JUDGMENT

Malik, J. - This application is by Moti Lal and Sri Ram u/s 561A, Criminal P.C., and Section 205, Government of India Act.

2. Moti Lal and Sri Ram are proprietors of a firm, Messrs. Moti Lal and Sri Ram. They were "tried for having contravened the provisions of Section 6, Clause (l), Hoarding and Profiteering Prevention Ordinance (35 [xxxv] of 1943). They were both convicted by Mr. S.P. Watal, Magistrate, First Class and were sentenced to eighteen months' 'rigorous imprisonment and a fine of Rs. 1000 each. Moti Lal and Sri Ram filed a revision in this Court which was numbered as Criminal Revision No. 748 of 1946. This Court reduced the sentence of Sri Ram and while setting aside the sentence of imprisonment, the sentence of fine of Rs. 1000 was maintained. The sentence of imprisonment and of fine passed by the Magistrate on Moti Lal was maintained by this Court.

3. A certificate is prayed for by the present application u/s 205, Government of India Act, on the ground that the Ordinance

was ultra vires of the Ordinance-making power of the Governor-General, he having no jurisdiction u/s 72 of Schedule 9, Government of India Act, 1935, to promulgate the said Ordinance.

This point was not taken before this Court or any of the Courts below. In view of the decision of a Bench of this Court in Cri. Misc. cases, Nos. 437 and Jagdam Sahai Vs. Emperor, AIR 1948 All 12 the prayer for certificate u/s 205 must fail. The question of interpretation of the Government of India Act or of any Order in Council made thereunder not having been raised before this Court, it cannot be said that there was any reasonable possibility that the specified question arose and that the High Court, when it did not consider the question of the granting or the withholding of a certificate, failed in the performance of its duty u/s 205. The subsequent application would not, therefore, lie and this part of the prayer must be rejected.

4. As regards the second prayer u/s 561A, Criminal P.C., learned Counsel for the applicants, has urged that the amendment to Section 14A, Hoarding and Profiteering Prevention Ordinance, made by Ordinance No. 53 of 1944, was overlooked at the trial and in accordance with that amendment the learned Magistrate had no jurisdiction to try the case in the ordinary way unless lie was specially directed to do so by the District Magistrate.

5. Section 14A which was inserted by Ordinance No. 12 of 1944 provided that

a Magistrate empowered to act under Chap. 22, Criminal P.C., may try any offence punishable under this Ordinance in a summary way under the provisions of that Chapter, unless the District Magistrate directs that the case should not be so tried.

By ordinance No. 53 of 1944, which was published in the Gazette of India Extraordinary on 13-12-1944, the word "may" was changed into the word "shall," with the result that a Magistrate having summary powers has to try a case in his summary jurisdiction, unless the District Magistrate directs otherwise. Mr. Watal had summary jurisdiction on the date when the trial commenced, that is, in the month of April 1945. He should have, therefore, in view of the amendment, tried the case summarily as there was no direction by the District Magistrate that the trial should be in the ordinary way. All that the District Magistrate had said was "Sanctioned. To Mr. Watal for disposal." The learned Government Advocate has urged that this implies that Mr. Watal had to try the case in the ordinary way. We are not prepared to accept this contention.

6. Learned Counsel for the applicants has urged that if the trial had been a summary trial, u/s 262(2), Criminal P.C., the Magistrate could not have passed a sentence of imprisonment exceeding three months. If the point had been raised before the learned Sessions Judge, the learned Judge would have been bound to reduce the sentence to the maximum of three months. He could not have directed a retrial in the ordinary way as he could not have asked the District Magistrat