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T.V. Sarma Vs. Achuthuni Nagakoteswararao and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1977CriLJ19
AppellantT.V. Sarma
RespondentAchuthuni Nagakoteswararao and ors.
Excerpt:
.....renders the order exercising the power invalid or irregular. as observed already, it would have been better if the learned sessions judge mentioned the, reason for assigning the bail applications to the additional sessions judge, but the......judge passed only a bald order of 'made over' without mentioning the reasons for making over the bail applications. sri sarma contends that in so far as the order of the sessions judge making over the applications to the additional sessions judge is illegal, the additional sessions judge did not' have any valid jurisdiction to dispose of the applications. it is therefore urged that the order passed by the additional sessions judge granting bail should be cancelled.4. section 194 of the code provides for transfer of trial cases by the sessions judges to the additional or assistant sessions judges, section 481 deals with the transfer of criminal appeals while section 400 deals with the transfer of revision cases. as rightly contended by sri sarma, the only provision under which a.....
Judgment:
ORDER

Madhusudan Rao, J.

1. This Miscellaneous Petition under Section 439(2), Criminal Procedure Code, 1973, is for cancellation of the bail granted to the accused persons in P.R.C. No. 1 of 1975 on the file of the Additional Munsif Magistrate's Court, Chirala.

2. The Additional Munsif Magistrate, Chirala committed the accused persons to take their trial for offences punishable under Sections 120B, 120B read with 302, 201 and 466 I.P.C. under an order dated 10-2-1976. All the accused persons were on bail before they were taken into custody in pursuance to the committal order. They preferred urgent applications for bail under Crl.M.P. Nos. 35 and 37 of 1976 before the Sessions Judge. Ongole on 10-2-1976 itself. On each of these two applications, the learned Sessions Judge passed the following order.

P.P. is given notice. Made over to the Additional Sessions Judge, for disposal.

The applications having thus been sent to the Additional Sessions Judge, the learned Additional Sessions Judge passed orders granting bail to all the accused under his order dated 10-2-1976.

3. Sri T.V. Sarma, the petitioner herein raised only one contention and that is in regard to the jurisdiction of the Additional Sessions Judge to pass the orders of bail in favour of the Accused. It is argued that an Additional Sessions Judge has no jurisdiction to dispose of an application for bail except when he is validly invested with such jurisdiction by the Sessions Judge under the circumstances mentioned in Section 10(3) of the Code of Criminal Procedure. It is vehemently argued that though the provision in Section 10(3) in the Code is almost the same as the provision in Section 17(4), of the Old Code, the Legislature has purposefully changed the word 'incapacity' in the old Section 17(4) to the word 'inability' in the Section 10(3) of the new Code and that no Sessions Judge can make over any application for bail to an Additional Sessions Judge except when he is actually absent from the court or is physically unable to dispose of the application. Another ground of attack of Sri Sarma against the validity of the order of the Sessions Judge making over the application for bail to the Additional Sessions Judge is that the Sessions Judge passed only a bald order of 'made over' without mentioning the reasons for making over the bail applications. Sri Sarma contends that in so far as the order of the Sessions Judge making over the applications to the Additional Sessions Judge is illegal, the Additional Sessions Judge did not' have any valid jurisdiction to dispose of the applications. It is therefore urged that the order passed by the Additional Sessions Judge granting bail should be cancelled.

4. Section 194 of the Code provides for transfer of trial cases by the Sessions Judges to the Additional or Assistant Sessions Judges, Section 481 deals with the transfer of criminal appeals while Section 400 deals with the transfer of revision cases. As rightly contended by Sri Sarma, the only provision under which a Sessions Judge can make over an application for bail to an Additional Sessions Judge is Section 10(3) of the new Code which reads:

The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.

Section 17(4) of the Old Code was as follows:

The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Asst Sessions Judge or if there be no Additional or Assistant Sessions Judge, by the District Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application.

