1. This is a reference made by the learned District Magistrate of Burdwan. One Panchanon Mondal was convicted by the Subdivisional Magistrate of Asansol and then he appealed to the Sessions Judge and the appeal was dismissed. His case is that he subsequently came to learn that the Subdivisional Officer was exercising powers of a Magistrate of the Second Class and he then filed an appeal in the Court of the District Magistrate. The District Magistrate then made this reference. I must point out that the reference is misconceived and irregular. The learned Magistrate has not sent up, for the consideration of this Court, some proceedings that arose in another Court subordinate to him; he is really asking the advice of this Court on the question whether he ought to hear the appeal or whether he ought to dismiss it. Technically, the reference might fail on that ground; but inasmuch as the case is bound to come before this Court sooner or later I do not propose to take that course.
2. There can be no question in view of the provisions of Section 530, Criminal P.C., that the proceedings before the Sessions Judge were void. But a further question that arises for consideration is whether, though void, they can be ignored entirely or whether they have to be set aside by this Court. Now, that matter was considered by the Chief Court of Rangoon in Queen-Empress v. Husein Gaibu (1884) 8 Bom 307. It was there held that an order which was void for want of jurisdiction must nevertheless be regarded as valid unless it is set aside by a Court of competent jurisdiction. I respectfully agree with that decision. It is only necessary to examine the present case upon the supposition that the learned Sessions Judge had allowed the appeal instead of dismissing it. It would be a most dangerous doctrine to hold that the District Magistrate would have been entitled to treat the decision of the Sessions Judge as a nullity and to proceed to levy the fine from the successful appellant. A further practical difficulty is that the question will always arise whether the order which is said to be void is really void or not; and it is certainly not for a Magistrate to say that an order of the Sessions Judge can be ignored altogether.
3. In the course of the argument the learned Deputy Legal Remembrancer drew my attention to Queen-Empress v. Husein Gaibu (1884) 8 Bom 307. The learned Judges there were not dealing with the hearing of an appeal by a Court having no jurisdiction to hear it. They were dealing with the application of Section 403, Criminal P.C. The judgment is extremely short. The case was not argued and no reasons are given for the decision. The decision is that Section 403 had no application when an order of acquittal has been passed by a Court without jurisdiction. With great respect, speaking for myself, I should very much doubt whether that decision is correct; but it certainly does not apply to the actual facts of the present case.
4. Now, in dealing with the present point, the learned Judges of the Chief Court of Lower Burma pointed out that it is not imperative on the High Court to set aside an order made on appeal without jurisdiction. With that opinion I also respectfully agree. Therefore, strictly speaking, before filing his appeal in the Court of the District Magistrate the accused person Panchanon Mondal ought first to have applied to this Court to set aside the order of the Sessions Judge. It is to be noted that it is Panchanon himself who went to the wrong Court, and it might be that in the absence of a satisfactory explanation for his so doing this Court might refuse to interfere. Here again it would lead to mere waste of time if I were to order the District Magistrate to dismiss the appeal as incompetent and then leave it to Panchanon Mondal to apply to this Court to set aside the order of the Sessions Judge. In the present state of the matter it is, in my opinion, desirable that it should be finally settled. The order I make on this reference therefore is that I set aside the order of the Sessions Judge dismissing the appeal of Panchanon Mondal and direct the District Magistrate to hear his appeal and dispose of it in accordance with law.