C.P. Sen, J.
1. By this order the references made in Criminal Revision No. 1] of 1976, Basudeosingh v. State of M. P., Criminal Revision No. 12 of 1976, Basudeosingh v. State of M. P. and Criminal Revision No. 13 of 1976, Basudeosingh v. State of M. P., are also answered.
2. The following questions have been referred to the Division Bench for consideration:t
1. Whether the State Government is empowered under Section 11(1) of the New Code to appoint Judicial Magistrate of a particular district to have his headquarters outside the district?
2. Whether one person so appointed by this Court to be the Judicial Magistrate of different districts to try all C B. I. cases aris- ing in those districts can have his headquarters at one particular place
3. If the State Government and the High Court are so empowered to issue notifications, then what should be the forum of appeal against the judgments and orders passed by such Magistrate?
3. In Criminal Revision No. 92 of 1976, the non-applicant was prosecuted for the offences under Sections 420 and 465, I. P. C. by the Special Police Establishment of the Central Government, for having cheated the Heavy Electricals Limited, Bhopal, and also for having forged two certificates. The non-applicant was convicted for supplying inferior steel bars to the Heavy Electricals Ltd., Bhopal and for forging the tests certificates for the materials supplied between April to June 1962, by Shri L. S. Nihalani, Special Magistrate (Judicial Magistrate, First Class). Indore, who was empowered to try cases instituted by the Special Police Establishment. Since the offences were committed within the territorial jurisdiction of the Sessions Court at Bhopal, the non-applicant preferred an appeal before the Sessions Judge, Bhopal, although Shri L. S. Nihalani had his headquarters at Indore. The Sessions Judge made a reference to this Court as to whether an appeal could be entertained by him or it has to be entertained by the Sessions Judge, Indore.
4. In Criminal Revisions 11 of 1976, 12 of 1976 and 13 of 1976, the applicant Basu-deosingh was prosecuted by the Special Police Establishment of the Central Government in three different cases under Sees. 409 and 477-A, I. P. C for having committed criminal breach of trust and also for having forged certain documents in respect of various sums while working as cashier in the National Coal Development Corporation at Baikun-thapur in Sarguja district These offences were committed within the jurisdiction of the Sessions Court at Ambikapur, district Sarguja in respect of embezzlement of the amounts of Rs. 5171.36 Ps; Rs. 1000/- and Rs. 5397.63 paise respectively. He was convicted for the aforesaid offences by Shri D. S. Pathak, Special Magistrate (Judicial Magistrate, First Class), who was empowered to try cases instituted by the Special Police Establishment. Against his convictions the applicant preferred three appeals before the Fourth Additional Sessions Judge, Jabalpur, as the headquarter of Shri D. S. Pathak was located at Jabalpur. However, all the appeals have been dismissed by the Additional Sessions Judge on the ground that the offences arose within the jurisdiction of the Sessions Court t Ambika- pur, district Sarguja and, therefore, the appeals could not be entertained at Jabalpur.
5. It may be mentioned here that the prosecutions in all these cases were launched before the new Code of Criminal Procedure of 1973 came into force. Formerly in this State there were two Special Magistrates constituted under Section 14 of the Code of Criminal Procedure 1898, to try cases instituted by the Special Police Establishment of the Central Government under the Delhi Special Police Establishment Act, 1946. The two Special Magistrates had their headquarters at Indore and Jabalpur respectively. The Special Magistrate at Indore was given jurisdiction over 21 districts; while the Special Magistrate at Jabalpur was given jurisdiction over remaining 24 districts of the State.
