1. In this case the opposite party were charged with a certain offence before an Honorary Magistrate of the third class. They were convicted and sentenced to fine. The Magistrate also submitted the record to the Sub-Divisional Magistrate under Section 349 in order that the opposite party might be bound down under Section 106, Criminal Procedure Code. The Sub-Divisional officer dealt with the matter and ordered the opposite party to be bound down. An appeal was then instituted from the original conviction and was tried by a Joint Magistrate who had jurisdiction to try it. Dealing with the conviction before the third class Magistrate he set it aside.
2. We granted a Rule to the petitioner to show cause why the acquittal by the first class Magistrate should not be set aside as having been made without jurisdiction. The way in which the case is presented to us is as follows: It is said that according to the decision of this Court in Mahmudi Sheikh v. Ali Sheikh 21 C. 622, the convicting Magistrate should have transmitted the case, which he was trying as well as the recommendation that the opposite party should be bound down, to the first class Magistrate, and that by force of Section 106, Criminal Procedure Code, no Magistrate can bind down in a case which he has not himself tried. It is argued from this that the original conviction was without jurisdiction and consequently that the appeal was a nullity. This seems to us to be wrong in reason and not in accordance with the authority we have quoted. The conviction when it took place was, no doubt, good, being one which the trying Court had power to make. On the authority of the case we quoted, which may be supported by the decision in the case of Rohimuddi Howladar v. The Emperor 35 C. 1093 : 9 Cr. L.J. 72, it may be that the third class Magistrate acted without jurisdiction in making the recommendation to the first class Magistrate as to the binding down under Section 106. If this is so, the conviction was good, and the recommendation was without jurisdiction and the action of the first class Magistrate under Section 106 was also without jurisdiction. But it does not follow that because the order under Section 106 was defective there was a defect in the original conviction, or consequently in the appeal, which was instituted on it. The result is that we consider that the joint Magistrate had jurisdiction to hear the appeal and make the order that he did. The Rule is consequently discharged.