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Chandra Bahadur Tamang Vs. Sundermaya Tamang - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1983CriLJ323
AppellantChandra Bahadur Tamang
RespondentSundermaya Tamang
Cases ReferredUnion of India v. Sukumar Pyne
Excerpt:
- - the law of limitation in force in sikkim, like the indian limitation act, 1908 (now repealed and replaced by the limitation act of 1063), does not prescribe any period of limitation for any revisional application, civil or criminal. served with a summons and it would appear from the impugned order that the learned sessions judge was satisfied that the petitioner failed and neglected to appear in spite of such service. the certificate is dated 16-9-1981 containing a bald statement that the petitioner was suffering from diabetes and 'was taking treatment from this phc since 3-11-1980 to 15-4-1981' and 'that he bad been advised to take test for 3 months more'.there is nothing on record to show the nature and gravity of the illness and whether the same was such as to prevent the.....a.m. bhattacharjee, j.1. this is a revisional application by the petitioner against the order passed against him by the learned sessions judge directing him to make monthly allowances for the maintenance of his wife, the respondent no, 1, and his son, the respondent no. 2, on an application filed by them under section 488 of the code of criminal procedure, 1898, that being the code which is still applicable in sikkim subject to some exceptions and modifications.2. the impugned order having been passed on 25-2-81 and the present revisional application having been filed on 8-9-81, the first question that arises for consideration is whether the present revision is barred by time. the law of limitation in force in sikkim, like the indian limitation act, 1908 (now repealed and replaced by the.....
Judgment:

A.M. Bhattacharjee, J.

1. This is a revisional application by the petitioner against the order passed against him by the learned Sessions Judge directing him to make monthly allowances for the maintenance of his wife, the respondent No, 1, and his son, the respondent No. 2, on an application filed by them under Section 488 of the Code of Criminal Procedure, 1898, that being the Code which is still applicable in Sikkim subject to some exceptions and modifications.

2. The impugned order having been passed on 25-2-81 and the present revisional application having been filed on 8-9-81, the first question that arises for consideration is whether the present revision is barred by time. The Law of Limitation in force in Sikkim, like the Indian Limitation Act, 1908 (now repealed and replaced by the Limitation Act of 1063), does not prescribe any period of limitation for any revisional application, civil or criminal. But in Kinzang Dahdul V. Ransul Kharga 1978 Cri LJ 1569 at pp. 1572-1573 it has been observed by this Court as hereunder:

By a Notification No. 3112-80/AC, dated 6th May, 1950 the period of limitation for filing Appeals, Reviews and Second Reviews has been fixed as two months from the date of delivery of the judgment. In Sikkim there is no period of limitation fixed for filing Criminal Revisional Application as was the position in the other States in India under the Limitation Act of 1908 which has now been repealed and replaced by the Limitation Act of 1963. It may be noted that neither the Act of 1908 nor the Act of 1963 is extended to or adopted in Sikkim. By the Limitation Act of 1963, under Article 131 thereof, a period of ninety days has now been fixed for application to any Court for the exercise of its powers of revision under the Codes of Civil and Criminal Procedure; but, as already noted, no such period was fixed under the Limitation Act, 1908. But even then it became usual practices of several High Courts not to entertain Criminal Revisional Application made after the period fixed for filing appeals including the time taken for obtaining the copy of judgment and also the time, if any, occupied in prosecuting with due diligence any application to the Court of Session for a reference to the High Court and obtaining such decision.

So far as this High Court is concerned there is, as yet, no rule of practice that Criminal Revisions, which are filed after the expiry of the period allowed for appeals, are to be rejected simply on the ground of delay. The admission or non-admission of applications for revision is entirely discretionary and we do not think that it is necessary for us to prescribe any hard and fast rule for the purpose. We may, however, observe that where the law prescribes a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show bis diligence during the period so allowed or prescribed. But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action with all due diligence and reasonable promptitude. It is, therefore, trite to say that a revisional application is to be filed within a reasonable period and ordinarily the period allowed for Sling appeals may be regarded as the standard for reasonable time within which application for revision should ordinarily be filed. In our opinion, when an application for revision has been made after the expiry of the period allowed for an appeal, the Court should ask the applicant to give reasons for and to explain the delay and not to entertain the revisional application if the reasons and explanation are not found to be satisfactory or sufficient.