6. Under Section 14 of the Code of Criminal Procedure, 1898, the State Government in consultation with the High Court could confer upon any person duly qualified all or any of the powers conferred or conferable by or under the Code on a Magistrate of the first, second or third class in respect to particular cases or particular classes of cases or to cases generally in any local area outside the presidency towns. The New Code of Criminal Procedure, 1973, came into force in this State with effect from 1st April, 1974. Under Section 484(2)(b), 'all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appoint' ments, not being appointments as Special Magistrates made under the Old Code and which were in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code'. Since this provision required fresh notifications to be issued in respect of Special Magistrates under the New Code, by separate notifications dated 12-0-1974 the State Government, in consultation with the High Court and in exercise of powers conferred by Sub-section (1) of Section 11 of the New Code, established Courts of Judicial Magistrate, First Class, in each of the districts ol the State, especially to try cases instituted by the Special Police Establishment. However, for 21 districts the headquarter of these Courts was located at Indore, and for the remaining 24 districts, the headquarter was located at Jabalpur. By notification No. 449, dated 9-1-1978 and in exercise of powers conferred by Sub-section (2) of Section 11 of the New Code, the High Court of Madhya Pradesh was pleas ed to appoint Shri L. S. Nihalani to be the Presiding Officer of die Court of the Judicial Magistrate, First Class, in respect of 21 districts with headquarters at Indore. By a similar notification No. 451, dated 9-1-1975, Shri D. S. Pathak was appointed to be the Presiding Officer of the Court of the Judicial Magistrate, First Class, in respect of 24 districts with headquarters at Jabalpur. It is evident that Shri L. S. Nihalani was the Judicial Magistrate, First Class, for each of the 21 districts, including Bhopal, hi respect of cases instituted by the Special Police Establishment arising in those 21 districts; while Shri D. S. Pathak was the Judicial. Magistrate, First Class, for each of the remaining 24 districts including Sarguja in respect of oases arising in those 24 districts of the State.
7. It may be mentioned here that there are slight changes in the provision regarding constitution of the Courts of Special Judicial Magistrates in the new Code. Section 14 of the Old Code has already been referred to above- The corresponding provision in the New Code is Section 13 which provides that 'the High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferable by or under this Code on a Judicial Magistrate of the second class, hi respect to particular cases or to particular classes of cases or to cases generally, in any district not being metropolitan area'. The changes effected are: (i) the authority to confer such Magisterial powers has now been given to the High Court instead of to the State Government under the Old Code (ii) Special Magistrates could be appointed under the New Code only in respect of Judicial Magistrate of the second class; while under the Old Code, they could be appointed for the first, second and the third class. There is no third class under the New Code, and (iii) Under the New Code the Special Magistrate has to be in respect of a particular district, while under the Old Code, it could be in respect of any local area. The Supreme Court in Jagannath Sonu v. State of Maharashtra : AIR1963SC728 has opined that the term 'local area is wide enough to include any part of a State and it may cover more than one district. Therefore, under the Old Code, there was no difficulty in appointing Special Magistrate of any class to exercise powers over more than one district in respect of particular cases or a particular classes of cases or cases generally. But, under the New Code, only a Special Magistrate of second class could be ap- pointed and that too only for a particular district. Since there is no provision for appointment of Special Magistrate. First Class, under the New Code, the State Government in consultation with the High Court, by a separate notification dated 12-9-1974 constituted Courts of Judicial Magistrate, First Class, in each district of the State to try cases instituted by the Special Police Establishment of the Central Government. Shri L. S. Nihalani was appointed Judicial Magistrate, First Class, to try these cases for each of the 21 districts with headquarter at Indore and Shri D. S. Pathak, was appointed Judicial Magistrate, First Class, for each of the 24 remaining districts with headquarter at Jabalpur.
8. There was divergence of views between different High Courts regarding the forum of appeal or revision against the decision of a Special Magistrate exercising powers over more than one Sessions Divisions. In Valia Ambu Poduval v. Emperor (1907) ILR 30 Mad 186 : 4 Cri LJ 443, it was held that under Section 408 of the Old Code, the appeal lay to the Court of Session, without any further explanatory words. Therefore, Section 408 has to be read with Section 435, which deals with powers of revision of Sessions Courts and provides that the Sessions Judge has got powers to call for and examine records of any inferior Criminal Court 'situate' within the local limits of his Jurisdiction. The word 'situate' means fixed or located; when applied to a Court, it must be taken to refer to the place where the Court ordinarily sits. So, in the absence of any indication to the contrary in His Old Code, the appeal would lie before the Sessions Judge within whose jurisdiction the headquarter of the Special Magistrate was located. This view has been followed by a Division Bench of the Lahore High Court in Hira Lai v. Emperor AIR 1918 Lah 196 : 19 Cri LJ 810; a Single Bench of the Allahabad High Court in Short Lai v. State AIR 1952 AH 198 : 1952 Cri LJ 387; a Single Bench of the Madhya Bharat High Court in Rahim Poonam v. Abdul Rahim AIR 1953 Madh B 156 : 1953 Cri LJ 1027, a Single Bench of the Rajasthan High Court in Babu-lal v. State, 1962 (1) Cri LJ 670 and a Division Bench of the Punjab High Court in the State of Haryana v. Shri Ram Niwas Birla, (1973) 75 Pun LR 541.
