall have the powers conferred by the Code on a Magistrate of the highest class to which any one of its members, who is present taking part in the proceedings as a member of the bench, belongs. Then Section 16 gives to the Local Government power to frame rules as to the procedure for the guidance of benches of Magistrates, and amongst other matters, with which the rules may deal, is the constitution of the bench for conducting trials. Acting under Section 15 the Government of Bombay, on December 9, 1931, directed that ten Magistrates of the Satara District, two having powers of the first class and eight of the second class should sit together as a bench, and conferred on the said bench all the powers conferred by the said Code on a Magistrate of the first class except certain powers referred to in the notification. The view taken by the Sub-Divisional Magistrate is that under that notification all ten members of the bench must sit together, these being the words used in the notification, and that the special powers of a First Class Magistrate conferred by the notification only apply if the whole bench is sitting together. He takes the view further that as only three members of the bench were sitting (three being a quorum) the powers of the bench were those conferred by Sub-section (2) of Section 15, viz., the powers of a second class Magistrate, no member of the bench of three being of a higher class than that. It seems to me that the latter view of the Sub-Divisional Magistrate cannot be supported, because the bench on which powers are conferred by Sub-section (2) of Section 15, in the absence of any special powers conferred under Sub-section (i), is the same bench as that on which special powers might have been conferred under Sub-section (1); and if the learned Sub-Divisional Magistrate is right in thinking that the powers under Sub-section (1) can only be conferred on the whole bench of ten Magistrates then no powers arise under Sub-section (2), and a bench consisting of less than ten Magistrates would seem to be a bench devoid of powers. No doubt some force is lent to the view of the learned Sub-Divisional Magistrate on the former point by the use of the words 'sit together' in the Government Notification. These words follow the language of Section 15, and as the notification is expressly made under the powers conferred by that section, we must, I think, construe the words in the notification as having the same meaning as similar words in the section. We have, therefore, to see what the words 'sit together' in Section 15 really mean. Now if they are to be construed literally, they mean that the whole bench must sit in session together. Two difficulties arise on that construction. In the first place there would seem to be no force in the power given in Section 16 by which the Local Government can make rules for the constitution of benches. If a bench in session must always consist of all the members of the bench that power seems to be nugatory. In the second place it is plain that if the whole bench must at all times sit together it would for practical purposes be useless as a bench, because it is notoriously difficult to get a considerable number of honorary Magistrates to sit together for any length of time. We must read Sections 15 and 16 together, and reading them together it seems to me that the words 'sit together' in Section 15 must be construed as equivalent to 'constitute,' so that the Local Government may direct any two or more Magistrates to constitute a bench, and then they may invest that bench with special powers, and they may make rules under Section 16 providing how the bench is to be constituted for the purpose of conducting trials. If that is so, the rules which have been made by Government, providing that a bench should consist generally speaking of five members with a quorum of three, are valid. If the right construction of Sections 15 and 16 of the Code is as I have indicated above, then a similar meaning must be given to the words 'sit together' in the notification made by Government under Section 15, and we must hold that three Magistrates, members of the whole bench of ten, who formed the trial bench, had the; powers of a First Class Magistrate under the notification. That being so, the learned Sub-Divisional Magistrate had no jurisdiction to deal with the case.
5. So far as the merits are concerned we think that the view taken by the Sub-Divisional Magistrate was right and that it was not correct on the part of the trial Magistrate to hold that this complaint was false and either frivolous or vexatious. As I have already pointed out, in the view we take of the matter, there was in fact no appeal from the order of the Magistrate, and if we send the matter back to the learned Sessions Judge he can only refer it again to the High Court under Section 438, Criminal Procedure Code. We think, therefore, that the best course is to exercise our powers of superintendence and to set aside the order of the trial Magistrate directing compensation to be paid by the complainant.
6. I agree. It seems to me very difficult to frame the notification so as to avoid the situation which is arising. Strictly speaking, as the learned Sub-Divisional Magistrate has said, if you read the notification by itself it must mean that the ten gentlemen named have to sit together as a bench and as such bench they have the powers of a First Class Magistrate. The implication is that if they do not sit together they would not have any powers at all. This of course would be absurd. The benches of Magistrates would be of very little use if every member of the panel had to try every case. It is possible that Government might have worded the notification in a different way. They might have said in their notification under Section 15 of the Criminal Procedure Code that any three or more Magistrates named in the list already given were to have power to sit together as a bench, and the bench so constituted was to have powers of a First Class Magistrate. But then, again, if it was intended to read the section in this way it would mean that Government in its notification under Section 15 would have to state what exactly was to be the lowest number to sit together, the quorum, and Section 16(c) would be superfluous. The two sections must be interpreted so as to give effect to both, and that can only be done, it seems, by holding that the benches created by notification under Section 16(c) out of the bench created by Section 15, have the powers given to that bench by the order under Section 15.