3. This decision in Kinzang Dahdul (supra) has been consistently followed by this Court in O. P. Singh v. State 1978 Cri LJ 1650, in Jasman Rai v. Sonamaya Rai 1980 Cri LJ 500 and in other cases. The period prescribed for all appeals to the High Court under the Law of Limitation in force in Sikkim being 60 days, if such period is reckoned from the date of the impugned order, the application must be regarded to have been filed long after the period within which it was to be filed according to the ratio of the aforesaid decisions.

4. Mr. A. Moulik, the learned Advocate for the petitioner, has, however, urged that the impugned order was passed ex parte and the petitioner could come to know about it only on 31-8-1981, when he came to Court on receipt of the summons in the case wherein the impugned order was put into execution and, therefore, Mr. Moulik has submitted that the period of limitation should be counted from the date of such knowledge and that, so counted, the present petition is very much within time.

5. A criminal conviction can never be ex parte. But an order allowing maintenance under Section 488 of the Code of Criminal Procedure is not an order of conviction and, as pointed out by the Supreme Court in Nand Lal v. Kanhaiyalal : 1960CriLJ1246 and in Jagir Kaur v. Jaswant Singh : [1964]2SCR73 , the proceedings under Section 488 of the Code of Criminal Procedure are in the nature of civil proceedings, though regulated by the provisions of the Code of Criminal Procedure and that is why the Proviso to Section 488 (6) provides for ex parte determination if the opposite party wilfully avoids service or neglects to attend the Court in spite of service. In a civil proceeding, the period of limitation to assail a decree or order passed ex parte is to be counted from the date of the making thereof and not from the date of its knowledge, unless the party concerned was not duly served with summons or notice. For example, under Article 123 of the Limitation Act, 1963, the period of limitation for an application to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte is to be counted from the date of the decree, but if the summons or notice was not duly served. such period will have to be counted from the date when the applicant has knowledge of the decree or the order. Similarly, the period of limitation to challenge a judgment in a civil suit is to commence from the date of the judgment, but when a judgment is pronounced at a future dale without notice to the parties as required under Order XX, Rule 1 of the Code of Civil Procedure, the period shall be counted from the date of the knowledge of the judgment.

6. In the case at hand, the petitioner was; served with a summons and it would appear from the impugned order that the learned Sessions Judge was satisfied that the petitioner failed and neglected to appear in spite of such service. A Full Bench of the Punjab and Haryana High Court in Joginder Singh v. Bal Karan Kaur 1972 Cri LJ 93 also referred to the provisions of Article 123 of the Limitation Act in construing the relevant provisions of the proviso to Section 488 (6) of the Code of Criminal Procedure and held that if the husband did not appear in spite of the service, limitation would run from the date of the order, but if he was not served with notice, limitation would run from the date of his knowledge of the order and not from the date of the making thereof. To the same effect is the observation of Baharul Islam, J. (as his Lordship then was) in Sunil Kumar v. Pratima 1973 Cri LJ 401 (Gau) wherein it was held that if the husband did not appear in spite of service, his conduct would amount to wilful negligence to attend the Court and in such case limitation would run from the date of the making of the order. The petitioner in this case having been served with summons, the period of limitation has got to be counted from the date of the impugned order and not from the date when the petitioner came to know about it.

7. The petitioner has, however, filed an application for the condonation of delay made in presenting this revisional application, the delay being, as already noted, for a period of more than four months. As observed by the Supreme Court in Ramlal v. Rewa Coalfields : [1962]2SCR762 , two important considerations have to be borne in mind in condoning delay in such cases, one being that expiration of the period of the limitation gives rise to a right in favour of the party, in whose favour an order has been passed, to treat the order as binding and beyond challenge, and such a right is not to be lightly disturbed, while the other consideration is that if sufficient cause for condoning the delay is shown, the Court may in its discretion condone such delay to advance substantial justice, but that in such a case delay made after the prescribed period has got to be explained from day to day.

