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State of Karnataka and anr. Vs. Thimmappa H.S. and Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal R.P. Nos. 625 and 627 of 1983 and Criminal Petn. Nos. 756 and 758 of 1983
Judge
Reported inILR1984KAR933
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 13, 13(3), 15, 397, 401 and 482; Karnataka Silkworm Seed Cocoon and Silk Yarn (Regulation of Production, Supply, Distribution and Sale) Act, 1959
AppellantState of Karnataka and anr.
RespondentThimmappa H.S. and Etc.
Appellant AdvocateT.J. Chouta, Adv. and ;Public Prosecutor
Respondent AdvocateM.R. Diwate, Adv.
Excerpt:
.....a judicial authority. 12. in examining a question like this we have also to take into consideration the nature of the proceeding under challenge before the sessions judge......1983 and crl. appeal no. 7 of 1983). both the appeals were decided by the 6th addl. city civil & sessions judge, bangalore city, on 23-5-1983. 3. while challenging those two proceedings, the state has not merely preferred the two revisions but, as a matter of caution, also the two petitions aforesaid. 4. since the proceedings involve common questions of law and facts they were heard together. 5. a preliminary point was raised at the outset by the counsel appearing for the respondent questioning the jurisdiction of this court to entertain these petitions. accordingly both sides were heard on this aspect. 6. a few facts : (a) under the karnataka silkworm seed cocoon and silk yarn (regulation of production, supply, distribution and sale) act 1959 (the act), the director of sericulture, a.....
Judgment:
ORDER

1. The Criminal Revisions are under S. 397 read with S. 401 of the Criminal P.C. 1973 (the Code), and the Criminal Petitions, under S. 482 thereof.

2. These have arisen out of two proceedings. (Crl. Appeal No. 8 of 1983 and Crl. Appeal No. 7 of 1983). Both the appeals were decided by the 6th Addl. City Civil & Sessions Judge, Bangalore City, on 23-5-1983.

3. While challenging those two proceedings, the State has not merely preferred the two revisions but, as a matter of caution, also the two petitions aforesaid.

4. Since the proceedings involve common questions of law and facts they were heard together.

5. A preliminary point was raised at the outset by the counsel appearing for the respondent questioning the jurisdiction of this court to entertain these petitions. Accordingly both sides were heard on this aspect.

6. A few facts :

(a) Under the Karnataka Silkworm Seed Cocoon and Silk Yarn (Regulation of Production, Supply, Distribution and Sale) Act 1959 (the Act), the Director of Sericulture, a statutory authority, is conferred with the powers, under S. 13 of the Act, of suspending or cancelling the licence granted to a person or of forfeiting to the Government the Silkworm and Seed etc., in respect of which, the person concerned had contravened the relevant provisions of the Act. The Director can also levy penalty up to Rs. 5,000/- but not exceeding the value of the property in relation to which the provisions can be said to have been violated. Against the order of the Director, an appeal is provided to the Sessions Judge of the District and his decision on such an appeal is made final. S. 13(3) of the Act reads as under :

'Any person aggrieved by the order of suspension or cancellation of licence or forfeiture of property or imposition of penalty under sub-section (1), may appeal to the Sessions Judge of the District within such time and in such manner as may be prescribed and the decision of the Sessions Judge on such appeal shall be final.'

(b) The Act also provides for prosecution of persons contravening certain other provisions of the Act (see S. 12). Under S. 15 of the Act, the offences arising thereunder can be taken cognizance of by a Magistrate of the First Class.

(c) As provided under sub-section (2) of S. 13 'no person on whom the penalty is imposed under sub-clause (ii) of Clauses (b) of sub-section (1) shall be liable for prosecution in respect of the same facts for an offence under this Act;'

(d) In the two proceedings in question, being of opinion that the respondents herein, had violated Sections 5A and 8A of the Act, the Director of Sericulture had ordered forfeiture of the silk yarn seized in the respective proceeding.

(e) The aforesaid orders were challenged before the City Civil and Sessions Judge in the two criminal appeals referred to above. The learned Judge for reasons stated by him in those two appeals, has allowed the appeals. These petitions, as stated above, are directed against the said two orders.

