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Emperor Vs. L.M. Marino - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 106 of 1935
Judge
Reported in(1935)37BOMLR658; 159Ind.Cas.90
AppellantEmperor
RespondentL.M. Marino
Excerpt:
aden civil and criminal justice regulation (vi of 1933), sections 35 (3), 38 (2) - sessions judge at aden-revisional jurisdiction-application by aggrieved parly -finding of acquittal cannot be changed into one of conviction-high court of bombay-powers of superintendence-government of india act (5 & 6 geo. v. c. 81), section 107-criminal procedure code (act v of 1898), section 439(5) - civil procedure code (act v of 1908), section 115-limits of revisional jurisdiction.;section 35 of the aden civil and criminal justice regulation, 1933, confers extensive powers in revision on the sessions judge at aden; but those powers are neither unlimited nor purely arbitrary. the sessions judge has a judicial discretion to be exercised judicially, and the orders which he can pass must be legal..........the sessions judge shall exercise all the powers excisable by a court of session under the code of criminal procedure, 1898, and he may also, when it seems proper to him so to do, exercise all powers conferred on a district magistrate by the said code except in cases triable by himself as a court of session.35. (1) an appeal shall lie to the court of session from the judgment or order of the district magistrate, or of any magistrate of the first class in any case in which an appeal is allowed from such judgment or order of such magistrate under the code of criminal procedure, 1898, provided that no appeal shall lie in cases in which a sentence is awarded of imprisonment for a term not exceeding two months with or without fine, or of fine not exceeding five hundred rupees.(2) an.....
Judgment:

Broomfield, J.

1. This application raises an important point as to the jurisdiction and powers of the Sessions Judge of Aden under the Aden Civil and Criminal Justice Regulation VI of 1933.

2. The facts may be very briefly stated. There was a collision' between two motor ears at the cross roads near the National Bank of India at Crater in Aden in consequence of which a passenger in one of the cars was fatally injured. The drivers of the two cars were prosecuted for an offence under Section 304-A of the Indian Penal Code, and the First Class Magistrate at Aden convicted the driver of one car and fined him Rs. 500. He acquitted the other, who was accused No. 2 and who is the applicant before Us. There were two revision applications to the Sessions Judge of Aden; one by the convicted accused and ode by the Public Prosecutor in the case of the Other accused who was acquitted. The Sessions Judge confirmed the conviction of accused No, 1. He set aside the acquittal of accused No. 2 and sentenced him to a fine of Rs. 100 with imprisonment in default.

3. The learned counsel on behalf of the applicant has contended, firstly, that the Sessions Judge had no jurisdiction to deal with the case in revision the only procedure being for Government to appeal to the High Court of Bombay as provided in Section 38 (2) of the Regulation ; secondly, that in any case the Judge had no power to convert an acquittal into a conviction in revision, a thing which even the High Court of Bombay cannot do (vide Section 439 of the Criminal Procedure Code,)

4. The question for consideration depends on the construction of the provisions of the Regulation. The material sections for our purpose are the following : 26, 35, 36, 38 and 49.

26. Save as provided in this Regulation, the Sessions Judge shall exercise all the powers excisable by a Court of Session under the Code of Criminal Procedure, 1898, and he may also, when it seems proper to him so to do, exercise all powers conferred on a District Magistrate by the said Code except in cases triable by himself as a Court of Session.

35. (1) An appeal shall lie to the Court of Session from the judgment or order of the District Magistrate, or of any Magistrate of the first class in any case in which an appeal is allowed from such judgment or order of such Magistrate under the Code of Criminal Procedure, 1898, provided that no appeal shall lie in cases in which a sentence is awarded of imprisonment for a term not exceeding two months with or without fine, or of fine not exceeding five hundred rupees.

(2) An appeal shall lie to the Court of Session from the judgment or order of any Magistrate of the second or third class in any case in which an appeal is allowed from such judgment or order of such Magistrate under the Code of Criminal Procedure, 1898.

(3) The Sessions Judge may call for any proceedings of any Magistrate at any stage or within thirty days of their termination and may pass such orders thereon as he thinks fit.

36. An appeal shall lie to the High Court of Judicature at Bombay from the judgment or order of the Sessions Judge or of an Additional Sessions Judge in any case in which an appeal is allowed by the Code of Criminal Procedure, 1898, from such judgment or order of a Sessions Judge in the Presidency of Bombay.

Provided that there shall be no appeal by a convicted person against a sentence of imprisonment not exceeding six months or of fine not exceeding five hundred rupees.

38. (1) No appeal shall lie from any judgment or order of a criminal Court except as provided in this Regulation.

(2) The Chief Commissioner may direct an appeal to be presented to the High Court of Judicature at Bombay from an order of acquittal passed by any Court in Aden.

49. Except as otherwise provided in this Regulation, proceedings in all criminal cases of every description brought in the Courts of Aden shall be regulated by the Code of Criminal Procedure, 1898.