9. However, another Bench of the Madras High Court in Public Prosecutor v. Sadananda Patnaik, ((1912) 13 Cri LJ 850) has distinguished the earlier case of Valia Ambu Poduval v. Emperor (1907) 4 Cri LJ 443 (Mad) (supra) and hat observed that the appeal would lie before the Sessions Judge within whose jurisdiction the offence was committed. Raghubar Dayal, J. (as he then was) in Lalta Prasad v. State : AIR1952All70 , following the later Madras case has held that the appeal against the conviction passed by a Special Magistrate would lie before the Sessions Judge within whose jurisdiction the offence was committed. The expression 'inferior Criminal Court situate within the local limits of its or his jurisdiction' means an inferior Court exercising jurisdiction within the local limits of its or his jurisdiction. The Old Code of Criminal Procedure did not provide for location of the Courts of the Magistrates and did not authorise anyone to order such location. This view has been followed by a Single Bench of the Kerala High Court in K. C. Paipal v. State of Kerala : AIR1962Ker242 ; a Division Bench of the Bombay High Court in Narayandas Daga v. State of Maharashtra. (1964) 66 Bom LR 17; and a Single Bench of the Gujarat High Court in D. C Verma v. Bhagwanji Virji, (1976) 17 Guj LR 412.
10. However, we feel that now there is no scope for any controversy. Under Section 6 of the New Code, classes of Criminal Courts, besides the High Courts and the Courts constituted under any law, other than this Code, and outside the Metropolitan area, are Courts of Session; Judicial Magistrates of the first class; Judicial Magistrates of the second class; and Executive Magistrates. Under Section 7 every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts. .Under Section 9 the State Government shall establish a Court of Session for every sessions division and every Court of Session shall be presided over by a Sessions Judge and there may also be Additional Sessions Judge and Assistant Sessiatas Judges. Under Section 11, every district (not being a metropolitan area). there shall be established as many Courts of Judicial Magistrates of the First class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification specify. The Presiding Officer of such Courts shall be appointed by the High Court. Under Section 12, in every district there shall be a Chief Judicial Magistrate and in addition there may be Additional Chief Judicial Magistrates. Under Section 13, Special Judicial Magistrates of the second class can be appointed by the High Court in respect to particular cases or to particular classes of cases or to cases generally, in any district not being a metropolitan area. Under Section 14. the local jurisdiction of Judicial Magistrates, subject to the control o the High Court, has to be defined from time to time by the Chief Judicial Magistrate. Under Section 15, every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
11. In the present cases Shri L. S. Nihalani was the Judicial Magistrate, First Class, of Bhopal and each of 20 other districts and Shri D. S. Pathak was the Judicial Magistrate First Class, of Sarguja and each of 23 other districts. Both were especially empowered to try cases instituted by the Special Police Establishment arising in those districts with headquarters at Indore and Jabalpur respectively. Shri L. S. Nihalani was subordinate to the Sessions Judge, Bhopal, and Shri D. S. Pathak was subordinate to the Sessions Judge, Ambikapur of Sarguja district in respect of offences respectively committed in those districts. Though, the respective headquarters of these two Magistrates were at Indore and Jabalpur, they functioned as Judicial Magistrates, First Class, of Bhopal and Sarguja respectively in respect of these cases. Therefore, the appeals against conviction by these two Magistrates would respectively lie before the Sessions Judge at Bhopal and the Sessions Judge at Ambikapur. i. e. before the Sessions Judges in respect of offences committed within their respective territorial jurisdictions. Question No. 3 is answered accordingly.
