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P.V. Masand Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Revision Application No. 1081 of 1967
Judge
Reported in(1969)71BOMLR387
AppellantP.V. Masand
RespondentThe State of Maharashtra
Excerpt:
criminal procedure code (act v of 1898), sections 476, 476b, 195(3) - order passed by district magistrate under section 476 whether appealable to court of sessions under section 476b.;an appeal lies from an order passed by the district magistrate under section 476 of the criminal procedure code, 1898, to the court of sessions under section 476b of the code.;bharat v. srundaban [1964] cut. 515, agreed with. ;ramchandra nagoji v. dhondiram (1965) 68 bom. l.r. 233 and chatrapati co-op. ho. soc. v. state (1966) 70 bom. l.r. 588, referred to. - - moreover for reasons to be stated presently i hold that the petitioners have the right of appeal on facts as well as on law against the order passed by the district magistrate before the court of session. 'declaration of punishment awarded to a..........to whether the district magistrate is a criminal court within the meaning of section 476b of the code of criminal procedure. the district magistrate is one of the executive magistrates mentioned under section 6-a of the code of criminal procedure. section 17b of the code lays down:17b. courts of session and courts of magistrates (including courts of presidency magistrates) shall be criminal courts inferior to the high court and courts of magistrates outside greater bombay shall be criminal courts inferior to the court of session.7. the next question that has to be considered is as to whether the court of session is a court to which appeals ordinarily lie from an order of the district magistrate for the purpose of section 476b and section 195, sub-section (3) of the 'code of criminal.....
Judgment:

Vaidya, J.

1. This revision application raises an important point of law as to whether an appeal lies from an order passed by the District Magistrate under Section 476 of the Criminal Procedure Code to the Court of Sessions under Section 476B of the said Code, as in force in the State of Maharashtra.

2. [His Lordship after setting out the facts of the case, proceeded.]

3. Mr. Gursahani, the learned Counsel for the petitioners, has submitted that the learned Second Additional Sessions Judge was not right in his view that no appeal lay against the order of the District Magistrate under Section 476B of the Criminal Procedure Code. He has also submitted that the order of the District Magistrate is illegal and without jurisdiction and wrong on merits. However, as the learned Sessions Judge has decided the matter only on the preliminary point of jurisdiction and as I am of the view that the view taken by the learned Sessions Judge was wrong, I do not propose to discuss the merits of the case. Moreover for reasons to be stated presently I hold that the petitioners have the right of appeal on facts as well as on law against the order passed by the District Magistrate before the Court of Session.

4. Mr. Kanade, the learned Assistant Government Pleader, has sought to support the order passed by the Additional Sessions Judge on the ground that whereas under Section 476B read with Section 195(5) of the Criminal Procedure Code, the right of appeal is conferred on the parties affected by the order under Section 476 of the Criminal Procedure Code only when ordinarily an appeal lies from the sentence passed by the District Magistrate and as no sentence of punishment can be passed by the District Magistrate under the provisions of the Criminal Procedure Code now in force, the petitioners had no right of appeal against the order passed by the District Magistrate. Mr. Bhatia who appeared for Gajadhar, respondent No. 2, supported the contention raised by Mr. Kanade and further argued that the order was passed by the District Magistrate sometime before June 30, 1964, and the petitioners came to know of the order in 1964 and hence the appeal presented by them in the Court of Session on October 11, 1966 was hopelessly time-barred. Mr. Bhatia further submits that the affidavit filed by petitioner No. 2 in the 'Court of Session does No. t disclose sufficient material on the basis of which the Court could excuse the delay in filing the appeal and he is entitled to raise the point of limitation, as that was not considered by the Second Additional Sessions Judge after his client received notice of the appeal. I do not wish to deal with the contention regarding limitation at this stage, because it is open to respondent No. 2 to raise the point of limitation before the Court of Session. The order against which this revision application is filed is the order returning the appeal filed by the petitioner for presentation to the proper Court. The merits of the appeal are not at all considered by the Sessions Judge.

5. Hence the only point which I shall deal with for the purpose of the disposal of this revision application is the point of jurisdiction decided by the Second Additional Sessions Judge. There can be no doubt that against any order passed under Section 476 of the Criminal Procedure Code directing a prosecution, the person prosecuted can file an appeal, after the filing of the complaint, under Section 476B which runs as follows:

Any person on whose application any Civil, Revenue or Criminal Court, has refused to make a complaint under Section 476 or Section 476A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3), and the Superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under Section 476, and if it makes such complaint the provisions of that section shall apply accordingly.

6. The definition of the Court to which an appeal can be preferred, as incorporated in Section 476 of the Criminal Procedure Code is to be found in Section 195, Sub-section (3), which runs as follows:

(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within tile local limits of whose jurisdiction such Civil Court is situate :...

In view of these provisions, therefore, the first question that arises is as to whether the District Magistrate is a criminal Court within the meaning of Section 476B of the Code of Criminal Procedure. The District Magistrate is one of the executive Magistrates mentioned under Section 6-A of the Code of Criminal Procedure. Section 17B of the Code lays down:

17B. Courts of Session and Courts of Magistrates (including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Session.

7. The next question that has to be considered is as to whether the Court of Session is a Court to which appeals ordinarily lie from an order of the District Magistrate for the purpose of Section 476B and Section 195, Sub-section (3) of the 'Code of Criminal Procedure.

8. Mr. Gursahani submitted that under Section 476B of the Code in respect of any proceeding's in any Criminal Court, the petitioner against whom a complaint is filed under Section 476 of the Code is entitled to appeal to the Court to which the District Magistrate is subordinate: within the meaning of Section 195, Sub-section (3) of the Code. Subordination defined in Section 195(3) is not a general subordination or an administrative subordination. Section 195, Sub-section (3) of the Code, gives a special meaning to the word and that meaning is that if appeals ordinarily lie against any order passed by the District Magistrate to the Court of Session, the District Magistrate would be subordinate to the Court of Session.