7. The contention of the learned counsel for the respondents is, that the order of the Sessions Judge is not amenable to the revisional jurisdiction of this Court or for interference under S. 482 of the Code. His case is, that, the Sessions Judge while dealing with these appeals was functioning as a statutory authority and not as an inferior Criminal Court within the meaning of the Code and therefore, this court exercising its power under the Code, cannot interfere with those orders. In this connection, he drew my attention to a recent decision of a Division Bench of this court in Mohd. Abdul Sathar Khan (Sathar Khan) v. Sub-Divisional Magistrate, Bidar (W.P. No. 14107 of 1978 - D/- 31-1-1984) (reported in 1985 Cri LJ 1097. On the other hand, the Government Pleader submitted that the Sessions Judge while exercising his powers under sub-section (3) of S. 13 of the Act, would be functioning as an inferior Criminal Court and therefore, his orders are amenable to the jurisdiction of this Court either under S. 397 or 482 of the Code. According to him, in the circumstances, it cannot be said that that power had been conferred on the Sessions Judge as a persona designata, but as a Presiding Officer of a Sessions Court of the District and the Sessions Court being a court governed by the provisions of the Code was nothing but an inferior Criminal Court. In this connection, he placed strong reliance on Vasundra Traders v. State of Karnataka (1977) 1 Kant LJ 339 : (1977 Cri LJ 1539) and also on a Full Bench decision of the Andhra Pradesh High Court in The Public Prosecutor v. Legisetty Ramayya, 1975 Cri LJ 144.

8. In Sathar Khan, the proceeding involved was one that had arisen under the Karnataka Debt Relief Act, 1976. Under that Act, the Executive Magistrate is conferred with certain powers. He can decide whether a person is a debtor within the meaning of that Act or whether the debt stood redeemed on the coming into the force of that Act etc., and also has powers to restore to the mortgagor and others the properties mortgaged. The question was, whether the Executive Magistrate exercising those powers, was an inferior Criminal Court within the meaning of the Code It is held in Sathar Khan that, he was not. In that case several decisions of the Supreme Court and also the Full Bench ruling of the Andhra Pradesh High Court in Ramayya (1975 Cri LJ 144) have been considered by their Lordships. It may be noted that, both in Ramayya and Vasundra Traders (1977 Cri LJ 1539) (Kant), the question that arose was, whether the Appellate Authority the Sessions Judge, appointed as such by the State Government under the relevant provisions of the Essential Commodities Act was an inferior Criminal Court within the meaning of the Code and thus, amenable to the revisional jurisdiction of this Court. In Vasundra Traders, this court while holding that the Sessions Judge functioning under S. 6(c) of that Act (Essential Commodities Act) was functioning as an inferior Criminal Court mainly proceeded on the basis that while exercising his powers, he was functioning as a court and not a persona designata. In Ramayya also, the Andhra Pradesh High Court has taken the same view. That was mainly on two grounds. According to the Court the intention of the legislature was to confer appellate power under S. 6(c) on a pre-existing judicial authority and secondly the decision of that appellate authority had not been made final.

9. In Thakurdas v. State of Madhya Pradesh, : 1978CriLJ1 the Supreme Court while examining whether the decision of the appellate authority under S. 6(c) of the Essential Commodities Act could be revised by the High Court exercising its revisional powers under Cr.P.C. approved the decision in Ramayya (1975 Cri LJ 144) (Andh Pra) (FB) only on the grounds referred to above (at para 12). The following observations in Thakurdas at paras 10 and 11 be noted :

