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Municipal Board Vs. Bhim Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. Nos. 1502, 1503 and 1505 of 1960
Judge
Reported inAIR1962All450
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 9, 17(3), 435 and 561A
AppellantMunicipal Board
RespondentBhim Singh
Appellant AdvocateShanti Bhushan, Adv.
Respondent AdvocateAsstt. Govt. Adv.
Excerpt:
.....- revisions - sections 9, 17(3), 435 and 561-a of the criminal procedure code, 1898 - assistant sessions judge is subordinate to the sessions judge and an inferior criminal court for the exercise of the revisional jurisdiction - sessions judge can entertain revisions against the orders of the assistant sessions judge passed in exercise of appellate jurisdiction - practice of high court not to entertain revision directly - court of the sessions to be approached first - high court entertaining the revision petition directly without approaching the sessions court is no illegality just a departure from the practice. - - this section, clearly provides :nothing in this code shall be deemed to limit or affect the inherent power of the high court to make such orders as may be necessary to..........1505 of 1960 by the municipal board of bijnor against the judgments of sri sachidanand, assistant sessions judge, bijnor whereby criminal appeals preferred by bhim singh, baldeo singh kishore and kailash chandra alias munnoo were allowed. the criminal revisions were presented, before me as application judge on 6-9-1960 with office reports dated 31-8-1960. the office did not make a note that the revisions were being presented in court directly without first of all approaching the sessions judge. this fact was also not brought to the notice of the application judge, but the facts as detailed in the hearing of the revisions would have indicated that no revision had been made before the sessions judge and the applicant was challenging the order of discharge directly before the high court,.....
Judgment:

D.S. Mathur, J.

1. This order governs Criminal Revisions Nos. 1502 to 1505 of 1960 by the Municipal Board of Bijnor against the judgments of Sri Sachidanand, Assistant Sessions Judge, Bijnor whereby Criminal Appeals preferred by Bhim Singh, Baldeo Singh Kishore and Kailash Chandra alias Munnoo were allowed. The Criminal Revisions were presented, before me as Application Judge on 6-9-1960 with office reports dated 31-8-1960. The office did not make a note that the revisions were being presented in Court directly without first of all approaching the Sessions Judge. This fact was also not brought to the notice of the Application Judge, but the facts as detailed in the hearing of the revisions would have indicated that no revision had been made before the Sessions Judge and the applicant was challenging the order of discharge directly before the High Court, It cannot, therefore, be said that the applicant was guilty of, or was in any way responsible for concealment of facts.

The fact, however, remains that the order of admission was passed without the Court being informed, in clear words, that no revision had been filed before the Sessions Judge. The applicant cannot, therefore, escape the responsibility (for improper admission of the revisions, but it was mentioned by the learned Advocate that he was under the impression that no revision, lay before the Sessions Judge as his was a Court of co-ordinate jurisdiction as far as Criminal Appeals were concerned and consequently the revisions were filed directly before the High Court and it was not brought to the notice of the Application Judge that such a recourse was being adopted.

2. An order passed in a Criminal proceeding can be modified or quashed in exercise of the inherent powers under Section 561-A, Cr. P. C. This section, clearly provides :

'Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.'

The first and the last clauses of Section 561-A, Cri. P. C are not applicable to the facts of these cases. In other words, this Court would be Justified to vacate the orders dated 6-9-1960 and to reject the revisions on the ground that the Sessions Judge had not first been approached only if it is necessary to prevent abuse of the process of the Court. If the applicant was guilty of concealment of material facts or was not acting in good faith when full facts were not detailed in the petition, this court would have been justified to interfere by vacating the orders already passed so that no one may dare to approach this Court with incomplete facts.

