Ray, J.

1. These three appeals are by certificate from the judgment and order, dated March 31, 1969 of the High Court of Assam and Nagaland.

2. These three appeals arise out of special cases Nos. 16 and 16-A of 1964, pending in the court of the Special Judge, Gauhati. In Special Case No. 16 of 1964, Major J. S. Prosad, B. N. Ananthapadamanabhiah and Motiur Rahman were charged under Section 120-B of the Indian Penal Code, read with Sections 5(2), 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and Sections 467/471 of the Indian Penal Code. In Special Case No. 16-A of 1964, charges were framed against S. Chatterjee and Motiur Rahman under Section 120-B of the Indian Penal Code read with Sections 5(2), 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act and Sections 467 and 471 of the Indian Penal Code.

3. The appellants filed three separate criminal revision petitions in the High Court. Four contentions were advanced before the High Court. First, that the Special Judge at Gauhati had no jurisdiction to try offences investigated by the Delhi Special Police Establishment as the Delhi Special Establishment Act was not extended to NEFA. Secondly, that under Section 6 of the Delhi Special Police Establishment Act the Delhi Special Polic Establishment cannot investigate in a case in any area which is not a Union territory or a railway area without the consent of the Government of the State. It was contended that the consent of the Government of Assam was not taken. Thirdly, the investigation was carried out by an Inspector of Police under Section 5(2) of the Prevention of Corruption Act under an order of a Magistrate of the First class at Delhi, but the Magistrate did not apply his mind to the matter and mechanically gave the permission. Fourthly, no sanction was taken under Section 196-A of the Code of Criminal Procedure before cognisance was taken by the court.

4. The Division Bench consisting of C.J. and Goswami, J., unanimously rejected the first two contentions but were divided in their opinion as to whether the Magistrate applied his mind to allow the investigation by an Inspector of Police and whether sanction under Section 196-A of the Code of Criminal Procedure was necessary. The matter was thereafter placed before the third learned Judge, Sen, J. Before the third learned Judge another contention was advanced as to whether the Magistrate at Delhi had jurisdiction to accord sanction to an Inspector of Police of the Delhi Special Police Establishment to investigate the case in Assam. The third learned Judge held that an order of a Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the district where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. The third learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do the investigation. In the result, the proceedings before the Special Judge were quashed.

5. A question arose as to whether a new contention as to the competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned Judge when it had not been raised before the Division Bench. for the respondents contended that under Section 429 of the Code of Criminal Procedure the case was to be laid before the third learned Judge and the third learned Judge was empowered to deal with the entire case and the judgment and order would follow the opinion of the third learned Judge.

6. This question came up for consideration in the recent unreported decision in Hethubha and Others v. The State of Gujarat. (1970 (1) SCC 720 [LQ/SC/1970/131] : 1970 SCC (Cri) 280.) It was contended in that case on behalf of the appellants that the third learned Judge could only deal with the differences between the two learned Judges and not with the whole case. This Court held that the third learned Judge could deal with the whole case. The language of Section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court. The other noticeable feature in Section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.

7. Furthermore, the appeal is from the order of the third learned Judge as it must be by reason of the divided opinion of the Bench.

8. The more important question in the present appeals is whether the Magistrate at Delhi was competent to authorise the investigation of the case. The relevant at Delhi was competent to authorise the investigation of the case. The relevant provision is to be found in Section 5-A of the Prevention of Corruption Act, 1947, as it stood prior to its amendment in 1964 and is as follows :

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no Police Officer below the rank -

(a) in the presidency towns of Madras and Calcutta, of an Assistant Commissioner of police;

(b) in the presidency town of Bombay of a Superintendent of Police; and

(c) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code or under sub-section (2) of this Act, without the order of the Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefore without a warrant."

