ORDER
Pandrang Row, J.
1. These cases arise out of the sinking of a motor launch in the rapids of the Godavari near Manturu village on 21st July 1935 which resulted in the loss of six lives and property worth about Rs. 3,000. The clerk in charge of the launch and two others who have been discharged as well as the owner of the launch were charged by the police before the Joint Magistrate of Rajahmundry. The cases were transferred by the District Magistrate of East Godavari to the Sub-divisional Magistrate of Peddapur for disposal apparently because the Joint Magistrate of Rajahmundry had made an investigation of the occurrence. The clerk as well as the owner were convicted by the Sub-divisional Magistrate of Peddapur in C.C. Nos. 68 and 69 of 1935 and both of them appealed from their convictions and sentences to the Sessions Judge of East Godavari. Before the Sessions Judge a preliminary objection was raised by the Public Prosecutor of East Godavari to the effect that the Sessions Judge of East Godavari had no jurisdiction to entertain the appeals and that the appellate authority was the Court of Session for the Agency District of East Godavari, that is to say, the Government Agent of East Godavari. Throughout in these proceedings there was no mention made of any of the Magistrates before whom the case was pending that they were acting in the capacity of Agency Officers or Agency Magistrates and not as Sub-divisional Magistrates administering criminal justice in the plains.
2. The cases were also transferred not by the Government Agent but by the District Magistrate of East Godavari. The transfer was made to the Sub-divisional Magistrate of Peddapur and not to the Assistant Agent of Peddapur. In one of the cases the alleged offence took place at Rajahmundry itself and of that offence only the Magistrate in the plains could take cognizance. It is not alleged that it is open to the District Magistrate as such to transfer a case from the plains to an Agency Court or vice versa. Though it is the same officer who exercises jurisdiction in the two capacities of District Magistrate and Government Agent, the capacities are quite different not only as regards the territorial limits within which] the authority is to be exercised but in other respects as well. There is nothing in the record to show that these cases were dealt with at any time either by the Government Agent as such or by any Agency Magistrate as such. The judgments that were appealed from purport to be judgments of the Sub-divisional Magistrate of Peddapur and not of the Agency Magistrate. ‘When the record was so clear and unambiguous it is difficult to understand on what grounds the Public Prosecutor of East Godavari raised the preliminary objection on the score of want of jurisdiction in the Sessions Court of East Godavari or why the learned Sessions Judge before whom such an objection was made thought it fit to call for a report on the subject from the Subdivisional Magistrate from whose judgments the appeals were preferred. Any report made by a Magistrate after pronouncing judgment cannot be used to contradict or vary what is contained in the judgments themselves. Apparently the Subdivisional Magistrate was asked to report in what capacity he tried the cases. Instead of giving a categorical answer the learned Magistrate made a report which reads like a special plea in support of the objection to jurisdiction raised by the Public Prosecutor. Some of the statements of fact in the report are not borne out by the record. For instance it is stated in the report : “The cases were transferred to the Assistant Agent, Peddapuram.” The order of transfer does not support this statement, for the transfer is made by the order to the Subdivisional Magistrate, Peddapur and not to the Assistant Agent. The report then goes on to state that there was some mistake :
But owing to a mistake the various officers described themselves as Subdivisional Magistrates and District Magistrates.
3. Whether there was such a mistake or not, it was certainly not open to the Subdivisional Magistrate to state that there was a mistake in description even by the District Magistrate. It might have been open to him to confess his own mistake, but I do not think he was entitled to attribute a mistake, which in all probability has no foundation in fact, to the District Magistrate. Then follows the expression of opinion to the effect that the mistake of description does not affect the validity of the trial because the Subdivisional Magistrate, Peddapuram, is also an Assistant Agent. The report then goes on to deal with the practice in the Courts according to which the parties select the appellate Court according as the place of offence is in the Agency or Plains. Finally the Subdivisional Magistrate stated in his report that he had no need to particularly notice the fact that he was describing himself as Subdivisional Magistrate and that this point was not brought to his notice or to the notice of his predecessor by anyone and concluded with the observation that so long as the offence took place in the Agency and he was an Assistant Agent, the appeal lay to the Governor’s Agent at Cocanada, forgetting at the same time to take notice of the fact that in one of the two cases the occurrence took place at Rajahmundry itself which is admittedly not in the Agency. The calling for a report was itself unnecessary, and, as the sequel shows, undesirable. The view that the learned Sessions Judge took of the report was even more questionable. The learned Sessions Judge says :
I have no option but to accept the report of the Subdivisional Magistrate of Peddapur as correct and hold that the cases were tried by him in his capacity as Assistant Agent, Peddapur.
4. In other words the learned Sessions Judge thought that the question whether he had jurisdiction or not to entertain the appeals was practically to be decided not by himself, but by the very Magistrate from whose judgments the appeals were preferred, a proposition which has only to-be stated to be rejected. The learned Sessions Judge had not only the right to decide the question of jurisdiction himself, but it was his duty also to decide it himself, and he was certainly wrong in thinking that he had no option but to accept without question the report of the Subdivisional Magistrate even where the record spoke differently. There has been in this case no real attempt by the learned Sessions Judge to apply his own mind to the question of jurisdiction which was raised before him, and what has happened is in effect a decision of that question by the Magistrate from whose judgments the appeals were preferred. The learned Public Prosecutor who appears in this Court is unable to state what useful purpose was intended to be served by raising, the preliminary objection to jurisdiction in these cases. Even if there was any useful purpose behind the objection put-before the Sessions Judge, I have no doubt that the objection is without foundation so far as these cases are concerned. These cases were throughout dealt with by the Subdivisional Magistrate as such and not as Assistant Agent as is now sought to be made out. The fact that the Subdivisional Magistrate is also an Assistant Agent does not affect the question because in cases decided by him in his capacity as Sub-divisional Magistrate, appeals would admittedly lie only to the Sessions Judge of East Godavari.
5. It is strange to find that, in spite of what was said in Public Prosecutor v. Sadanand Patnaik, (1912) 23 MLJ 670 the Magistrate who exercises authority both as Subdivisional Magistrate in the Plains and as Assistant Agent in the Agency Tract did not take the trouble to bear in mind in these cases the particular capacity in which he was acting and to indicate the same in his proceedings. Any laxity in this respect is not to be encouraged, and it would be a definite encouragement if the Magistrate is permitted to rectify the omission later on by making a special report after the cases had been disposed of by him. The order of the learned Sessions Judge declining jurisdiction is wrong because he had jurisdiction to hear the appeals in these cases. His order returning the memoranda of appeal for presentation to the proper Court is set aside and he is directed to get back the memoranda of appeal from the appellants or from the Court in which they were filed and dispose of them according to law.
