1. The petitioners were tried before a Bench of Magistrates at Jugdespore on a charge of an offence under Section 352. The Bench was composed of an Assistant Magistrate with second class powers and three Honorary Magistrates. The former and two of the latter signed the judgment convicting the petitioners, and sentencing them to pay a fine of Rs. 5 each.
2. An appeal was preferred to the District Magistrate, who dismissed the appeal of Wahid Ali and enhanced the sentence of Havaldar Roy by addition of two months' rigorous imprisonment.
3. On motion made by counsel, the proceedings have been sent for and counsel heard on both sides. The first question for our decision is whether any appeal lay to the District Magistrate. This question is raised on behalf of the appellants themselves. In fact, they now assert that their appeal was improperly lodged. Had the sentence not been enhanced, we should not have entertained this objection. The case was tried under the summary procedure (chap, xviii), and if the Bench was invested with first class powers, there would be no appeal: see Section 274 of the Code of Criminal Procedure. Under para. 1 of Government Orders published in Calcutta Gazette, 1873, pages 17 and 662, any Bench of two or more Honorary Magistrates, sitting with a salaried Magistrate exercising not less than second class powers, is vested with first class powers. The case before us was, therefore, tried by a Bench vested with first class powers under that rule. The Deputy Legal Remembrancer has laid before us some orders of Government dated 31st March 1882, modifying other orders dated 31st January 1878, relating to the constitution of Benches in Shahabad. As to the orders of 31st January 1878, we have no information. Those of 31st March 1882 justify us in holding that the Jugdespore Bench under the presidency of a Magistrate (salaried) exercising second class powers, has jurisdiction to try all cases under Section 222 of the Code of Criminal Procedure,--that is, cases triable summarily by a first class Magistrate.
4. We think, therefore, that the District Magistrate was not competent to hear an appeal against the sentence of the Bench, dated 22nd April 1882. We accordingly set aside the order of 3rd May directing that Havaldar Roy be imprisoned for two months. Counsel for the petitioners does not press his case as to the order of the 22nd April, with which, therefore, we do not interfere.