As already mentioned above the present cannot be said to be cases in which the applicant was guilty of concealment of facts. It is different thing that if it was noticed that the Sessions Judge had not been moved, the revisions may not have been admitted; but it is likely that if the revisions were being summarily dismissed on the above technical ground, the teamed Advocate for the applicant would have argued that no revision lay before the Sessions Judge. This point has been argued before me in detail and consequently it is possible that the revisions may have been admitted so that this question may be decided by this Court for the guidance of the litigants, the members of the Bar and also the subordinate courts. To put it differently, the present are not the cases in which this Court may exercise its inherent jurisdiction under Section 561-A, Cri. P. C. to quash the orders of admission dated 6-9-1960.

3. The above view cannot be said to be in disregard of the practice of this Court. In the Full Bench case of Shailabala Devi v. Emperor : AIR1933All678 , the revision was disposed, of on merits after rejecting the preliminary objection raised by the Government Advocate, even though no revision had been filed before the Sessions Judge. Suleman J. observed, after consideration of the case law, that in most of the cases the High Court did not consider the objection fatal after the application had been admitted and record called for, all the more, when the case had been pending for a long period, which in that case was not more than six months. Mukerji J. made observations for the guidance of the members of the Bar and the litigants in general and in that connection suggested that the special grounds for moving the High Court directly should be indicated in the petition or disclosed by the applicant or his counsel at the time of the admission of the revision.

King J. observed that it could be presumed that the Judge who admitted the application was aware of the rule of practice but decided that special grounds had been shown for making an exception to the general rule. Even though it was laid down that the well established practice of this Court and also of other High Courts was not to entertain a revision under Section 435, Cri. P. C. unless the, Sessions Judge had, first of all, been approached, yet it was made clear that that was a rule of practice and not the law. As far as the revisional jurisdiction was concerned, both the High Court and the Sessions Judge had concurrent jurisdiction and in exceptional cases the High Court could entertain, a revision application even though the subordinate court had mot first of all been, approached. Revision applications made direct to the High Court were thus entertained as there was no illegality and there was a mere departure from the rule of practice.

4. The present revision applications were admitted more than six months back and they were listed for hearing before Broome J. and were thereafter listed before me for consideration whether the orders of admission be vacated or not. This question has been thrashed out in detail and in fact was argued on two days. When this court had already devoted considerable time over these applications, it will be in fairness that we may devote some more time and dispose them of on merits instead of directing the parties to incur additional expenses by having to go before the Sessions Judge and then, to contest the proceeding before the High Court. I find no reason to depart from the view expressed in the Full Bench, case in : AIR1933All678 .

5. As the points raised Before me are of great importance all the more, when there is no decision of this Court directly on the point, it is but proper that I should indicate in this order whether the Sessions Judge has the jurisdiction to entertain a revision under Section 435, Cr. P. C. against an order of the Assistant' Session Judge passed in, the exercise of original or appellate jurisdiction.

6. Section 435, Cr. P. C. provides :

'The High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the State Government in this behalf may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court........'

The Criminal Appeals disposed of by the Assistant Sessions Judge under orders which are subject of revision in the present proceedings were against orders passed by a Magistrate Second Class. All the Criminal Appeals were presented in the Court of Session and the Sessions Judge had transferred them to the Assistant Sessions Judge for disposal. In other words, when the Assistant Sessions Judge allowed the appeals and discharged the opposite parties, he was exercising an appellate jurisdiction. The points for consideration are whether the Assistant Sessions Judge was in the eye of law functioning as a distinct Criminal Court, secondly, can it be deemed to be an inferior Criminal Court and thirdly whether the appeals were a proceeding before an inferior Criminal Court?

7. The term 'Court' or 'Criminal Court' has not been defined in the Cri. P. C, but Section 6 thereof enumerates the various Criminal Courts. Besides the High Courts and the Courts constituted under any law other than the code of Criminal Procedure there are five classes of Criminal Courts, namely,

I. Courts of Sessions:

II. Presidency Magistrates:

III. Magistrates of the first class;

IV. Magistrates of the second class; and

V. Magistrates of the third class. The court of the Assistant Sessions Judge, could, without any controversy, be placed in the first category if there was no provision in Section 9 of the Code for the establishment of 'a Court of Session' for every Sessions division. The words 'a Court of Session' will make it clear that there can be only one Court of Session for every sessions division. Consequently, there is in the eye of law only one court of Sessions for every sessions division, though such Court may be presided over by the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge.

