1. We have to deal first with an objection to the competence of the Special Magistrate, by whom the appellants 1 to 6 accused, have been convicted. The only persons, who under Ordinance 1 of 1922, Section 4(2)(b) can legally be appointed Special Magistrates, are 'magistrates who have exercised the powers of a first class Magistrate for not less than two years. 'M.R. Ry Dewan Bahadur C. Gopalan Nayar the Special Magistrate here in question, was, as the order appointing him, dated 1-7-1922, shows, on that date a retired Deputy Collector. It is not disputed by Mr. Pocker tor the accused, that he had before and up to his retirement exercised first class powers for not less than two years. The objection to his appointment is that he was not on 1-7-1922 a Magistrate, because his retirement bad determined his magisterial powers.
2. The learned Public Prosecutor hardly disputes that only a person, who is already a magistrate, is eligible for appointment as Special Magistrate; and that is clearly entailed by the wording of the section. He contends that, as M.R. Ry C. Gopalan Nayar was a Magistrate on the date of his retirement and was never deprived of his magisterial powers, he continued to be one, those powers being merely in abeyance in the absence of any local jurisdiction, wherein they could be exercised, and that he was one for the purpose of the section.
3. The definition of 'magistrate' in the General Clauses Act (X of 1897), Section 3(31) is applicable to the interpretation only of Acts and Regulations, not: of an. Ordinance, and is statedly not exhaustive, and there is no definition in the Criminal Procedure Code. The only references in that Code to the termination of the powers of a person, who has been made a Magistrate, are in Section 26 to the removal of such persons from office and in Section 41 to the withdrawal of the powers conferred on him by the Local Goverment or the District Magistrate and it is not alleged that any such action has been taken in the case of M.R. Ry C. Gopalan Nayar. But under Section 12, Subordinate Magistrates can be appointed only as Magistrates in a district, their powers, if they are in Government service, being continued under Section 40 in case of transfer to a different local area.
4. This is inconsistent with the view, for which the learned Public Prosecutor contends, since it follows from it that magisterial powers are recognised by the Code as subsisting only so long as the district or local area, in which they can be exercised, although not necessarily that for which they were originally conferred, can be ascertained. The suggestion that, where no such district or area is aseertainable, the powers are in abeyance is not, so far as we have been shown, supported affirmatively by any provision of the Code and it can hardly claim even negative support from the absence of any provision for the lapse of powers, where except in the events to be referred to no necessity for such provision will ordinarily arise. As regards one of such events, the temporary absence of a Magistrate on leave, authority is available. For in In the matter of Piirasoram Borooah I.L.R.(1876) Cal. 117 the learned judge who dealt with the point, referred to the possibility that 'what really vacated an office was not the going on leave, but the appointment of another person to it, 'although he held on other grounds that the section or the Code then in force, corresponding with the present Section 40, was not applicable to the case under decision; and in Harku v. Sit ram Kaliyan (1909) 11 Bom. L.R. 536 it was held explicitly that a Magistrate's absence on leave made no difference to his right under Section 40 to exercise the powers conferred on him in the local areas, to which on his return from various periods of leave he was transferred. The latter decision was reached with reference to the fact, also referred to in the former, that an officer on leave under the Civil Service Regulations retains a lien either on his appointment or on one of similar character; and the conclusion suggested in the one case and reached in the other is by this construction reconcilable with the principle, which Sections 12 and 41 entail, that magisterial powers continue, so long as connection with a district or local area can be regarded as maintained. Another class of cases, more similar to that under our consideration, consists in those, in which the officer is appointed permanently to other duties in the Secretariat or elsewhere, dissociated from magisterial work, and retains no sort of connection with a district or local area, in which he can exercise powers. Authority regarding the necessity for again conferring powers on him on his return to a district is wanting. But we have ascertained that in each of these classes of cases the practice of Government is in accordance with the principle just referred to. That is to say: powers are not conferred again, where an officer has left a district on leave and returns to the same district or another, whilst they are, if his absence on other duty has entitled his dissociation from the work of a magistrate and he returns to it, his appointment to that duty involving an implicit withdrawal of his powers. Such an implicit withdrawel is contemplated in Harku v. Sitram Kaliyan (1909) 11 Bom. L.R. 536 in the reference to the contingency that the magistrate there in question had by absence without leave or after the end of leave lost his appointment. And such a withdrawal must follow from the resignation of an appointment or its termination, such as occurred in the case of M.R. Ry C. Gopalan Nayar, in as much as his connection with any district or local area, in respect of which his powers could with reference to Section 12 be regarded as subsisting then came to an end. The conclusion must be that M.R. Ry.C. Gopalan Nayar had ceased to be a magistrate and was not one, when he was appointed a Special Magistrate under the Ordinance. His appointment was therefore invalid.
5. The result is that the appellants have not been tried by a legally constituted Court, that their convictions must be set aside and that they must be retried by the Special Magistrate of Malapuram.