9. Mr. Gursahani relies on the provisions of Sections 406, 406AA and 406A of the Criminal Procedure Code and contends that since those sections provide for appeals from the orders under Sections 118, 436(2) and 122 of the Code of Criminal Procedure, it must be held that the District Magistrate is a subordinate Criminal Court for the purpose of Sections 195(3) and 476B of the Code. He submits that the word 'sentence' occurring in Section 195(3) of the Code does not necessarily imply 'sentence of punishment after conviction'. But it means any order passed by a Criminal Court. He relies on the meaning of the said word as given in 'Wharton's Law Lexicon, where '(sentence of a Court' is given the meaning as: 'definite judgment pronounced in criminal proceedings'. Mr. Gursahani contends that the orders referred to in Sections 406, 406AA and 406A of the Code, being all orders or definite judgments pronounced in criminal proceedings, they are sentences as explained by Wharton's Law Lexicon. He also relied on the meaning of the word '' sentence'' given in the Concise Oxford Dictionary of Current English, 1964 edn,, where the meaning given to the word 'sentence' is 'verdict' although there is a gloss that this meaning is rare and its usual meaning is: 'declaration of punishment awarded to a person condemned in a criminal trial'. He argued that it is also possible that in view of the accepted meaning in Law Lexicon of the word 'sentence' to mean a judgment of the Criminal Court, Legislature, after introducing the scheme of separation of judiciary and executive, did not think it necessary to amend the provisions of Section 195(5) of the Criminal Procedure Code.

10. Mr. Gursahani has also relied 011 a decision in Bharat v. Brundaban [1904] Cut. 515 which fully supports his argument. In that case there was a proceeding under Section 145 of the Criminal Procedure Code and as it was considered necessary by the Sub-Divisional Magistrate before, whom the said proceedings were heard, to prosecute one of the parties, an order was passed by him under Section 476 of the Criminal Procedure Code. An appeal was filed to the Sessions Court against the said order and the Sessions Judge came to the conclusion that no appeal lay under Section 476B of the Criminal Procedure Code against the order of the Sub-divisional Magistrate under Section 476 of the Code. Narsimhan C.J. held (P- 516):

Here the learned Sessions Judge has committed a serious error. The scheme of separation of the Judiciary from the Executive does not in any way affect the judicial powers of the Sessions Judge under the Code of Criminal Procedure which have been kept intact. His Court is superior to that of all Magistrates whether executive or judicial both for the purpose of exercising revisional jurisdiction and also for the exercise of appellate powers where appeals have been provided against orders of Magistrates. It is true that trial of cases has been transferred to the Judicial Magistrates and the Sessions Judge is their appellate authority subject to the provisions of Chapter XXXI of the Code of Criminal Procedure. It is also true that under the allocation of functions between the Executive and the Judiciary the jurisdiction of the Executive Magistrates is limited to those provisions of the Code dealing with prevention of offences mentioned in Chapters VIII, IX, X, XI and XII of the Code. The learned Sessions Judge, however, is not right in saying that no appeal is provided against the orders passed by Executive Magistrates, while exercising powers under those Chapters. An order passed by an Executive Magistrate in a proceeding under Sections 107, 109 or 1.10, Criminal Procedure Code, is appealable to tile Court of Session under Section 406 and Section 406-A, Criminal Procedure Code. Hence, by virtue of Sub-section (3) of Section 195, Criminal Procedure Code, even Executive Magistrates are deemed to be subordinate to the Court of Session. An appeal will, therefore, lie under Section 476-B, Criminal Procedure Code, to the Court of Session, against an order passed by an Executive Magistrate under Section 476, Criminal Procedure Code.

11. With respect, I entirely agree with this view taken by Narasimhan C.J. as, in my judgment, that view appears to be the proper view on a reasonable construction of Section 195(5) and I, therefore, uphold the contention of Mr. Gursahani that the petitioner had a right of appeal against the order of the District Magistrate to the Court of Session.

12. The learned Sessions Judge, Thana, relied on a decision of this Court in Ramchandra Nagoji v. Dhondiram (1906) 70 Bom. L.R. 588 which has been over-ruled by Chatrapati Co-op. Ho. Soc. v. State : AIR1967Bom39 . The case on which the learned Sessions Judge relied and which was over-ruled, related to the question as to whether the revisional powers could be exercised in regard to the decisions by the Executive Magistrates, and it has been held that if the Magistrate was acting as a Criminal Court, the order would be subject to revisional jurisdiction under Sections 435 to 439 of the Criminal Procedure Code. It is not necessary to discuss the cases, further, because in the present case the specific provisions of Sections 476B and 195(5) of the Criminal Procedure Code which conferred a right of appeal on the persons aggrieved by an order under Section 4,76 of the Code require to be construed and as stated by me above, on a proper construction of these provisions it is clear that the petitioners had a right of appeal to the Court of Session against the order of the District Magistrate.

13. In the result the order passed by the Second Additional Sessions Judge, Thana, directing the return of the appeal for presentation to the proper Court is set aside and the appeal memo which is filed by Mr. Gursahani today in this Court is directed to be forwarded to the Sessions Judge, Thana; and he shall dispose of the appeal on merits (including the point of limitation raised by Mr. Bhatia) in accordance with law. As there has been a considerable delay in the disposal of these proceedings following the order of the District Magistrate under Section 476, Criminal Procedure Code passed prior to June 30, 1964, the Sessions Judge should expedite the hearing of the appeal. Rule absolute.


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