The formation of the Court of Sessions is similar to the High Court with the difference that the High Court is constituted of Judges exercising similar judicial powers, though under, the Rules of the Court certain, work can be laid before a Single Judge and others before a Division Bench or a Full Bench. In the case of Court of Sessions however, the Sessions Judge and Additional Sessions Judges exercise similar Judicial powers, but the powers of Assistant Sessions Judges are less. Assistant Sessions Judge cannot award the sentence of death, imprisonment for life or a sentence exceeding 10 years. They cannot hear Cri. Revisions and also Criminal Appeals against the judgments of Assistant Sessions Judges and Magistrates First Class.

8. It was, contended that when there was Only one Court of Session the Assistant Sessions Judge was as much a part of the Court as the Sessions Judge and consequently the court presided over by the Assistant Sessions Judge could not be deemed to be a Court by itself, his Court and the Court of the Sessions Judge being the same. It was thus suggested that when the Court of the Sessions. Judge and that of the Assistant Sessions Judge was the same, the Sessions Judge could not in any way revise or make a recommendation, for the revision of an order passed by one of the presiding officers of his Court. This contention can succeed only if for all purposes the Court is one and it is not possible to sub-divide it into many courts for any purpose.

In Deoki Nandan v. State of U. P. : AIR1959All10 , the view expressed was as has been, suggested by the learned counsel for the applicant, namely, that the High Court is constituted as one Court and within the meaning of Clause (1) of Article 133 of the Constitution of India, the Single Judge could not be deemed to be a Court immediately below the Bench constituted for hearing Special Appeals. A contrary opinion has been expressed by the Bombay and Calcutta High Courts in Krishnaji Vithal v. Emperor, AIR 1949 Bom 29 and Parbati Devi v. The State : AIR1952Cal835 but they were the cases where the exercise of revisional jurisdiction by the High Court in cases decided by the same court in the exercise of its original Criminal jurisdiction was in issue. On consideration of the provisions of the Code of Criminal Procedure it was held by the Bombay High Court that a revision under Section 435, Cri. P. C. was maintainable before a Bench of the High Court, where a Single Judge in the exercise of its original Criminal Jurisdiction passed a non-appealable sentence. In the Calcutta case the convicted person had preferred an appeal and it was under consideration whether the Court could exercise revisional jurisdiction under Section 439, Cri. P. C.

9. The decision in : AIR1959All10 cannot, in view of the Supreme Court decision in Narain Das v. State of Utter Pradesh : 1961CriLJ317 , be said to enunciate the law correctly, in any case as applicable to proceedings under the Code of Criminal Procedure. In this case their Lordships considered the scope of Sections 195, 476 and 476-3 of the Cri. P. C., to lay down whether an order of a Single. Judge of the High Court under Section 476, Cri. P. C. was appealable before the High Court itself under Clause 10 of the Letters Patent or before the Supreme Court. On consideration of the wording of Section 195, Cri. P. C. it was held that the Bench of the High Court consisting of a Single Judge was a Court subordinate to the Bench of the same Court competent to entertain appeals against the appellate decrees or sentences of such Court. The; order under Section 476, Cr. P .C was passed in a Civil Writ petition under Article 226 of the Constitution and a final order passed in the Writ petition was appealable under Clause 10 of the Letters Patent. The decree parsed in the Writ petition, was appealable before the High Court. It was thus held that within the meaning of Section 195 (3) Cri. P. C. the Bench of the High Court consisting of a Single Judge was subordinate, to a Bench of the High Court to which an appeal lay from the appellate decree of the Single Judge. It is now a settled Jaw that even though the Court is one and all the Judges individually have the same power, for certain purposes they shall be deemed to be more than one Court. There would be the Court of a Single Judge and the Court of a Bench of two Judges or more. When for certain purposes the High Court can be deemed to consist of more than one Court, even though in fact the High Court is one and is constituted of Judges having the same powers, there is no reason why a similar view be not adopted with regard to a Court of Session constituted under Section 9 of the Cri. P. C.

