C.C. Ghose, J.
1. This is an appeal by the Local Government against an order made by the Third Presidency Magistrate Mr. Wajed All acquitting the accused Samiulla and five others in respect of an offence alleged to have been committed by them on the high seas before the steamship in which they were employed as members of the crew had arrived in Calcutta. The steamship 'City of Herford' arrived in Calcutta on 14th September 1929 and the accused were then on Board. On 17th September the commander laid a complaint before the Chief Presidency Magistrate against the accused charging them with having been guilty of rioting and causing grievous hurt to two engineer officers. Processes were issued and warrants ordered to be served. The warrants were not executed as the accused, it is said, were not to be found at the Kidderpore address which they had themselves supplied to the shipping office. Thereafter proclamations were issued against the accused. But the S.S. City of Herford left port towards the end of September 1929 after the evidence of Captain Baker and the two engineers were recorded under Section 512, Criminal P.C. It is said that all the accused subsequently surrendered before the Chief Presidency Magistrate who transferred the case to Mr. Wajed Ali for disposal. The Third Presidency Magistrate, as stated above, acquitted all the accused on the ground that the Chief Presidency Magistrate had no jurisdiction to take cognizance of the case on 17th September 1929 inasmuch as there was no evidence to show that the accused were in Calcutta on the said day. It is against that order of acquittal that the present appeal has been preferred.
2. After the admission of this appeal only one of the six accused, namely, Samiulla has been arrested and he is represented before us to-day by Mr. Lalit Mohan Sanyal. Mr. Sanyal's contention is that there was no evidence that on the date the processes were issued the accused was in Calcutta and therefore the Court had no jurisdiction whatsoever to entertain any complaint against the accused. A clear and sufficient answer to this contention will be found in Sections 684 and 686, Merchants Shipping Act 57 and 58, Victoria Chap. 60, and reference may also be made in this connexion to the case reported in Emperor v. Salimullah (1912) 39 Cal 487, which is on all fours with the present one. It does not appear from the record that on the date the processes were issued by the Chief Presidency Magistrate the accused were not in Calcutta. They might not have been found by the process server, but it does not follow that they were not in Calcutta, and having regard to the wide terms of Sections 684 and 686, Merchant Shipping Act, I am not prepared to say that the Chief Presidency Magistrate had no jurisdiction whatsoever in issuing the processes on the date the same were issued. Be that as it may all the accused obeyed the processes of the Court and surrendered before the Chief Presidency Magistrate and subsequently also before the Third Presidency Magistrate. That being so the Court of the Third Presidency Magistrate had abundant jurisdiction to proceed with the trial of the accused. That not having been done and the acquittal being one which was wrong in law it must be set aside, and so far as the accused Samiulla is concerned being the only one who has been arrested in pursuance of the orders of this Court there must follow an order of retrial. The result therefore is that the accused Samiulla will be retried in accordance with law on charges under Sections 148 and 324, I.P.C. The other accused have not been arrested and so far as they are concerned the present appeal will remain pending.
3. I agree.