1. This is a case referred to us by the District Magistrate of Ganjam under the instructions of Government.
2. A charge of bribery, extortion and criminal intimidation was made against the Sub-Magistrate and Deputy Tahsildar of Narasannapet, and on the 18th September 1890 the District Magistrate of Ganjam reported the same to the Board of Revenue, and was directed by the Board to send the case for trial to some Magistrate (other than himself or the Principal Assistant Magistrate). The case was, therefore, sent for trial to the Senior Assistant Magistrate, Berhampore. The prisoner was convicted under Section 161, Indian Penal Code. The Sessions Judge on appeal reversed the conviction on the merits. It was argued before him by the vakil for the prisoner that the conviction was void on the ground that the Senior Assistant Magistrate had no jurisdiction. This defence, however, the Sessions Judge overruled on the ground that from the list of notifications and rules which have the force of law in this Presidency it does not appear that the Government has passed an order under Section 197, Criminal Procedure Code. The Government did not appeal against the acquittal.
3. Mr. Powell, the Public Prosecutor, now argues that all the proceedings must be set aside, as the Senior Assistant Magistrate had no jurisdiction to try the case, and consequently all the proceedings are void, and he refers us to an order of Government, dated 9th April 1875, which specified, under Section 466 of the Code of Criminal Procedure then in force the Court of Session as the Court before which a Tahsildar and Magistrate or a Deputy Tahsildar and Magistrate shall be tried exclusively. The Government has, however, furnished the High Court with a list of the notifications and rules having the force of law in this presidency revised up to July 1887, and we find no mention of the order of Government, dated 9th April 1875, in this list, and we must presume, therefore, that the order has been repealed or is considered to have ceased to have effect, the Code having been repealed. Mr. Patta-bhirama Ayyar argues that such a Government order under Section 197 of the present Code would be ultra vires, because, as it now stands, the law limits the power of Government to determining, in each particular case as it arises, the person by whom and the manner in which the prosecution of such public servant is to be conducted, and empowers Government to specify the Court before which the trial of a public servant is to be held; whereas in the order of 1875 the Government directed that a class, viz., Tahsildars and Magistrates or Deputy Tahsildars and Magistrates, should be tried only by a Court of Session. This may be so and may explain why the Government order was repealed, if repealed it be.
4. We must decline to interfere on two grounds: (1) it has not been shown that the trial by the Senior Assistant Magistrate was without jurisdiction; (2) the question of jurisdiction was considered by the Sessions Judge and decided adversely to Government and Government has not appealed.