10. In the case of a Court of Session, all the Judges do not have the same power. The powers of Assistant Sessions Judges are less. Under Section 408, Cri. P. C. a person, convicted on a trial held by an Assistant Sessions Judge can appeal to the Court of Session. Consequently, Section 408 Cri. P. C. by itself provides that there is a Court presided over by an, Assistant Sessions Judge which for purposes of appeal is distinct from the Court of the Sessions Judge to whom the order passed by the former is appealable. Under the proviso to the section the appeal shall lie to the High Court if the sentence of imprisonment awarded exceeds four years. This will also suggest that the Court of Session is for certain purposes divisible into many Courts, one presided over by the Sessions Judge or Additional Sessions Judge and another by Assistant Sessions Judge. When, a Court of Session constituted for the sessions division can be sub-divided we can easily hold that for purposes of Section 435, Cri. P. C. the Court of the Assistant Sessions Judge is distinct from the Court of the Sessions Judge. To make this point more clear it may further be observed that the framers of the Cri. P. C. have made a differentiation between a Court of Session and the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. Wherever a provision is made for the commitment of a case or for filing an appeal or revision, it is laid down, that the commitment shall be made to or the appeal or revision shall be filed before the Court of Session; but wherever a provision is made for the hearing of the case by the Judges of the three categories, they have been referred to as the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. In other words, therefore, though, legally speaking, there is only one Court of Session, there are, for purposes of administration of justice, as many Courts as there are Sessions Judges in the district One Court shall be presided over by the Sessions Judge, others by Additional Sessions Judges and the rest by Assistant Sessions Judges. Thus, for purposes of Section 435, Cri. P. C. the Court of an Assistant Sessions Judge shall be distinct from that of the Sessions Judge.

11. When an appeal is transferred to an Assistant Sessions Judge, it shall from that stage be a proceeding pending in the Court of the Assistant Sessions Judge, irrespective of any order which the Sessions Judge may have himself passed at an earlier stage. At whatever stage the appeal is transferred to an Assistant Sessions Judge, the further hearing of the appeal by the Assistant Sessions Judge shall amount to a proceeding pending in his Court.

12. The last point for consideration is whether the Court of an Assistant Sessions Judge exercising appellate jurisdiction in appeals presented before the Court of Session and later transferred to the Assistant Sessions Judge can be regarded as an inferior Criminal Court.

13. Section 435 of the present Code corresponds with Section 295 of the Code of 1872 and in that section the words used were 'any Court subordinate to such Court or Magistrate'. These words were replaced in Section 435, Criminal Procedure Code by 'an inferior Criminal Court' It must, therefore, be presumed that the legislature altered the law for some well-defined purpose; in other words, the scope of Section 435, Criminal Procedure Code cannot be restricted to orders passed by Courts subordinate to the Court exercising revisional Jurisdiction,

14. The meaning of the word 'inferior' in its application to the Courts of Magistrates (but not of the Court of Assistant Sessions Judge) was considered by our High Court in Queen Empress v. Laskari, ILR 7 All 853 (FB). Calcutta and Bombay High Courts have also adopted the same view. In ILR 7 All 853 (FB), it was observed that the word 'inferior' had been used in the new Code to meet the rulings to the effect that the District Magistrate was not subordinate to the Sessions Judge and it was held that because the Magistrate First Class was subordinate to the District Magistrate, the latter was competent to call for the record of the former and to deal with it under Section 435, Criminal Procedure Code. The Court of a subordinate Magistrate was thus held to be an inferior Criminal Court.

