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Marrapu Narayanamma Vs. Marrapu Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 189 of 1957
Judge
Reported inAIR1960AP425; 1960CriLJ1070
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 9(3), 409, 409(2) and 537
AppellantMarrapu Narayanamma
RespondentMarrapu Satyanarayana and ors.
Appellant AdvocateG. Balaparameswari Rao and ;K.V. Subrahmanya Narasu, Advs.;Mohammed Mirza, Additional Public Prosecutor
Respondent AdvocateO. Chinnappa Reddy and ;G. Ramanujulu Naidu, Advs.
DispositionAppeal allowed
Excerpt:
criminal - powers of in situ judge - sections 9 (3), 409 and 537 of criminal procedure code, 1898 - respondents convicted by judge appointed to fill up vacancy of district and sessions judge - high court permitted judge to perform duties of district judge - assumed powers of sessions judge as well and transferred certain cases to himself - under section 409 additional sessions judge and assistant sessions judge may only hear those cases which are directed by general or special order - section 409 (2) restricted by provisions conferred under section 9 (3) - held, judgment passed by in situ judge null and void. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj].....krishna rao, j.1. this is a complainant's appeal under section 417, sub-section (3) of the code of criminal procedure (hereinafter mentioned as the code) against the acquittal' of respondents 1 to 7 by the lower appellate court and raises an important question of law as to the construction and effect of section 409, sub-section (2) of the code.2. the material facts are briefly these : respondents 1 to 7 were convicted and sentenced in c. c. no. 124 of 1956 on the file of the judicial first class magistrate, parvathipur, for certain offences punishable under section 494, indian penal code. they appealed to the court of sessions, visakhapatnam, and the appeal was admitted by the sessions judge as criminal appeal no. 387 of 1956. before the appeal came on for hearing, the sessions judge who.....
Judgment:

Krishna Rao, J.

1. This is a complainant's appeal under Section 417, Sub-section (3) of the Code of Criminal Procedure (hereinafter mentioned as the Code) against the acquittal' of respondents 1 to 7 by the lower appellate court and raises an important question of law as to the construction and effect of Section 409, Sub-section (2) of the Code.

2. The material facts are briefly these : Respondents 1 to 7 were convicted and sentenced in C. C. No. 124 of 1956 on the file of the Judicial First Class Magistrate, Parvathipur, for certain offences punishable under Section 494, Indian Penal Code. They appealed to the Court of Sessions, Visakhapatnam, and the appeal was admitted by the Sessions Judge as Criminal Appeal No. 387 of 1956. Before the appeal came on for hearing, the Sessions Judge who was also the District Judge, Sri B.T.M. Raghavacharyulu, died on 3rd January 1957.

The State Government appointed Sri K. Jagannatha Rao on 15th February 1957, to act as District and Sessions Judge in the vacancy and be assumed charge of the office on 27th February, 1957. Meanwhile on 8th January 1957, the High Court permitted the Additional District and Sessions Judge, Visakhapatnam Sri W.V.V. Sundara Rao, to perform the current duties of the office of the District. Judge of Visakhapatnam. On 8th February. 1957, Sri W.V.V. Sundara Rao passed an order making over Criminal Appeal No. 387 of 1957 to himself, being apparently under an erroneous impression that he could assume the powers of the Sessions Judge under Section 409(2) of the Code. He heard the appeal on the same day and delivered judgment on 21st February, 1957, acquitting respondents 1 to 7.

3. It is common ground that Sri W.V.V. Sundara Rao was not appointed Sessions Judge for the Court under Section 9(1) of the Code and that he had, therefore, no power under Section 409(2) to make over the appeal for being beard by himself as Additional Sessions Judge. It is also not disputed that the complainant raised no point of jurisdiction at the hearing before the learned Additional Sessions Judge and objected to his jurisdiction for the first time only in this Court. The question for decision is whether, in these circumstances, the judgment of acquittal is liable to be set aside in law or is a nullity.

