1. The facts of this case so far as they are necessary to state them for the purposes of this appeal, are as follows:
2. One Sadananda Patnaik was convicted by the 1st class Magistrate of the Gumsoor Sub. Division, Ganjam, of an offence punishable under Section 161 I.P.C. On appeal the Sessions Judge of the Ganjam Session Division acquitted him. Against this acquittal the Public Prosecutor appeals on behalf of Government on the ground thai the Sessions Judge of the Ganjam Sessions Division had no jurisdiction to entertain the appeal. The offence was committed at Baliguda which is in the Ganjam Agency tracts. The case was transferred by the Agent to and was tried by the 1st class Magistrate of the Gumsoor Sub. Division who had local Criminal jurisdication over certain Agency tracts as well as over certain non-Agency tracts. The argument for the appellant is that tha Agent transferred the case to the 1st class Magistrate for trial in his capacity as a, 1st class Magistrate of the Agency, not as a first class Magistrate of the non-agency portion of his Sub-Division and that an appeal lies from his decision as an Agency Magistrate to the agent as Sessions Judge of the Agency tracts but not to the Sessions Judge of the Ganjam Sessions Division.
3. We think that this contention must b;: upheld. By Section 3 of Act XXIV of 1839 the administration of civil and criminal Justice and the collection of revenue in certain specified tracts, (which for convenience may be called the Agency tracts), which were at that time included in the District (i. c, the revenue District) of Ganjam, were vested in the Collector of Ganjam and it was ordered that his powers in these matters should be exercised by him as agent to the Governor of Fort Saint George who was given power (Section 4) to make rules for the guidance of the Agent and his subordinate officers and also (Section 8) to alter th:> limits of the Agency tracts.
4. By Notification dated 28th July 1843 (see page 165 of Vol. I Madras Local Rules and Orders) issued under the authority of Section 1 of Act VII of 1843 the then existing civil and Criminal Courts throughout the Presidency of Madras (with certain exceptions) were abolished and new Courts called Zilbh Courts were established (Section 3) presided over by a civil and sessions Judge of a Zillah. The general scheme (Section 6) provided for a Zillah Court for each collectorate, but in regard to the coll.-iotorafca of the G.mjam it was provided that the Jurisdiction of the Zillah and Sessions Court at Chicacole (a town in the Ganjam collectorate)(-should extend over such parts of the collectorate of Ganjam as have not by Act XXIV of 1839 been withdrawn from the operation of the general regulation.
5. Under the power given by S. I of the Act of 1839 certain rules for the administration of justice and the collection of Revenue in the Agency tracts were promulgated (see page 232 of vol I Madras Local Rules and orders). In 1861 the first Code of Criminal Procedure was passed (Act XXV of 1861). It enacted (Section 14)that ' the words ' Magistrate of the District' shall mean the: chief officer charged with the executive administration of a District in criminal matters by whatever designation such officer is called ' and also (Section 18) that thj local jurisdiction of thu-3 Magistrate of a District, shall, for tbe purposes of this Act, be deemed a ' District ' and the local jurisdiction in a particular part of a District vested in a Magistrate other thin the Magistrate of the District shall be deemed ' a Division of a District.' The Code came into force in the non-agency portion of Ganjam on the 1st January 1862. From that date the agency portion and the non-agency portion must be regarded as separate Districts for the purposes of the Code of Criminal Procedure. By notifications dated 29th January and 17th Feby. 1862 under Section 445 of this Code its operation was extended to the Agency tracts of Ganjam and Vizagapatatr: respectively. By Notification dated the 6th January 1863 (See page 239 of vol I Madras Local Rules and Orders) so much of the rules framed under Act XXIV of 1839 as related to criminal justice was cancelled and the 'Agent in Ganjam' was in the Agency tracts 'authorised to exercise the powers of a Sessions Judge in addition to those belonging to a Magistrate of a District under the Code of Criminal Procedure.' The result of these various enactments, notifications and rules was that the old Collectorate of Ganjam was divided for the purposes of administration into two areas viz., the Agency fcracis and the non-Agency (or Regulation) tracts. Different sets of laws and regulation or rules were in force in these two tracts, though for convenience the same officers were usually appointed to administer the laws and conduct the administration in both tracts simultaneously. The person who was Collector exercised the chief revenue functions as Collector in the non-Agency tracts and as agent of the Governor in the Agency tracts and he was also District Magistrate of both areas. Each area was for Magisterial purposes a separate District just as eacharea was a separate Sessions Division in one of which (the agency tracts) the Collector, in his capacity as Agent, was also Sessions Judge, while in the other (i.e., the non-Agency tracts) there was a separate Zillah and the Sessions Judge sitting at Chicacole. It is unnecessary to refer to the Criminal Procedure Codes of 1872 and 1882. By Section 6 of the Scheduled Districts Act, 1874, the Local Government was authorized from time to time.