'Para 10 :-

As against this, this very question was examined by a Full Bench of the Andhra Pradesh High Court in Public Prosecutor (A.P.) v. L. Ramayya, 1975 Cri LJ 144 (FB) (Andh Pra). Two questions were referred to the Full Bench. The first was : whether the District and Sessions Judge who is appointed judicial authority for hearing appeals under S. 6C is a persona designata or an inferior criminal court, and the second was : whether even if it is an inferior criminal court, a revision application against the order of the appellate authority would lie to the High Court The Full Bench answered the first question in the affirmative. While summing up its conclusions, the Court held that when a judicial authority like an officer who presides over a court is appointed to perform the functions, to judge and decide in accordance with law and as nothing has been mentioned about the finality or otherwise of the decisions made by that authority, it is an indication that the authority is to act as a court in which case it is not necessary to mention whether they are final or not as all the incidents of exercising jurisdiction as a court would necessarily follow. We are in broad agreement with this conclusion.' 'Para 11 :- We are accordingly of the opinion that even though the State Government is authorised to appoint an appellate authority under S. 6C, the legislature clearly indicated that such appellate authority must of necessity be a judicial authority. Since under the Constitution the courts being the repository of the judicial power and the officer presiding over the court derives his designation from the nomenclature of the Court, even if the appointment is made by the designation of the judicial officer the appellate authority indicated is the court over which he presides discharging functions under the relevant Code and placed in the hierarchy of courts for the purposes of appeal and revision. Viewed from this angle, the Sessions Judge though appointed an appellate authority by the notification, what the State Government did was to constitute an appellate authority in the Sessions Court over which the Sessions Judge presides. The Sessions Court is constituted under the Criminal P.C. and indisputably it is an inferior criminal court in relation to High Court. Therefore, against the order made in exercise of powers conferred by S. 6C a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under sections 435 and 439 of the Criminal P.C. 1898 which was in force at the relevant time and such revision application would be competent.'

10. In the instant case, there is nothing in S. 13 of the Act to infer an intention on the part of the legislature of conferring appellate powers on the Sessions Court as such. Besides, the decision of the Sessions Judge is also made final. In the circumstances, the decisions in Ramayya (1975 Cri LJ 144) (Andh Pra) (FB) and Thakurdas (1978 Cri LJ 1) (SC) will not be of any assistance to the petitioner.

11. The Government Pleader also brought to my notice a Full Bench decision of this Court in Krishnaji Venkatesh Shirodkar v. Gurupada Shivaram Kavalekar ILR (1978) 2 Kant 1585 while urging that only because the words 'The Sessions Judge' instead of 'Sessions Court' have been used in S. 13(3) of the Act and the decision of that authority is made final therein we should not conclude that conferment of appellate powers was not to Sessions Court but was only on a statutory authority named or described therein. But the decision in Krishnaji on this question was mainly based on a previous decision of this court in Ganesh Rao v. Sarphina D'Souza Bai : AIR1976Kant4 which itself proceeded relying on a Full Bench decision of the Allahabad High Court in Chatur Mohan v. Ram Bihari : AIR1964All562 . In these two cases much emphasis was laid on the words 'having jurisdiction' used in the relevant provisions following the name of the authority and qualifying that name. The learned Judges are of the view and rightly so that those words spell out the intention of the legislature to confer the appellate power on a pre-existing judicial authority, i.e., the court. 'Jurisdiction' as defined in the Longman Dictionary of Contemporary English means 'The power held by an official or an official body, especially a court of law - the right to use such power.' But it may be noted that under sub-section (3) of S. 13 of the Act, there is no such indication. The aforesaid decisions also cannot be relied upon by the Government Pleader to say that Sessions Judge means Sessions Court.

12. In examining a question like this we have also to take into consideration the nature of the proceeding under challenge before the Sessions Judge. The appeal provided to the Sessions Judge is against the order made by the Director of Sericulture. He is one of the authorities administering the Act. The Act is a remedial enactment. Any person violating the relevant provisions of the Act is not merely made liable for a penalty to be levied by these authorities after a due enquiry but also to forfeiture of the commodity concerned. These powers by themselves will not convert such proceedings as proceedings of a criminal nature or penal in nature. Such regulatory measures of confiscation, forfeiture or levying of penalty are also conferred under other enactments, e.g., Income Tax, the Land Revenue Act etc., Further when dealing with the appeal preferred to him under S. 13(3) of the Act, the Sessions Judge is not guided by the provisions of the Code; but by a procedure evolved by him in accordance with the principles of natural justice.

13. Thus, after considering all aspects of the matter, I am of the view that a Sessions Judge exercising his powers under sub-section (3) of S. 13 is not an inferior criminal court and therefore, this court, cannot deal with such orders either exercising its revisional powers under S. 397 read with S. 401 or its inherent powers under S. 482 of the Code. Accordingly, these petitions are dismissed in limine.

14. Petitions dismissed.


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