4. I may refer at this stage to the material portions of Sees. 408 and 409 of the Code (as amended by Act XXVI of 1955) which read as follows:

'Section 408 : Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate ..... may appeal to the Court of Session.

* * * * *

'Section 409 : (1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions or by an Additional Sessions Judge or an Assistant Sessions Judge:

Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by any Magistrate of second or third class.

(2) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him.' The words of Section 409(2) are plain and emphatic. They enjoin on Additional Sessions Judges and Assistant Sessions Judges to hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to them. The word 'only' conveys by necessary implication that they are prohibited from hearing other appeals filed in the Court of Session. In the case of Assistant Sessions Judge, there is a further limitation under proviso to Sub-section (1) on their powers, namely that they cannot hear any appeal unless it is of a person convicted on a trial held by a Magistrate of the Second or Third Class.

5. The first question that arises for consideration is whether Section 409(2) is a provision affecting the jurisdiction of Additional Sessions Judges and Assistant Sessions Judges. If it affects the competency of their jurisdiction, the curative provisions of Section 537 of the Code would be of no avail. Jurisdiction means the power to hear and determine a given case. As observed by Mukherjee, J. in Gurdeo Singh v. Chandrika Singh, ILR 36 Cal 193 at p. 206.

'Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any Judicial power in relation to it.'

The elements that usually make up competency of jurisdiction are jurisdiction (1) over the persons litigating, (2) over the subject-matter, and (3) over the questions which the Court decides. See Black on Judgments, Page 215. But the Legislature is not bound to impose limitations on jurisdiction which come only under one or other of these heads. As I have pointed out above, Section 409(2) of the Code, necessarily means that Additional Sessions Judges and Assistant Sessions Judges are prohibited from hearing any appeal filed in the Court of Sessions, unless it is covered by the order of the State Government or is transferred to them by the Sessions Judge. Section 409(2) is, therefore, clearly a provision restricting their jurisdiction. It is not a mere procedural provision for enabling appeals to be heard by them and for the distribution of work between them and the Sessions Judge.

6. The second question that arises for consideration is what is the effect of a contravention of Section 409(2), as the Code itself does not say anything about it. Conferment of jurisdiction is based on the policy of the legislature. An individual may waive or agree to waive provisions made solely for the benefit and protection of his private rights, but not provisions in which any public right or legislative policy is involved. The well-settled principle of law in that jurisdiction cannot be given by consent of parties and that all proceedings of a Court, which had no inherent jurisdiction to entertain the matter, are void.

But if the Court had such inherent jurisdiction and there is only an irregularity in the exercise of the jurisdiction, the irregularity may be of a kind capable of being waived by the parties. See Ledgard v. Bull, ILR 9 All 191 (PC) and ILR 36 Cal 193. Inherent jurisdiction in this context means jurisdiction that is vested in the particular Court or Judge, It cannot be said that Additional Sessions Judges and Assistant Sessions Judges have inherent jurisdiction to entertain appeals. Under Section 408, the appeals lie only to the Court of Session.

In the absence of an order of the State Government or of a transfer by the Sessions Judge, Additional Sessions Judges and Assistant Sessions Judges have no lawful seisin of any appeal filed in the Court Such an order or a transfer is a condition precedent ft their exercising the Jurisdiction vested in them by virtue of their appointment under Section 9(3) and to the hearing and determination by them of any appeal filed in the Court. As a rule of construction, unless a different intention appears, a condition precedent to the exercise of jurisdiction cannot be waived. Thus it is stated in Maxwell on the Interpretation of Statutes, 10th Edition (1953) at page 387:

'Where, however, the act or thing, required by the statute is a condition precedent to the jurisdiction of the tribunal, competence cannot be dispensed with, and if it be impossible the jurisdiction fails. It would not be competent to a Court to dispense with what the Legislature had made the indispensable foundation of its Jurisdiction.'

Sri O. Chinnappa Reddy, the learned counsel for the respondents relied in this connection on the decision of a Full Bench of this Court in Venkateswarlu v. Satyanarayana, 1956 Andh LT 152 : ((S) AIR 1957 Andh Pra 49). But the question there turned on a construction of the Appellate Side Rules which were held not to oust the jurisdiction of a Division Bench of two Judges to hear appeals whose value does not exceed Rs. 7500/-.