5. The most important for this case is the third clause of Section 35, the only provision dealing directly with revision, which empowers the Sessions Judge to call for any proceedings of any Magistrate at any stage and to pass such orders thereon as he thinks fit. Prima facie this appears to give an unfettered discretion. Of course the powers cannot be supposed to be unlimited or purely arbitrary. It would be a judicial discretion to be exercised judicially. Obviously too the orders to be passed must be legal orders. The Sessions Judge could not impose a sentence contrary to the Indian Penal Code or make any other order contrary to the law. The question is whether, apart from such fundamental limitation, it can be said that the Sessions Judge's powers are limited, or defined. Section 26 of the Regulation, which defines the ordinary powers of the Sessions Judge, does not really assist us because it is subject to Section 35. The same applies to Section 49 which saves the provisions of the Code except as otherwise provided in the Regulation. Section 35 itself does not suggest that the Sessions Judge's powers of revision are those of a Sessions Judge under the Code, rather the contrary. The language used clearly indicates that he has more extensive powers, and learned counsel for the applicant has conceded that. It has been argued with some plausibility that the enacting authority could not have intended that the Sessions Judge should have wider powers in revision than those enjoyed by the High Court of Bombay under the Code. But it is clear, I think, that his powers are not actually defined by reference .to the power' of any other tribunal or by reference to any specific provision of the Code. It would be quite simple to say that the Sessions Judge should exercise the revisional powers of a High Court, but this is not done. Section 49 cannot be said to save the operation of Section 439 of the Code in the sense that it would make that section applicable per se to the Sessions Judge of Aden. It may be mentioned that Section 35 (3) of the Regulation closely follows the language of the Aden Civil and Criminal Justice Act II of 1864, Section 19. Under that Act these revisional powers were vested in the Resident who was himself the only appellate authority. There was no appeal from his decision in any criminal case, but he could under Section 30 of the Act refer a point of law for the opinion of the High Court. The powers of the Resident are now transferred to the Sessions Judge and provision is made for appeals to the High-'Court from his decisions in Section 36 of the Regulation. The old Act also contained no provision for appeals from acquittals such as is now contained in Section 38 (2). This new provision is strongly relied on by the learned counsel for the applicant ^who argues with much force that the procedure followed by the Sessions Judge in this case would in effect oust the jurisdiction of the High Court and deprive the person who has been acquitted of a valuable right.

6. I can find nothing which amounts to a statutory definition of the Sessions Judge's powers in revision. Nevertheless, a further limitation beyond that already pointed out as obvious seems to me to arise from the fact that the powers in question are at any rate revisional powers. There is a well recognised distinction between the ordinary powers of Courts and the extraordinary and discretionary powers of superintendence or revision. These latter powers !have never been considered part of the everyday machinery of the administration of justice. They are invoked as a rule only when the ordinary procedure supplies no proper remedy or to correct some manifest illegality or injustice. The classic authority as to the principles underlying the exercise of the Court's extraordinary jurisdiction is Shiva Nathaji v. Joma Kashinath I.L.R.(1883) 7 Bom. 341. One of the principles laid down in that case is that where an appeal is provided, the Court will not interfere by any peremptory order with the ordinary course of adjudication, save in cases wherein a defeat of the law and a grave wrong are manifest, and are irremediable by the regular procedure. It is true that the Court was dealing there with the extraordinary jurisdiction in civil matters, but the reasoning underlying the judgment is not based on anything peculiar to civil procedure and similar principles have often been held to apply in criminal matters also. I may refer to Emperor v. Rameshwar Harnath I.L.R.(1929) 53 Bom. 564 : 31 Bom. L.R. 529 and the cases cited there; also to Hrishikesh Mandal v. Abadhaut Mandal I.L.R. 1916 Cal. 703 and In the matter of Sheikh Amin-ud-din I.L.R.(1902) All. 346. So that the rule expressly enacted in Section 439 (5) of the Code,' with which the provisions of 8. 115 of the Civil Procedure Code may be compared, might not unreasonably be regarded as a fundamental rule governing the exercise of revisional powers which the enacting authority cannot have intended to override. It should be noted in this connection that no .appeal is provided from any order of the Sessions Judge in revision. Appeals lie to the High Court under Section 36 only in cases in which appeals are allowed by the Code, and the Code does not allow appeals from orders in revision. If the Sessions Judge can set aside an acquittal and impose a fine of Rs. 100 in revision, he could as well impose a sentence of two years' imprisonment, without any right of appeal. It is very difficult indeed to suppose that this could have been intended. The Regulation itself does not even appear to contemplate revision by the High Court. Our power of interference is based on the Letters Patent and on Section 107 of the Government of India Act, and it may conceivably be taken away.

7. At present, however, it is competent to this Court to interfere under its-general powers of superintendence : Emperor v. Balkrishna Phansalkar : (1932)34BOMLR1523 . That being so, it is not really necessary for the purposes of this case to determine whether technically the Sessions Judge possesses the powers which he has assumed or not. For the reasons which I have given, and especially in view of the new provision in the Regulation for appeals from acquittals, I consider it extremely doubtful whether the Sessions Judge can be said to have the power under Section 35 (3) to convert an acquittal into a conviction as he has done, and that too at the instance of the party who could have appealed. But assuming; that the language of the section is wide enough to confer the power, there can. be no doubt, in our opinion, that the power has been abused in this instance.. The learned Judge has not exercised his discretion judicially or in accordance with the recognised principles governing revisional jurisdiction. It has not been suggested that there was any illegality or material irregularity in the Magistrate's procedure. The Sessions Judge in effect dealt with the case as if: it were an appeal on the merits. The reasons which he gives for interference,, viz., the not infrequent occurrence of fatal accidents and the desirability of a stricter enforcement of what he takes to be the law, might be good grounds; for an appeal by Government against the acquittal but are quite insufficient: grounds for the extraordinary procedure adopted by the Sessions Judge. We think, therefore, that the order in question cannot be allowed to stand. We make the rule absolute, set aside the order convicting the applicant L. M. Marino, and direct that the fine if paid be refunded.


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