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Ram Newaz and ors. Vs. Chabi Nandan Pandey and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ632
AppellantRam Newaz and ors.
RespondentChabi Nandan Pandey and anr.
Cases ReferredKochummini Chettiar Ramakrishnan Chettiar v. State of Kerala
Excerpt:
- - this revision is misconceived and must, therefore fail......section 5 of the indian limitation act was filed for condonation of delay. the learned sessions judge transferred that revision along with the application . under section 5 of the indian limitation act to the court of sri k. p. asthana, additional sessions judge, for disposal. sri k. p. asthana, vide order dated 19-11-1977, allowed the application under section 5 of the indian limitation act, condoned the delay and admitted the revision. it is against this order that the applicants have come up in revision to this court.2. the main ground on which the order under revision was assailed was that sri k. p. asthana, additional sessions judge, had no jurisdiction to pass the order which he passed as the revision which had been transferred to his court, was not a competent revision inasmuch.....
Judgment:
ORDER

V.N. Varma, J.

1. Through this revision the applicants have challenged the correctness of the order dated 19-11-1977 passed by Sri K. P. Asthana, Additional Sessions Judge, Allahabad in Criminal Revision No. 187 of 1977. This order was passed in the following circumstances :

It appears that there were two cross-cases between the parties. O.P. No. 1 (Chhabi Nandan Pande) was being prosecuted fox an offence Under Section 307, I. P. C, while the applicants were being prosecuted Under Sections 147, 323, 324. 504 and 506, IPC The case against O.P. No. 1 had been committed to the Court of Session and was, more or less, ripe for hearing. The case against the applicants Under Sections 147, 323, 324, 504 and 506, IPC was at its initial stage. O.P. No. 1, who was a complainant in this case, requested the Magistrate to commit this case also to the Court of Session so that the two cross-cases may be heard and disposed of together. The learned Magistrate rejected that application of O.P. No. 1. O.P. No. 1' went up in revision. In that revision, instead of making all the five applicants as opposite parties, he made only four o them as opposite parties, one was left out by mistake. That revision was filed in time and was admitted by the Sessions Judge.

After some time O.P. No. 1 realized that the revision filed by him was incompetent inasmuch as one of the applicants had been left out from the array of the opposite parties. He then filed another revision (Revision No. 187 of 1977), and made all the five applicants as opposite parties in that revision. That revision was, however, filed beyond time and, therefore, an application Under Section 5 of the Indian Limitation Act was filed for condonation of delay. The learned Sessions Judge transferred that revision along with the application . Under Section 5 of the Indian Limitation Act to the Court of Sri K. P. Asthana, Additional Sessions Judge, for disposal. Sri K. P. Asthana, vide order dated 19-11-1977, allowed the application Under Section 5 of the Indian Limitation Act, condoned the delay and admitted the revision. It is against this order that the applicants have come up in revision to this Court.

2. The main ground on which the order under revision was assailed was that Sri K. P. Asthana, Additional Sessions Judge, had no jurisdiction to pass the order which he passed as the revision which had been transferred to his Court, was not a competent revision inasmuch as it had not been admitted by the Sessions Judge, when the Sessions Judge transferred it to his Court. In other words, the contention of the learned Counsel is that a Sessions Judge could transfer a revision to the Court of an Additional Sessions Judge only when that revision was defectless and had already been admitted by him. In this connection he drew my attention to the provisions of Section 400 of the Cr.PC According to him, this section contemplates the transfer of only a properly admitted revision. And to buttress his argument in this regard, he invited my attention to the ruling reported in Kochummini Chettiar Ramakrishnan Chettiar v. State of Kerala 1977 Cri LJ 1872 (Ker).

In this case a person was convicted Under Section 337, IPC He went up in appeal against his conviction. That appeal was filed beyond time and, therefore, it- was accompanied by an application Under Section 5 of the Indian Limitation Act for condonation of delay. The same day on which the appeal was filed, the Sessions Judge transferred it to the Court of Assistant Sessions Judge. The application for condonation of delay was heard by the Assistant Sessions Judge and he dismissed it on merits. The appeal, therefore, also stood dismissed. The accused went up in revision to the High Court against the order dismissing his appeal. In the High Court the accused took shelter behind the provisions of Section 381(2), Cr.PC and contended that the appeal which had been transferred to the Court of Assistant Sessions Judge was not a properly filed appeal and as such it was not open to the Sessions Judge to transfer that appeal to the Court of Assistant Sessions Judge.

The High Court accepted this contention and held that the appeal which had been transferred to the Court of Assistant Sessions Judge was not a validly transferred appeal as the application Under Section 5 of the Indian Limitation Act had been pending when the appeal was transferred. Accordingly, the High Court allowed the revision. This case can have no application to the facts of the present case. Section 381 undoubtedly contemplates the transfer of a validly filed and entertained appeal. Section 400 under which the revision in question was transferred to the Court of Sri K. P. Asthana is quite differently worded. This section says that an Additional Sessions Judge shall exercise all the powers of a Sessions Judge 'in respect of' any case which may be transferred to, him. It does not say that an Additional Sessions Judge shall exercise all the powers of a Sessions Judge 'in' any case which may be transferred to him.

The expression 'in respect of' is of, wider connotation than the word 'in'. Section 400, therefore, includes within its scope not only references and revisions (covered by Chap. XXX), but all other incidental and ancillary matter also. The application Under Section 5 of the Indian Limitation Act filed along with the revision in question was undoubtedly an ancillary matter and it was, therefore, open to the Sessions Judge to transfer that application and the defective revision to the Court of Sri K. P. Asthana for disposal. If, therefore, Sri K. P. Asthana decided that application and admitted the revision, he cannot be said to have done anything wrong. He had full jurisdiction to, pass the order which he passed. This revision is misconceived and must, therefore fail. Accordingly I reject it.

3. Stay orders dated 13-12-1977 and 23-1-1978 are vacated.

4. The file of the case should now be sent down immediately to the Court below.


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