Here, the Legislature has clearly stated in Section 409(2) that only such appeals as are covered by an order of the State Government or are made over by the Sessions Judge, shall be heard by an Additional Sessions Judge or an Assistant Sessions Judge. The necessary implication is that an Additional Sessions Judge or an Assistant Sessions Judge has no power or jurisdiction to hear other appeals.

7. I am fortified in this conclusion by a decision of the Full Bench of the Patna High Court in Kameshwar Singh v. Dharamdeo Singh, (S) : AIR1957Pat375 , where it was held that an Additional Sessions Judge or an Assistant Sessions Judge, as a judge of the Court of Session, has no power to receive and admit appeals filed in the Court and the Assistant Sessions Judge's judgment of acquittal was set aside on that ground. The learned Judges pointed out that in the context of Section 409(1) the expression 'Court of Session' is used as synonymous with the expression 'Sessions Judge.' Sanai J., said at p. 380 :

'In the absence of an order of transfer by him (Sessions Judge) and in the absence of any direction of die State Government, as Additional Sessions Judge or an Assistant Sessions Judge has no jurisdiction even to hear an appeal.' There are a number of other provisions in the Code such as Sections 17 (4), 123 (3-B). 193 (2) and 438 (2) which consistently show that the intention of the Legislature throughout is to restrict the exercise of the jurisdiction conferred by Section 9(3) on Additional Sessions Judges and Assistant Sessions Judges. It is, therefore, impossible to regard the transfer of an appeal under Section 409(2) by the Sessions Judge as a mere procedural or administrative matter.

8. It follows that the judgment and order of the learned Additional Sessions Judge which has given rise to this appeal, is without jurisdiction and a nullity. I agree with the order proposed by my learned brother that Criminal Appeal No. 387 of 1956 should be sent back to the Court of Session, Visakhapatnam, for disposal according to law.

Sanjeeva Row Nayudu, J.

9. The simple point that arises for consideration in this Criminal Appeal is whether an Additional Sessions Judge can hear and dispose of a Criminal Appeal which has not been made over to him by the Sessions Judge, in the absence of a general or special order made by the State Government under Section 409(2) of the Code of Criminal Procedure. Section 409 is as follows :

'(1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge:

Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by any Magistrate of Second or Third Class.

(2) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him.

It is not disputed that the State Government had not made any general or special order directing the Additional Sessions Judge of Visakhapatnam to hear any criminal appeals against the judgment of a First Class Magistrate and it is also not disputed that the Sessions Judge had not made over any criminal appeals to the Additional Sessions Judge, as the Sessions Judge himself had died and was not functioning on the date when the appeal in question was heard. The facts are as follows : There was a complaint in the Judicial First Class Magistrate's Court of Parvathipuram which was enquired into in C. C. No. 124 of 1956 and the said First Class Magistrate had convicted the accused persons and sentenced them to varying terms of imprisonment and fine for the offence under Section 494, Indian Penal Code and under S. 17 of the Hindu Marriage Act (XXV of 1955). The judgment of the first court was delivered on 31st October, 1956.

An appeal, Criminal Appeal No. 387 of 1956 was preferred to the Court of Session at Visakhapatnam on 14th November 1956 and was pending on 3rd January, 1957. when the Sessions Judge, Sri B. T. M. Raghava Chari died. By then there was an Additional Sessions Judge at Srikakulam. Although the Sessions Judge passed away on 3rd January 1957, no orders, apparently, had been issued by the Government appointing a Sessions Judge for the Court of Session, Visakhapatnam Division, for more than a month. It was on 27th February, 1957, that the Sessions Judge appointed to the Court of Session, Visakhapatnam, took over charge.

10. Meanwhile on 8th February, 1957, the Additional Sessions Judge, Visakhapatnam, passed an order transferring Criminal Appeal No. 387 of 1956 to himself and heard it on the same day. He pronounced judgment in that appeal on 21st February, 1957, allowing the appeal and acquitting all the accused persons.