5. Admittedly in the instant case, the Sessions Judge was not absent. The only question is whether the transfer is valid with reference to the words 'inability to act' in the provision. Drawing the attention of the court to the observations in State v. Mohinder Singh AIR 1964 Punj 543 : 1964-2 Cri LJ 728, Sri Rama Sarma contends that 'incapacity to act' means not only physical incapacity but also incapacity caused by other reasons like, pressure of work. He points out that the Legislature has deliberately avoided the words 'incapable of acting' and purposefully used the words 'inability to act' in the new Section 10(3) with a view to restrict the application of the provision to cases of physical inability or illness alone. In the case relied when the old Code was in force, the Sessions Judge assigned an application for bail for disposal to the Additional Sessions Judge on the ground that he was busy in an Election Petition and that he had therefore no time to dispose of the application. It was contended before the High Court that the order of the Sessions Judge was illegal in so far as the expression 'incapable of acting' included only physical incapacity due to illness or such other cause. The High Court overruled the contention holding that the Sessions Judges can assign urgent application for bail to the Additional Sessions Judge whenever there is congestion of work. The contention of Sri Sarma that by changing the words from 'incapable of acting' to 'inability to act', the Legislature wanted to narrow down the scope of the provision does not commend itself to me as correct, 'inability to act' is the same as 'incapable of acting'. The words 'inability' and 'incapacity' are synonymous. According to the Oxford English Dictionary, 'incapability' means, 'the quality or condition of being incapable; incapacity, inability, incompetence' and 'inability' means, 'the condition of being unable; want of ability, physical, mental, or moral; lack of power, capacity or means'. According to the Corpus Juris Secundum, Vol. 42, page 498, 'incapable' means, 'lacking or wanting in natural ability, capacity, or qualifications' and 'inability' (page 493) means, 'the state of being unable, physically, mentally, or morally, incompetency; lack of ability, want of sufficient power, strength, resources, or capacity; lack of power capacity or means, want of ability, without ability.' It is also pointed out in the Corpus Juris Secundum that 'the term (inability) has been held to be as broad as, or synonymous with, 'incapacity' and distinguished from 'lessened capacity'. In common parlance, while 'incapacity' or 'incapability' is generally used to connote physical incapacity or incapability, 'inability' is used as a term of wider amplitude, meaning not only physical disability or incapacity but any other kind of want of ability to do a particular act whatever may be the reason for the lack of ability. Though some of the High Courts interpreted the expression 'incapable of acting' as meaning not only physical 'inability to act, but also incapability or inability due to any other reason, the Legislature perhaps wanted to make the matter absolutely clear and uncontroversial by using the words 'inability to act'. I am therefore clearly of the view that a Sessions Judge can assign urgent applications for disposal to an Additional Sessions Judge not only when he is physically incapable of acting but also when he is otherwise unable to act due to pressure of other work.

6. The question now arises whether the order passed by the Sessions Judge making over the applications for bail without stating the reason viz., his inability to act, is valid and proper. It cannot be gainsaid that the Sessions Judge had every power to make over the applications for bail under Section 10(3) of the Code. Sri Sarma contends that where an authority is invested with the power to do a particular act and the exercise of that power is controlled by the existence of certain circumstances, it is incumbent on the authority while exercising the power to expressly state that the authority was exercising the power on account of the existence of the circumstances under which the power is exercisable. It would no doubt be better if an authority exorcising a power conferred on it by statute exercises the power in the manner contended by Sri Sarma, but it cannot be said that the non-mention by the authority of the circumstances which enabled the exercise of the power renders the order exercising the power invalid or irregular. Illustration (e) to Section 114 of the Indian Evidence Act provides that the Court may presume that 'judicial and official acts have been regularly performed'. Where a court is empowered to pass an order under certain circumstances and the court passes the order, it may have to be presumed that the circumstances under which the court could have passed the order, existed until the non-existence of the necessary circumstances is established. It is not the case of the petitioner that the Sessions Judge did not have pressure of other work on the day when he made over the bail application to the Additional Sessions Judge. What all Sri Rama contends is that the Sessions Judge was not physically unable to dispose of the applications and that he did not also mention the reason in the order assigning the applications to the Additional Sessions Judge. As observed already, it would have been better if the learned Sessions Judge mentioned the, reason for assigning the bail applications to the Additional Sessions Judge, but the. mere non-mention of the reason, does not in any way affect the validity of the order which he is empowered to pass under Section 10(3) of the Code.

7. For the reasons recorded, it is held that the orders passed by the Sessions Judge making over the bail applications to the; Additional Sessions Judge are valid and that the Additional Sessions Judge had all the necessary jurisdiction to dispose of the applications. This Miscellaneous petition therefore fails and is accordingly dismissed.


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