In Nobin Kristo Mookerjee, v. RusSick Lall Laba, ILR 10 Cal 268 the words 'inferior Criminal Court'' in Section 435 Criminal Procedure Code were construed to mean inferior regarding the particular matter in respect to which the superior Court wag asked to exercise its revisional jurisdiction; but this decision was over-ruled in the Full Bench reference Opendro Nath Chose v. Dukhini Bewa, ILR 12 Cal 473 (FB), where ordinary meaning was assigned to the word 'inferior', and it was held that there could be no controversy with regard to subordinate Courts or authority and that all subordinates were inferior to the authority to which they were subordinate. It was at the same time observed that an inferior Court or authority was not necessarily subordinate to the superior Court or authority. Similar observations were made in Queen Empress v. Pirya Gopal, ILR 9 Bom 100. In other words, subordination implies inferiority and for purposes of Section 435, Criminal Procedure Code a subordinate Court or authority can be classed as an inferior Criminal Court.

(14a) It is, however, urged that this rule cannot apply to Assistant Sessions Judges, as in the eye of law there is one Court of Session though presided over by many Sessions Judges including Assistant Sessions Judges, and, on the other hand, there are as many Courts of Magistrates as there are Magistrates posted in the district. The suggestion made is that the provisions of Section 435, Criminal Procedure Code should be interpreted differently while considering the case of Assistant Sessions Judges. Such a view if adopted, shall be contrary to the principles governing interpretation, of statutes, as we shall be compelled to give two conflicting meanings to the same provisions of the statute.

The legislature and not the Courts of law has the power to make a reasonable classification, that is, to apply the law to one set of persons and not to others, or to lay down one law for one set and a different one for the other. Where the legislature makes one law to be applicable to all, the Courts cannot interpret the same enactment in two different manners, one meaning to be assigned when considering the case of Magistrates and a different one to the case of the Assistant Sessions Judges.

15. A subordinate Court or authority occupies an inferior status and consequently an important rule for determination whether a particular Court can be classed as an inferior Criminal Court, is whether that Court is subordinate to the Court or authority which can exercise the revisional jurisdiction under Section 435, Criminal Procedure Code. Section 17 (3) Criminal Procedure Code clearly lays down that all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction and, therefore, the Court of an Assistant Sessions Judge is an inferior Criminal Court as far as the Court of Sessions or the Sessions Judge is concerned.

16. Another rule which can at occasions be applied in determining whether a Criminal Court is inferior to the Sessions Judge, is to whom appeals ordinarily lie against the judgment or order of the former Court. Superior Court is one which exercise higher powers and can sit in judgment over the decisions of the inferior Court. The legislature itself made a provision in Section 435, Criminal Procedure Code by laying down that for purposes of this section the Courts of Magistrates shall be inferior to the Sessions Judge, that is, the Sessions Judge can exercise revisional jurisdiction when orders of Magistrate are challenged. The same rule can also be applied to Assistant Sessions Judge. Under Section 408 Criminal Procedure Code an appeal against the judgment of an Assistant Sessions Judge lies to the Court of Ssssion unless, of course, the sentence awarded exceeds four years. Appeals against the judgments of Assistant Sessions Judges can be heard by the Sessions Judge or by the Additional Sessions Judges. The ordinary rule laid down in Section 508 Criminal Procedure Code therefore, is that appeals against the decisions of the Assistant Sessions Judges shall lie to the Sessions Judge, though in exceptional circumstances the appeals shall lie to the High Court. Consequently, for all practical purposes, the Court of an Assistant Sessions Judge is an inferior Criminal Court with reference to the Sessions Judge.