11. It is contended by Sri Balaparameswara Rao, the learned counsel for the appellant that the order of the Additional Sessions Judge directing transfer of the appeal in question to himself, as well as his act of hearing and disposing of the appeal, were without jurisdiction and illegal and require to be set aside. In support of this, it is contended by the learned counsel that the Additional Sessions Judge's powers to hear and dispose of criminal appeals are derived under Section 409(2) of the Code of Criminal Procedure.

This provision empowered the Additional Sessions Judge to hear only such appeals as (1) the State Government may by general or special order direct that they should he heard by him, or (2) the Sessions Judge of the division may make over to him. He points out that in this case there is no special order by the State Government. There is only one general order G. O. Ms. No. 934, dated 13th April, 1956, in this case empowering the Additional Sessions Judge to hear appeals against the judgment of the Second and Third Class Magistrates. There is no general or special order empowering the Additional Sessions Judge, Visakhapatnam, to hear any particular appeals or generally any appeals against the judgments of the First Class Magistrates.

It is also not disputed that as there was no Sessions Judge in office on 8th February 1957 it cannot be said that there was a valid order making over the criminal appeal in question to be heard by the Additional Sessions Judge in this case. In other words on the date, namely 8th February, 1957, on which the Additional Sessions Judge heard and disposed of the criminal appeal in this case, he had no authority and therefore no jurisdiction to hear that appeal. That being the case the order of the Additional Sessions Judge disposing of the appeal is without jurisdiction and we have no difficulty in directing that the same may be set aside.

12. It is contended by the learned counsel for the respondents that as both the parties did not object to the hearing of the appeal, the hearing and disposal of the appeal by the Additional Sessions Judge is a mere irregularity. This contention overlooks the important point of law that any amount of consent cannot confer jurisdiction, particularly in criminal matters wherein the jurisdiction rests on the judicial power being invested in a certain tribunal to exercise a particular judicial act or reach any particular judicial decision.

In this case as the Additional Sessions Judge had no judicial power to hear and dispose of a criminal appeal arising out of the judgment of a First Class Magistrate, any amount of consent or failure to raise objection or waiver would not remedy the situation. In this connection reliance is sought to be placed on a decision reported in Madhava Rao v. Suryarao, : AIR1954Mad103 (FB). The following observations at p. 1051 (of ILR Mad) : (at p. 105 of AIR) are relevant:

'The learned counsel appearing for the first respondent, Suryarao, raised a preliminary objection on the ground that as no exception was taken by the petitioners, who were respondents before the Deputy Registrar, regarding the exercise of jurisdiction by the Deputy Registrar and as they acquiesced in the exercise of jurisdiction by him, they are precluded from now raising the present contention. Reliance was placed upon a decision of this Court in Latchmanan Chettiar v. Corporation of Madras, ILR 50 Mad 130 : (AIR 1927 Mad-130) (FB). We think, however, that this preliminary objection is not well founded. The decision relied on was not a case of initial want of jurisdiction. As pointed out by the Supreme Court in the decision United Commercial Bank v. Their Workmen, : (1951)ILLJ621SC , no amount of consent would cure the initial want of jurisdiction. It is not open to a person to confer jurisdiction by consent and no amount of acquiescence would confer jurisdiction upon a tribunal or a court, where such jurisdiction did not exist.'

13. We are fully in agreement with these observations which apply with even greater force to criminal matters and to the powers exercisable by criminal courts under the Code of Criminal Procedure.

14. It is contended by the learned counsel for the respondents that under Section 408 of the Code of Criminal Procedure, an appeal lies to the Court of Sessions and under Section 9(3), Criminal Procedure Code, an Additional Sessions Judge exercises jurisdiction in a Court of Session. This being the case, Mr. Chinnappa Reddy, counsel for the respondents, contended that it cannot be said that there was an inherent incapacity to hear appeals from judgments of the First Class Magistrates for, unlike in the case of Assistant Sessions Judge, there is no bar on the power or capacity of the Additional Sessions Judge to hear appeals from the judgments of the First Class Magistrates, and all that is required to enable him to do so was either a formal order by the Sessions Judge making over to him the appeal for hearing on a general or special order by the State Government in this behalf.

