1. Shri Sukhraj Bahadur, a Magistrate of 2nd class, was transferred to Ambala on 3-1-1955. On 22-1-1955 he passed an order under Section 488, Criminal P.C. directing a husband to pay a sum of Rs. 20/- permensem by way of an allowance for the maintenance of his wife. The husband challenged the validity of the order on the ground that the learned Magistrate did not exercise the powers of a Magistrate of the first class on 22-1-1955 and consequently that the order passed by him on that date was void and of no effect. The learned Sessions Judge recommends that the order in question be set aside.
2. The notification by which Shri Sukhraj Bahadur was invested with the powers of a Magistrate of the first class is dated 3-1-1955. A copy of this notification was sent to Shri Sukhraj Bahadur on 8-2-1955 and it was published in the local official Gazette on 18-2-1955. Sub-section (2) of Section 39, Criminal P.C. declares that an order conferring Magisterial powers on a person shall take effect on the day on which it is communicated to the person concerned.
The expression 'communicate is not synonymous with the expression 'publish'', which means ''to make public'. It means ''to bestow convey, make known, recount, to impart as to communicate information to anyone''. As the order in the present case was not communicated to Shri Sukhraj Bahadur till 8-2-1955 and as he did not exercise the powers of a Magistrate of the first class before that date, it seems to me that it was not within his competence to make an order under Section 488, Criminal P.C. on 22-1-1955.
3. For these reasons I would accept the recommendation of the learned Sessions Judge and set aside the order dated 22-1-1955.