17. The learned counsel for the applicants has, however, urged that the above rules can be applied to only those Courts which do not exercise a concurrent jurisdiction over the Subject-matter in dispute, that is, the matters sought to be revised by the higher Court in exercise of the revisional jurisdiction under Section 435, Criminal Procedure Code. The suggestion thus made is that inferiority or superiority of the Court should depend upon the subject-matter of the decision of the Court and not by its exercising less powers or being Subordinate to another Court; in other words the Court is not inferior when both the Court's exercise concurrent jurisdiction in that matter. Such was the view: expressed in ILR 10 Cal 268 but this decision has been overruled by a Full Bench of the same High Court. Further, the adoption of such a view will lead to an anomalous situation, namely, that we shall be applying different rule to Assistant Sessions Judges: a rule which cannot be applicable to Magistrates; Magistrate First Class and District Magistrates have the same original jurisdiction in other words, a case which is being tried or has been tried by a Magistrate First Class could also be tried by the District Magistrate and appeals against the decisions of both would lie to the Court of Sessions. If the inferiority of the Court depended upon the subject-matter of the criminal proceedings, the Court of a Magistrate First Class shall be deemed to be subordinate or inferior to that of the District Magistrate in so far as the original trials are concerned and a revision against an order of a Magistrate First Class cannot lie before the District Magistrate. The legislature did not have such an intention when it enacted Section 435 Criminal Procedure Code. The above rule cannot, therefore, be applied to Magistrates. For this reason, it will not be proper to make this rule applicable to the Court of Assistant Sessions Judges.

18. To sum up, a Criminal Court 'A' is, for purposes of Section 35 Criminal Procedure Code, inferior to another Criminal Court 'B', if 'A' is subordinate to 'B' or appeals against the decisions of 'A' lie to the Court 'B'. Farther, even though under Section 9 Criminal Procedure Code there is only one Court of Session for every sessions division, there are, for purposes of administration of justice, as many Courts as there are Sessions Judges including Additional Sessions Judges and Assistant Sessions Judges, and the Court of an Assistant Sessions Judge shall be regarded as distinct from the Court of the Session Judge or Additional Sessions Judge. An Assistant Sessions Judge is subordinate to the Sessions Judge (vide Section 17 (3) Criminal Procedure Code) and consequently, for the exercise of revisional jurisdiction the Court of an Assistant Sessions Judge is an inferior Criminal Court and the Sessions Judge can entertain revisions against the orders of the Assistant Sessions Judge even though passed in the exercise of appellate jurisdiction. It is the long standing practice of this Court and also of other High Courts not to entertain a revision application directly. The aggrieved party has, first of all to approach the Sessions Judge who shall either make a reference to the High Court or dismiss the revision. If the party does not feel satisfied with the order of the Sessions Judge, he can then invoke the revisional jurisdiction of the High Court. But where the High Court entertains a revision directly without the party Having approached the Sessions Judge, there would be no illegality, but a mere departure from the above practice. Further, where the party was not guilty of concealment of material facts, it will not be desirable to set aside the order of admission of the revision, even though the Judge may not have admitted the revision if it was brought to his notice that the party had not approached the Sessions Judge. In any case where the revision has remained pending before the High Court for many months, it will not be desirable to vacate the order of admission already passed.

19. It was on account of the incomplete report submitted by the office that it did not come to the notice of the Application Judge that the party had not approached the Sessions Judge before moving the High Court in revision. It is, therefore, necessary to lay down directions for the guidance of the office so that no revision may in future be admitted without the Judge being aware of all the relevant facts. The office should continue to submit a report on limitation and also whether the revision application has been moved by a party to the proceeding or by an outsider. In addition, the office should report whether the applicant had approached the Sessions' Judge and on which date did the Sessions Judge dismiss the revision application. If the Reader finds that the report is incomplete, he shall ascertain facts from the applicant or his Advocate presenting the application and bring full facts to the notice of the Application Judge. It will be desirable that the members of the Bar should make a note in the application in clear words whether the Sessions judge has been approached, and if not, why the High Court is being approached directly.

20. The revisions should now be listed before the Bench concerned for final hearing.


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