From this Mr. Chinnappa Reddy, contends that what was lacking in this case was either a mechanical and routine administrative order by the Sessions Judge making over the appeal to the Additional Sessions Judge or a similar administrative order by the State Government empowering the Additional Sessions Judge to hear and dispose of appeals against judgments of First Class Magistrates. While it is true that the administrative order was not there, it is Contended, the judicial competency is recognised, and therefore the hearing of the appeal by the Additional Sessions Judge in the absence of the administrative order could not be deemed to go to the root of the matter nor could it be said that the Additional Sessions Judge did not have inherent jurisdiction to hear and dispose of the criminal appeal in question.

Consequently Mr. Chinnappa Reddy contended that it was only an irregularity which must be regarded as not affecting the merits of the disposal and in any event must be deemed to have been cured by consent and acquiescence by the parties. In support of this, the learned counsel .relied on the decision reported in 1956 Andh LT 152 : ((S) AIR 1957 Andh Pra 49) (FB). In this case the Full Bench held that a Bench of two Judges is competent to hear a first appeal not exceeding Rs. 7,500/- in value, even when it is not referred to it by a single Judge under R. 1 of the Appellate Side Rules which requires that such appeals, that is of the value not exceeding Rs. 7,500/- should be heard and determined by one Judge who is given the power and discretion to refer to a Bench of two Judges.

The decision in this case proceeded on the footing that the Bench of two Judges is fully competent to hear and dispose of the appeal in question, that the mere omission of the matter being posted in the first instance before a single Judge followed by a reference to him to a Bench, did not affect the jurisdiction of the Court to hear and dispose of the matter. We have no quarrel with this proposition which, however, does not apply to the facts of the present case.

15. It is contended by the learned counsel for the respondents relying on the decision in ILR 9 All 191 (PC) that normally questions of jurisdiction turn upon the competency of the Court, that is, judicial power and the territorial jurisdiction. He contends that once there is the competency to try coupled with a submission to jurisdiction without objection, the mere fact that other formalities had not been complied with ought not to make any difference.

He points out that after all, Section 409 of the Cr. P. C. deals only with allocation of duties between the Sessions Judge, the Additional Sessions Judge and the Assistant Sessions Judge without involving the competency of the Additional Sessions Judge to hear appeals from the judgments of the First Class Magistrate, as it docs in the case of the Assistant Sessions Judges.

16. This argument overlooks the simple point that an Additional Sessions Judge is not vested with any absolute power of hearing appeals, as we find in the case of a Court of Session. Section 408 of the Cr. P. C. is as follows:

'Any person convicted on a trial held by anAssistant Sessions Judge, a District Magistrate or(any other Magistrate), or any person sentencedunder Section 349 (or in respect of whom an order hasbeen made or a sentence has been passed under Section380) (by any Magistrate), may appeal to the Courtof Session:

Provided as follows:

xxx xxx xxx

(b) When in any case an Assistant Sessions Judge or a Magistrate specially empowered under Section 30 passes any sentence of imprisonment for a term exceeding four years ..... the appeal (of all or any of the accused convicted at such trial) shall lie to the High Court.

(c) When any person is convicted by a Magistrate of an offence under Section 124-A of the I. P. C. (XLV of 1860), the appeal shall lie to the High Court,'

Section 409 specially mentions at the beginning of the section that 'subject to the provisions of this section,' an appeal to the Court of Session or Sessions 'Judge (provided for in Section 408) shall be heard: (i) by the Sessions Judge; (ii) or by an Additional Sessions Judge;

(iii) or by an Assistant Sessions Judge. The other provisions of this section provide:

'(i) That no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of person convicted on trial held by any Magistrate of Second or Third Class; and

(ii) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct, or as the Sessions Judge of the division may make over to him.'