(a) to appoint officers to administer inter alia Criminal Justice in the scheduled Districts which included the Agency tracts of Ganjam,
(b) to regulate the procedure of such officer and
(c) to direct by what authority any Jurisdiction should be exercised and by Section 7 of the Act all these existing rules prescribed by the Governor-General in Council or the Local Government for the guidance of officers appointed for any of the purposes mentioned in Section 6 were continued in force and all existing officers were deemed to have been appointed under Section 6.
6. By Notification dated 4th July 1898, issued under Section 3 of the Act of 1874, the Criminal Procedure Code of 1898 was declared to be in force in the Agency tracts of Ganjam (See page 64 to 66 vol. I, Madras Local Rules and Orders). By Section 7 (3) of that Code the then existing Sessions Divisions and Districts were continued and by Section 8 (2) all the then existing Sub-Divisions which are now usually put under the charge of a Magistrate shall be deemed to have been made under this Code.'
7. We thus see, as already stated that for Magisterial as well as for Judicial and Revenue Administration, the old Ganjam Collectorate was long ago divided into an Agency District and a non-Agency District and the Agency District is also a Sessions Division the Session Judge of which is the Agent himself. The Non-Agency District is, for the purposes of the Code of Criminal Procedure quite distinct from the Agency District, though the same person is'the District'Magistrate of both. In the same way the Gumsoor Sub-Division consisting as it does of a part of the Agency District and of a part of the Non-Agency District, must for the purposes of the Code, be regarded as consisting of two Sub-Divisions though the same First class Magistrate has jurisdiction in both. When the District Magistrate transferred the present case from th? Agency Magistrate in whose local jurisdiction it originated he could only do so as District Magistrate of the Agency District and he must be held to have transferred it to the Gumsoor Sub-Divisional Magistrate as Sub-Divisional Magistrate of the Sab-Division in the Agency District though this does not specifically appear in the order of transfer. The Sub-Divisional Magistrate, however, appears to have been conscious of the true position, since he numbered the case as 'Agency calendar case 2 of 1911' and it may also be noted that the Agency Magistrate in whose jurisdiction the case arose, in asking the District Magistrate to transfer the case, asked him to transfer it to the ' ' Agency Deputy Magistrate, Russelkonia ' that is in other words, to the Sub-Divisional Magistrate of Gumsoor, (whose head-quarters are at Russelkonda) in his capicity as a first class Sub-Divisional Magistrate of the Agency District. The Magistrates of the Agency District are not, as such, in any way, subordinate to the Sessions Court of the Non-Agency Sessions Division of Ganjam; nor does the fact that the same person is a first class Sub-Divisional Magistrate in both Districts, make him subordinate to the Sessions Court of the Ganjam Sessions Division in regard to the Magistrate's jurisdiction in the Agency District. The decision in Valia Ambu Poduval v. The Emperor I.L.R. (1906) M. 136 relied by the Sessions Judge in the present case is not in point since it expressly provided on the footing that, notwithstanding the language of Section 7 of the Criminal Procedure Code, there were in that case two Sessions Divisions in the same District. We must, therefore, hold that the Sessions Judge in the present case had no jurisdiction to hear the appeal which should have been made not to him, but to the Agent. We must allow the appeal and set aside the acquittal. On the merits, however, we think the decision of the Sessions Judge was right and the Public Prosecutor has not thought ifc necessary to argue in support of the conviction. As a Court of revision we set aside the conviction by the Magistrate.
8. We may add that it would be well if the District and the Sub-Divisional Magistrates in the Agency and the non-Agency Districts of Ganjam, would, in future, bear in mind their several capacities with references to the language of the Code of Criminal Procedure and indicate clearly on the face of their proceedings the capacity in which they act from time to time.
9. In the present case the first class Magistrate of the Gumsoor Sub-Division is referred to by the Special Assistant Agent as ' the Agency Deputy Magistrate Russelkonda,' by the District Magistrate as the 'General Deputy Magistrate Gumsoor' and by the Magistrate himself as the ' Deputy Magistrate Gumsoor Division '--' Deputy Magistrate ' and ' General Deputy Magistrate;' these, we may point out are titles unknown to the Code of Criminal Procedure.
10. It would also be well if the distinction between the Agency and Non-Agency Districts in the Judicial use of the term is borne in mind in the Notification of Government.