S.K. Ghose, J.
1. The nine petitioners in this case were convicted under Sections 147, and 448, I.P.C., and each of them was sentenced to pay a fine of Rs. 50 and in default to undergo rigorous imprisonment for three months. The trial began before Mr. G. C. Mondal, Deputy Magistrate with second class powers on 15th April 1931 and the evidence closed on the 15th June following. Arguments were heard on 24th June and judgment was delivered on 30th June. Ordinarily the appeal would lie to the District Magistrate under Section 407, Criminal P.C., but it so happened that by Government. Order No. 1153-A. D. of 15th June 1931 the Magistrate was vested with powers of a Magistrate of the First Class. When the petitioners filed the appeal before the Additional District Magistrate, the latter directed that it should be returned for presentation before the Sessions Judge as the Magistrate was a Magistrate of the First Class and no appeal lay to the District Magistrate. The learned Judge, treating this as a matter of revision, refused to interfere.
2. The Rule was issued on the ground that, having regard to the fact that the entire evidence in the case as well as the arguments of both parties were heard by the trial Magistrate while he had second class powers and that he was vested with first class powers while giving judgment, the Additional Magistrate ought to have entertained the appeal under Sections 366, 407 and 408, Criminal P.C. The learned Magistrate in the explanation submits that the trial Magistrate was actually vested with the powers of a Magistrate of the First Clase by the Government Order dated 15th June 1931. Under Section 39 (2), Criminal P.C., the order shall take effect from the date on which it is communicated to the person so empowered. I take it therefore that the order took effect some day subsequent to the 15th June on which date the trial of the case was practically finished. According to the strict wording of Section 407, if the trial is held by a Magistrate of the Second or the Third Class, the person convicted on such trial may appeal to the District Magistrate. This view was accepted in the case of Emperor v. Nga Paw  8 Cr. L. J. 48 which was cited and not dissented from in the case of Sheobhanjan Singh v. Emperor A.I.R. 1925 Pat. 472. In this case, as also in the case of Emperor v. Manganlal Jhaverchand A.I.R. 1927 Bom. 366 it was held that an appeal lay to the Court of Session and not to the District Magistrate, But in both these cases the decision was based on the ground that a great part of the trial took place after the Magistrate had been vested with First Class powers. That is not the case here, and that being so I do not see why the petitioners should be deprived of the right of appeal. I consider that in this case the petitioners have a right of appeal to the District Magistrate under the provisions of Section 407, Criminal P.C.
3. The order of the District Magistrate bearing date 30th June 1931 by which the petition of appeal was directed to be returned to the Sessions Judge is set aside and the appeal is directed to be heard by the District Magistrate or the Additional District Magistrate as may be convenient.
4. Pending the decision of the appeal the order under Section 522(2), Criminal P. C, and the realization of the fines will be stayed.
5. The Rule is made absolute accordingly.