17. In view of the advised use of the phrase 'subject to the provisions of this section' and also the phrase 'only such appeals' in Clause (2), we have no doubt in our minds that the Legislature meant that the Additional Sessions Judge would have power to hear only such appeals as are directed by a general or special order of the State Government to be heard by him or as may he made over to him by the Sessions Judge of the Division. Thus, the jurisdiction and the judicial power and capacity to hear appeals are derived by an Additional Sessions Judge only under Section 409 and as this power is made expressly subject to the other provisions of the section, we have no difficulty in holding that in the absence of a general or special order by the State Government or in the absence of any order by the Sessions Judge making over the appeal to the Additional Sessions Judge, it would not be competent for him to hear any such appeal from the judgment of a First Class Magistrate.

18. In this connection it would be useful to refer to the following passage in Maxwell's Interpretation of Statutes (10th Edn., p. 298);

'A power given to the Court, subject to the restrictions of the Act, to authorise the grant of leases, followed by a proviso that any person entitled to the possession of settled estates might apply to the Court for the exercise of the power, was held not exercisable except on the application or such a person.'

19. In Taylor v. Taylor (1876) 1 Ch D 426 at p. 431 Jessel, M. R. observed as follows:

'When a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted, For instance, the 16th Section says that the proceeding is to be by petition. It is enabling, I know, in form, that the application may be by petition; but no other process can be adopted. That has been decided on a great variety of Acts where the application has been directed to be by petition, and it has been laid down that that being the mode pointed out by the Act which conferred the jurisdiction, you must exercise the jurisdiction (as the End section of this Act says in terms, though it was not necessary) according to the provisions of the Act.' In this case as no such orders either by the State Government or by the Sessions Judge have been made, the Additional Sessions Judge, Visakhapatnam, had no jurisdiction to hear the appeal in question. This position is further strengthened by a reference to S. 193 (2) of the Cr. P. C. which is as follows:

' .........

2. Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government by general or special order may direct them to try, or ......as the Sessions Judge of the division, by general or special order, may make over to them for trial.'

It may not be out of place to make reference in this connection to Sections 438(2), Cr. P. C. and 528 (1-C), Cr. P. C. The former provision empowered the Additional Sessions Judge to exercise all the powers of revision exercisable by the Sessions Judge under Ch. XXXII of the Code dealing with reference and revision in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. So that, no transfer of a case is made by the Sessions Judge, the Additional Sessions Judge cannot exercise powers of revision exercisable by the Sessions Judge in respect of that case. Section 528 (1-C) gives power of transferring cases only to the Sessions Judge. The Additional Sessions Judge is nowhere given that power. It should be remembered that the Code makes a clear distinction between the expressions 'Court of Sessions', 'Sessions Judge', 'Additional Sessions Judge', and 'Assistant Sessions Judge'. Section 9 (1) of the Cr. P. C. provides that the State Government shall establish a Court of Session for every Sessions Division and appoint a Judge of such Court.

Section 9(3) provides that the State Government may appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more Courts of Session. Section 404, Cr. P. C. makes it clear that no appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code or by any other law for the time being in force. As already pointed Out, Section 408 gives general power to appeal to the Court of Session when a person is sentenced by an Assistant Sessions Judge, District Magistrate or any other Magistrate.

20. It may also be necessary to notice in this connection that Section 409, Cr. P. C., as it stands now was substituted for the previous section by Act XXVI of 1955. The previous section did not contain the words 'Subject to the provisions of this section.'

21. Taking all the facts and the circumstances of the case into consideration, we have no doubt in our minds that the Additional Sessions Judge has no jurisdiction (i) to transfer the appeal in question from the file of the Court of Session to himself, which could only be done by a Sessions Judge by a special order; and (ii) to hear the appeal in question, there having been no general or special order by the State Government empowering him to hear such appeals.

22. In the result this Criminal Anneal is allowed.The judgment and order of the Additional SessionsJudge made in Criminal Appeal No. 387 of 1956are set aside and the appeal is sent back to the fileof the Court of Session, Visakhapatnam, for disposalaccording to law.


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