1. This rule raises a short but somewhat interesting point. The question is, whether the Diara known as the Mutier Diara lies in the Balia or Sarun district. That depends upon what the boundary line of these two districts is. Now, we find that by a notification of the Government of India, dated the 5th of December 1888, it was declared: 'That the deep stream of the Gogra is the boundary between the Balia district in the North-Western Provinces and the Sarun district in Bengal, up to the point where the boundary line between mouzah Ibrahimabad Nanhara in Balia, and mouzah Shitab Diara in Bengal, meets that river.'
2. The Sessions Judge finds: 'The Government have frequently notified that the deep stream of the Gogra is the boundary between the two districts. Now at present, and apparently for a year or two, Mutier Diara is an island with a deep stream north of it, and another south of it. This latter is both wide and deep, but the stream north is a trifle deeper and seems more like the main stream.'
3. The contention of the learned Vakil for the petitioner is that, inasmuch as the stream to the north is the deeper of the two streams, that is the 'deep stream' within the meaning of the notification of December 1888, in which case this island would be in the Balia and not in the Sarun district, and the Magistrate in the latter district would have no jurisdiction to entertain the complaint. But I think the 'deep stream' spoken of in the notification of December 1888 must be the deep stream as it then existed, that is ten years ago. It is a matter of notoriety that the channels of Indian rivers change very materially, and often in a very short time. What was the deep stream in 1888 may not be the deep stream of 1897, and it is consequently difficult for us to say what really is the deep stream which forms the boundary between the two districts. There is an uncertainty in the matter, and if there is such uncertainty, what is the course to be pursued? In my judgment we can invoke the assistance of Section 182 of the Criminal Procedure Code, which lays down: 'When it is uncertain in which of several local areas an offence is committed it may be inquired into or tried by a Court having jurisdiction over any of such local areas.'
4. I ought to have stated that the alleged offence took place in April 1897 and that processes were applied for on the following day in the Sarun district.
5. It is urged by the learned Vakil for the petitioner that the words 'in which of several local areas' does not apply to any uncertainty as to the district, but uncertainty as to the particular spot upon which the alleged offence was committed. That would be a very narrow construction to put upon the section, and treats the term 'local area' as synonymous with the term 'spot.' In my opinion the expression 'local area' includes and was intended to include a 'district,' and this view is fortified by a reference to the language of Section 531 of the Criminal Procedure Code.
6. In my opinion then, there is, for the reasons I have stated, sufficient uncertainty as to which is the true boundary between these two districts, and there being that uncertainty, Section 182 applies, arid it is competent for the Court in the Sarun district to inquire into this matter.
7. I may make a passing allusion to an argument of the learned Vakil for the petitioner that we must read into Section 182 the marginal note to that section: in other words, that we must construe the Section with reference to the marginal note. I decline to accept that view. It has been decided in the English Courts, and I believe in this Court as well, that the marginal notes do not form part of the section, and cannot be referred to for the purpose of construing the section.
8. For these reasons I think that the Court in the Sarun district is competent to inquire into this matter, and the rule will accordingly be discharged.
9. I am of the same opinion. We have been asked to set aside the order of the Court below directing that the case should be tried in the Sarun district in which it has been instituted, on the ground that upon the facts found by the learned Sessions Judge in his decision of the 23rd April last, it is the Court in the district of Balia, and not that in the Sarun district, that has jurisdiction to try this case under Section 177 of the Criminal Procedure Code.
10. It is not disputed that the offence complained of, namely, that of rioting, is alleged to have been committed in an island chur called Mutier Diara, and that the island chur is situated in the River Gogra in that part of it which forms the boundary between the districts of Sarun and Balia, according to the notification of the Government of India.
11. That notification, which is dated some time in the year 1888, is to the effect that the deep stream of the River Gogra is the boundary between the Balia and Sarun districts; and the learned Sessions Judge has found that of the two streams of the River Gogra, running north and south of chur Mutier Diara, the one on the north is a little deeper than that on the south. This would at first sight go to show that the Mutier Diara appertains to the district of Balia and not to that of Sarun. The learned Sessions Judge, however, is of opinion that in a matter like this, the question of convenience is to be taken into consideration, and upon that consideration he has held that the Sarun Court has jurisdiction to try this case.
12. I am unable to accept this view of the matter as correct. But at the same time I do not think that the jurisdiction appertains to the district of Balia as contended for by the learned Vakil for the petitioner.
13. It is quite true that every offence, as provided by Section 177 of the Criminal Procedure Code, shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. The offence here is alleged to have been committed in the island chur, Mutier Diara; and if that chur appertains to the district of Balia it is the Balia Court and not the Sarun Court which would be competent to try the case. But is it clear that Mutier Diara appertains to the district of Balia? It is at any rate open to doubt whether the notification of 5th December 1888 referred to above should bear the construction sought to put upon it by the learned Vakil for the petitioner, namely, that the deep stream of the Gogra, the position of which may shift from time to time, is the boundary between Balia and Sarun. The notification may well be understood to mean that the boundary between Balia and Sarun would be the deep stream, as it existed at the date of the notification, and that this would continue to be the boundary until the Government thought fit to alter it by a farther notification. Moreover, it is doubtful whether the notification was intended to meet a contingency like the present where two streams, one to the north and the other to the south, are both deep, with this difference that one is a trifle deeper than the other, as the learned Sessions Judge has found. Again, it is not certain what the position of this boundary was in 1888 with reference to the chur Mutier. In other words, it is not clear whether the chur, accepting the boundary to be the deep stream of the river, as it existed in 1888, fell on the Balia or the Sarun side of the boundary. Nor would the Sessions Judge's finding, even upon the view of the notification which the learned Vakil for the petitioner asks us to adopt, be enough to remove the uncertainty, for although the stream on the north may be the deeper of the two on the 23rd April 1898, or the time when the investigation was made, still that would not go to show which of the two streams was the deeper one in April 1897, the time when the alleged offence was committed.
14. Therefore in any view of the case the uncertainty remains as to whether, this chur appertains to Balia or Sarun. That being so, the question is how is jurisdiction to be determined in a matter like this? I am of opinion that the question is answered by Section 182 of the Criminal Procedure Code, which says: 'When it is uncertain in which of several local areas an offence is committed, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.'
15. The learned Vakil for the petitioner contends that this Section cannot apply to a case like the present, because the expression 'local area' is not equivalent to 'district,' and there is no uncertainty here as to the spot in which the offence was committed, the uncertainty being as to the district in which the case should be tried. In other words, the learned Vakil's contention is that 'local area' in Section 182 means a spot and not a district or province. He may be right so far that the expression 'local area' may comprehend not only a district or province, but also a spot; but his contention is not right so far as it seeks to restrict the expression 'local area' to the spot where the offence was committed. And that his contention is not right is evident from Section 531, that Section clearly showing that a Sessions Division, District, or Sub-Division is, within the meaning of the Act, intended to be included in the term 'local area.'
16. Lastly, it was contended that the marginal note to Section 182 would militate against the view we take. The answer to that is that the marginal note is no part of the Act, as has been pointed out in Sutton v. Sutton (1882) L. R. 22 Ch. D. 511 and Dukhi Mullah v. Halway (1895) I.L.R. 23 Cal. 55. I therefore, hold that as there is an uncertainty in the matter, the case is governed by Section 182, and the offence is, therefore, triable in the Court having jurisdiction either over Sarun or over Balia.
17. The result is that as the Sarun Court has jurisdiction, this case will be tried there, and the rule will be discharged.