1. Two Rules have been issued, one No. 529 and the other No 560, and they were in connection with certain proceedings which were taken against one Ganpat Rai Khemka, who was alleged to have committed a breach of the provisions contained in Section 83 of the Calcutta Port Act of 1890, and to have committed an offence under Section 84, The proceedings were taken before Mr. Das Gupta, who on the 8th of May of this year was acting, as we are informed, on behalf of the Chief Presidency Magistrate; and the most important point which has been raised in respect of Rule No. 529 is whether the Presidency Magistrate had jurisdiction over the matter. The alleged offence admittedly took place outside the limits of Calcutta, but admittedly within the limits of the part of Calcutta: and, the argument of the learned Vakil, who obtained the Rule in No. 529, shortly stated, is that although the Presidency Magistrate may have jurisdiction outside the limits of Calcutta but within the limits of the port of Calcutta for certain offences, he has no jurisdiction outside the limits of Calcutta and within the limits) of the port, in respect of offences against the Calcutta Port Act, and he further contended that the intention of the 1890 Port Act was that the trial of offences under that Act should take place before the tribunals especially appointed by that Act. This question depends upon the provisions contained in sections 138 and 139 of the Calcutta Port Act and in my judgment also upon Section 20 of the Code of Criminal. Procedure of 1898. Section 138 of the Calcutta Port Act provides: 'Every charge of an offence against any provision of this Act alleged to have been committed within Calcutta, may be instituted before any Magistrate having jurisdiction.....'That Section makes it clear that an offence committed against any provisions of this Act within the limits of Calcutta might be tried before the Presidency Magistrate. That is not disputed. Then comes Section 139 which provides: Ev6ry charge of an offence against the provisions of this Act...alleged to have been committed out of Calcutta, may be heard and determined by any officer authorized to exercise any of the powers of a Magistrate in the place in which such offence may be alleged to have been committed, according to the provisions of the Code of Criminal Procedure, 1882.' The learned Vakil argued that the last words according to the provisions of the Code of Criminal Procedure, 1882,' regulate the mode of trial. As at present advised, I am inclined to agree with the interpretation whioh the learned Vakil puts upon those words, although that is not necessary for the decision of this case. The learned Vakil has drawn our attention to the difference in language of the two Section in describing the tribunal in Section 138 the words are any Magistrate having jurisdiction,' and in Section 139 the words are any officer authorised to exercise any of the powers of a Magistrate in the place in which such offence may be alleged to have been committed:' and, he has drawn our attention to certain previous Acts which, he contends, show the origin of those words, inasmuch as he pointed out that there were certain person who were authorized to exercise some of the powers of a Magistrate, although they might not be authorized to exercise all the powers of a Magistrate. But to my mind, the difference in the words used in Section 138 and those used in Section 139 does not conclude the point, because the words in Section 139, any officer authorized to exercise any of the powers of a Magistrate in the place' do not specify the tribunal without reference to some other Act, and we have to see what officer is authorized to exercise any of the powers of the Magistrate in the place in which the offence in this case is alleged to have been committed As I have said, admittedly the alleged offence was committed within the limits of the port of Calcutta. When we look at Section 20 of the Criminal Procedure Code, we find as follows: Every Presidency Magistrate shall exercise jurisdiction in all places within the Presidency town for which he is appointed, and within the limits of the port of such town....as such limits are defined under the law for the time being in force for the regulation of ports and port-dues.' Therefore, it seems to me that the Presidency Magistrate is an officer authorized to exercise the powers of a Magistrate within the limits of the port of Calcutta and inasmuch as the offence is alleged to have been committed within such limits, he has jurisdiction to hear the complaint which was lodged against the petitioner.
8. The other Rule No. 560 dealt with the acquittal of Ganpat Bai Khemka. I need not go into all the facts which led up to the acquittal of Ganpat Bai Khemka. It appears, however, that on the 8th of May 1919 the complainant and his Attorney were present in Mr. Da9 Gupta's Court, which Court hid dealt with the case on certain previous, occasions when adjournments were granted: and, without their knowledge the case was called on before the Chief Presidency Magistrate himself, and as the complainant and his Attorney were not present, the Chief Presidency Magistrate acquitted Ganpat Rai Khemka. I think that inasmuch as it was clearly owing to a misunderstanding (for which the complainant and his Attorney were not responsible) that they were not present before the Chief Presidency Magistrate, the order of acquittal ought to be set aside, The result will be that, both parties having agreed that there should not be two trials, the hearing of the first complaint will proceed, and the other complaint, which was lodged afterwards, will be sat aside.
9. Therefore, Rule No. 560 is made absolute; and Rule No. 529 is made absolute to the extent that the second prosecution is quashed.
1. I agree with my Lord the Chief Justice, I only wish to aid something in reply to the argument that if the Presidency Magistrate had jurisdiction under the Criminal Procedure Code to try this offence, it would not have been necessary to make the provisions contained in the first part of Section 138 and the whole of Section 139 of the Calcutta Port Act, HI of 1890. It appears to me that these provisions were made through excess of caution, and were based upon the provisions of Section 29 of the Criminal Procedure Code. That Section provides that trials of offences under laws other than the Indian Penal Code, such as the Port Act, shall, when any Court is mentioned, in this behalf in such law, be tried by such Court. I think the drafters of the Act had that Section in their minds, and thought it desirable to provide in the Act for the tribunal in which offences under it should be tried, and consequently introduced into Section 139 words similar to those in Section 20, with the intention of leaving no doubt that offences under the Act should be tried when committed out of Calcutta but in the port of Calcutta by a Presidency Magistrate who has been authorised to exercise jurisdiction by Section 20 of the Code of Criminal Procedure,Rule No. 529 maie absolute in part; Rule No. 560 made absolute,