12. Now, regarding questions Nos. 1 and 2, it has been rightly urged by the learned Advocate General that strictly speaking these two questions do not arise in the present cases and, therefore, we need not answer these two questions. Section 462 of the New Code and Section 431 of the Old Code provide that 'no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice1. Therefore, even if we proceed with the assumption that Shri L. S. Nihalani should have tried the present case before him at Bhopal and not at Indore and Shri D. S. Pathak should have tried the three cases before him at Sarguja and not at Jabalpur, still in view of these provisions the trial would not be vitiated unless it has occasioned a failure of justice. Nothing has been brought to our notice, which could show that there was a failure of justice because of trial of these cases outside the districts, where the offences were committed. Objection, if any. should have been raised during the trial and it could not be permitted to be agitated at the appellate stage. The Supreme Court in Ram Chandra Prasad v. State of Bihar : 1961CriLJ811 has held that the trial of the offence arising at Dhanbad by a Special Judge at Patna, court not be set aside on the ground of its having no territorial jurisdiction to try the case when no failure of justice had actually taken place-This view has been reiterated by the Supreme Court in Nasiruddin Khan v. State of Bihar : 1973CriLJ241 by observing that the trial at Patna of personnel of Bihar Military Police for offence of deserting in Kashmir is not vitiated when there is no prejudice caused to the accused thereby and in the absence of any provision showing that under some law some other Court had exclusive jurisdiction to try him. A Division Bench of the Nagpur High Court in Diwan Singh v. Emperor AIR 1936 Nag 55 : 37 Cri LJ 474 has held that in view of Section 531 (Old Code), the trial and conviction by the Hoshangabad Court of the offence committed at Delhi cannot be set aside when no prejudice has been caused to the accused.
13. We may, however, point out certain lacunae in Section 13 of the New Code, which corresponds to Section 14 of the Old Code. In the New Code a Special Magistrate of the second class can alone be appointed to try particular cases or particular classes of cases or cases generally in any district while under the Old Code the Special Magistrate of first, second and third class can be appointed for any 'local urea', which may extend even beyond one district and comprise even the whole State. This defect has been noticed by a Single Bench of the Allahabad High Court in T. S. Bajpai v. K. K- Ganguly, 1976 Cri LJ 514 wherein it has been observed thus (at p. 515):
The Chief Judicial Magistrate Lucknow was appointed as Special Magistrate, Anti-Corruption, under Section 14 of 1898 Code for all Districts of U. P. to try cases filed by Special Police Establishment and the case against the accused for an offence under Section 400, Penal Code, committed in Etawah District was pending before him when the 1973 Code came into force and the Govt. by Notification dated 20-4-1974 issued under Section 11(1) established a common Court of Judicial Magistrate. F- C. for all Districts dU. P. with place of sitting at Lucknow to try cases filed by the Special Police Establishment and the High Court by Notification dated 7-5-1974 issued under Section 11(2) appointed N, the Chief Judicial Magistrate, Lucknow, as Presiding Officer of the aforesaid common Court with effect from 1-4-1974 with headquarters at Lucknow, it was held that:
(1) Since there was no provision in the 1973 Code corresponding to Section 14 of 1898 Code, the Court of Special Magistrate ceased to exist on 1-4-74 when the New Code came into force and could not continue thereafter under Section 484 (a)(b).
(2) Under Section 11(1) the Govt. had no power to establish a common Court of Judicial Magistrate F C. for all Districts of U. P. and under Section 11(2) the High Court had no power to appoint Presiding Officer of such Court and, therefore, the Govt. Notification under Section 11(1) and the High Court Notification under Section 11(2) were illegal.
(3) In the absence of the aforesaid Notifications the Chief Judicial Magistrate, Lucknow, had no jurisdiction to try the case under Section 409, Penal Code, as the offence was committed in the Etawah District and the trial could take place only in the Court of Judicial Magistrate of Etawah under Section 177.
14. It appears that after this decision, Section 13 of the New Code was amended by the local amendment introduced by the State of Uttar Pradesh to make this Section similar to Section 14 of the Old Code by adding 'Magistrate First Class and substituting the word 'local area' for the word 'in any district'. If there is similar amendment introduceI by the State of Madhya Pradesh, there cannot be. any difficulty in appointing Special Magistrate of First class for more than one district. Section 11 of the New Code provides that in every district there shall be established as many Courts of Judicial Magistrates of the first class and of the second class and at such places, as the State Government may, atter consultation with the High Court, by notification specify. It is open to question whether location of the Court of Judicial Magistrate for a particular district could be at a place outside the district. However, we express no opinion in regard to questions Nos. 1 atul 2, as they do not arise in the present cases.
15. The references are accordingly answered by us.