1. We have to deal first with an objection to the competence of the Special Magistrate by whom the appellants Nos. 1 to 6 accused, have been convicted. The only persons who, under Ordinance I of 1922, Section 4(2)(6), 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 1st July 1922, shows on that date a retired Deputy Collector. It is not disputed by Mr. Pocker for the accused that he had before and up to his retirement exercised first class powers for not less than 2 years. The objection to his appointment is that he was not on 1st July 1923 a Magistrate, because his retirement had 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 terminations 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 Government 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 Sub-Divisional Magistrates can be appointed only as Magistrates in a District, their powers, if they are in Govern ment service, being continued under Section 40 in the case of transfer to a different local area. This is inconsistent with the view for which the learned Public Prosecutor contends, since it follows from it that the 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 ascertainable, 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 sup port 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 the matter of Pursooram Borooah 2 C. 117 : Ind. Jur. 312 : 1 Ind. Dec. 371 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 of the Code in force, corresponding with the present Section 40 was not applicable to the case tinder decision; and in Bat Harku v. Sitaram Kalian 2 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 reconcdable with the principle, which, Sections 12 and 41 entail, that Magisterial powers continue, as long as connection with a district or a local area can be regarded as maintained. Another class of cases, more similar to that under our consideration, consists of those, in which the officer is appointed permanently to the 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 entailed 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 withdrawal is contemplated in Bai Harku v. Sitaram Kalian 2 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, inasmuch 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.
4. 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 re-tried by the Special Magistrate of Malapuram.