9. The words "Presidency Magistrate or a Magistrate of the first class, as the case may be" were construed by counsel for the appellants to mean that except in the case of Presidency Magistrates it could be any first class Magistrate of any area inasmuch as there was no limitation with regard to any area of territorial jurisdiction by a Magistrate of the first class under Section 5-A of the Prevention of Corruption Act, 1947. Reliance was placed by counsel for the appellants on Section 5 of the Code of Criminal Procedure that the investigation under Section 5(2) of the Code of Criminal Procedure could be according to the provisions of the Code of Criminal Procedure but subject to any enactment regulating the manner or place of investigation. It was said that Section 5-A of the Prevention of Corruption Act was a special Act regulating the manner of investigation and therefore the Code of Criminal Procedure would not apply to that extent. Presidency Magistrate under Sections 6 and 18 of the Code of Criminal Procedure are for each of the Presidency towns. A Presidency Magistrate exercises jurisdiction within the presidency towns for which he is appointed and within the limits of the port of such town. Magistrates of the first class are dealt with under Sections 6, 10, 11, 12 and 13 of the Code of Criminal Procedure and their powers of sentence are dealt with by Section 32 of the Code of Criminal Procedure. Section 6 speaks of Magistrate in every district outside the Presidency town. Section 12 of the Code of Criminal Procedure empowers the State Government to appoint besides the District Magistrate, Magistrates of the first, second or third class in any district and the State Government may from time to time define local areas within which such Magistrates may exercise all or any of the powers with which they may be invested under the Code. Section 12(2) of the Code of Criminal Procedure enacts that except as otherwise provided the jurisdiction and powers of such Magistrates shall extend throughout such district. It therefore follows that the Magistrates of the first class of a district have powers within defined local areas within the district and their jurisdiction and powers may in certain cases extend throughout such district. The Magistrate at Delhi can in certain cases exercise jurisdiction and power throughout the district where he is appointed.

10. The words "Presidency Magistrate or a Magistrate of the first class, as the case may be" in Section 5-A of the Prevention of Corruption Act indicate that a Presidency Magistrate refers to the Presidency town where he exercises jurisdiction and similarly a Magistrate of the first class refers to a Magistrate of the first class of a district exercising power in that district. A Magistrate does not exercise jurisdiction throughout the length and breadth of India for purposes of Code of Criminal Procedure or of Prevention of Corruption Act. The Code of Criminal Procedure defines the territorial jurisdiction of Magistrates. It will not be in consonance with the jurisdiction and structure of Courts of Magistrates to allow an order of investigation to be made by a Magistrates of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which Prevention of Corruption Act is that investigation is to be done by Police Officers of a certain rank to ensure protection against frivolous prosecution and it is only with the order of presidency Magistrate or a Magistrate of the first class that Police Officers below the rank mentioned in the section are allowed to investigate. It is therefore appropriate that Magistrates in Presidency towns or district will order investigation of cases within their respective jurisdiction. The effect of Section 5-A of the Prevention of Corruption Act is that it is a special Act which confers powers on Presidency Magistrates exercisable throughout the Presidency town and Magistrates of the first class throughout the district where they exercise powers under the Code of Criminal Procedure. Ordinarily, Magistrates of the first class may have defined areas within the meaning of Section 12(1) of the Code of Criminal Procedure but in cases governed by Section 5-A of the Prevention of Corruption Act Magistrates of the first class will exercise jurisdiction throughout the district irrespective of defined areas of their jurisdiction within that district by reason of Section 12(2) of the Code of Criminal Procedure.

11. In the present appeals, the order of investigation made by the Magistrate at Delhi for investigation of cases in the State of Assam was not a valid and competent order within the powers of the Magistrate at Delhi. These orders of investigation are therefore rightly quashed by the High Court.

12. The contention on behalf of the appellants that the order of the Magistrate allowing the Inspector or Police to investigate was proper and that he applied his mind is not required to be gone into in the present appeals in view of the decision that the Magistrate at Delhi was not competent to authorise the investigation.

13. It is also not necessary to express any opinion on the other contention as to whether sanction under Section 196-A of the Code of Criminal Procedure was necessary before the courts could take cognizance of the matter.

14. We are of opinion that the order of the Magistrate at Delhi is not a valid and proper order and therefore the investigation was bad. We need not express any opinion as to whether there should be a fresh investigation. For these reasons, the appeals fail and are dismissed.