1. This appeal comes to me on a difference between my learned brothers Das J. and Sinha J.

2. The appellants have been convicted under Sections 366 and 143 of the Indian Penal Code and have been sentenced each to rigorous imprisonment for five years under Sec.366. No separate sentence has been imposed under Sec.143. The main point of difference is one arising under the Constitution of India. The case relates to the district of Hazaribagh, to which district Sec.30 of the Criminal Procedure Code applies. There is at this time an Assistant Sessions Judge exercising powers in the district of Hazaribagh. When the chargesheet was received in the present case the Sub-divisional Magistrate submitted the record to the Deputy Commissioner of Hazaribagh with the following order:

"Let the record be sent to the Deputy Commissioner of Hazaribagh for transferring it to the file of the Special Magistrate for trial."

It may be noted that the term "Special Magistrate", although there is no legal provision for it, is by practice used to denote the Magistrate exercising powers under Sec.30 of the Code. On receiving the record the Deputy Commissioner passed the order of transfer an the followin