1. This petition raises the question whether Mr. Kalia, a Magistrate of the first class at Gurgaon, was exercising powers under Section 30, Criminal P. C. on 22-7-1955.
2. Mr. Kulia, a Magistrate of the first class in the Karnal District, was invested with enhanced powers under Section 30, Criminal P. C. on 17-10-1952. He was transferred to Gurgaon two years later and on 30-12-1954 the State Government issued a notification under Section 12, Criminal P. C. appointing him a Magistrate of the first class in the Gurgaon District. No notification was issued under Section 30, Criminal P. C.
On 22-7-1955 Mr. Kalia convicted the petitioners in the present case under Section 307/34, Penal Code and sentenced each one of them to four years' rigorous imprisonment. The question is whether by investing Mr. Kalia with powers of a Magistrate of the first class in the Gurgaon District and by omitting to invest him with, enhanced powers under Section 30, Criminal P. C. the State Government can be said to have directed that he shall not exercise enhanced powers under Section 30, Criminal P. C.
3. The notification of 17-10-1952 does not define the limits within which powers under Section 30 were to he exercised by Mr. Kalia and, in the absence of such definition, it must be assumed that his jurisdiction and powers were to 'extend only to the limits of the Karnal District (Section 12 (E) ).
4. If the first class and section 30 powers conferred upon Mr. Kulia were to be exercised only within the limits of the Karnal District, then on his transfer to Gurgaon they could obviously be exercised within the limits of the Gurgaon District, for Section 40, Criminal P. C. declares that if a person, is appointed to an equal or higher office of the same nature within local area under the same State Government he shall continue to exercise the same powers in the local area to which he is so appointed unless Government otherwise directs.
Had Government issued no fresh notification in regard to Mr. Kalia there can be little doubt that on his transfer to Gurgaon he would have continued to exercise the powers of a Magistrate of the first class and enhanced powers under Section 30, Criminal P. C. But Government adopted a somewhat unusal procedure which has given rise to a certain amount of difficulty.
On 30-12-1934 they issued a notification under Section 12 appointing him a Magistrate of the first class in Gurgaon but refrained from issuing one under Section 30, As the express mention of one thing implies the exclusion of another, the express mention of powers of a Magistrate of the first class implies the exclusion of the powers under Section 30, Criminal P. C.
By investing Mr. Kalia with the powers of a Magistrate of the first class in the Gurgaon District and by declining to reinvest him with powers under Section 30 Government manifested an intention on their part that the section 30 powers exercised by Mr. Kalia in the Karnal-District should not be exercised by him on his transfer to the Gurgaon District. It has been held in at least one decided rase that powers may be withdrawn expressly as well as by implication (sic) the matter of, Pursooram Borooah, 2 Cal 117 (A).
5. For these reasons I am of the opinion thethe conviction recorded by Mr. Kalai in the presentcase must be held to be in excess of the powers offerred upon him. I would accept the petition, (sic)aside the orders of the Courts below and direct thatthe petitioners be tried afresh in accordance withthe provisions of law.