8. The explanation put forward by the petitioner in his application for condonation of delay is that though he received summons requiring him to appear on 5-12-1980, he could not do so as he was suffering from Diabetes at the relevant time and he has filed a certificate purported to be issued by a Medical Officer-in-charge of a Primary Health Centre at Jorethang. The Medical Officer has not sworn any affidavit. The certificate is dated 16-9-1981 containing a bald statement that the petitioner was suffering from Diabetes and 'was taking treatment from this PHC since 3-11-1980 to 15-4-1981' and 'that he bad been advised to take test for 3 months more'. There is nothing on record to show the nature and gravity of the illness and whether the same was such as to prevent the petitioner from coming to the Court and from enquiring about and attending to the case. Therefore, even assuming the certificate to be true, the petitioner cannot be regarded to have made out any satisfactory case for condonation of delay of more than 4 months, and has obviously failed to explain the delay from day to day.

9. This is sufficient to dispose of the case. But Mr. Moulik for the petitioner has raised another contention of considerable importance and we have decided to consider the same for the reasons noted hereinbelow. Mr. Moulik has contended that under the express terms of Section 488 (1), Code of Criminal Procedure, an order of maintenance thereunder can be passed only by 'the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class' and by no other Court, and therefore, the present order by the learned Sessions Judge was beyond jurisdiction. In another case being Criminal Revisions No. 6 of 1981 (Balbahadur v. Ranmaya), a similar contention has been made and the same is also pending our decision. We have also been told that many other applications under Section 488 of the Code of Criminal Procedure are pending before the Court of Session at Gangtok and that our decision on this point, even though not strictly necessary for the disposal of the case at hand, will cover all such cases and would settle the matter. We accordingly issued notice to the learned Advocate-Genbral in view of the importance of the question involved and also to Mr. U. P. Sharma and to Mr. B. C. Sharma, the learned Advocates for the parties in the aforesaid Criminal Revision No. 6 of 1981 and all of them appeared before us and made their submissions. I would, therefore, proceed to consider the question.

10. If the question related to the trial of an offence under the Indian Penal Code, it would not have detained us for a moment, because under Section 28 of the Code of Criminal Procedure, 1898, every offence under the Penal Code is triable by a Court of Session also in addition to the Court or Courts by which the same is shown to be triable in the Eighth Column of the Second Schedule. As has been pointed out by Chief Justice Sir John Edge in Queen-Empress v. Kharga, 1886 ILR 8 All 665 at p. 667, under the corresponding provisions of the Code of Criminal Procedure, 1882, 'the provision as to the other Courts does not cut down or limit the jurisdiction of the High Court or the Court of Session'. The Court of Session, as pointed out in In re Veeranna (AIR 1942 Mad 440) : (43 Cri LJ 715), can try any case under the Penal Code. The position is, however, slightly different in respect of offences under other laws and Section 29 of the Code provides that an offence under any other law shall be tried by such Court as is mentioned in any such law and when no Court is so mentioned, it may be tried by the High Court or by any other Court constituted under the Code by which it is shown to be so triable in the Eighth Column of the Second Schedule. In the case of such offences, therefore, a Court of Session does not have any automatic or independent jurisdiction, unless the relevant law or the Second Schedule of the Code shows any such offence to be triable by that Court. In the case of offences under other tow, if the Court of Session is not specifically mentioned as the Court to try such offence under any such other law or in the Second Schedule of the Code, a trial by the Sessions Judge would be without jurisdiction, as pointed out by Chief Justice Sir John Edge and Mr. Justice Blair in Queen-Empress v. Schade (1897) ILR 19 All 465.

11. In civil jurisdiction also such a question would present no difficulty. Under the Civil Courts Acts operating in the different States, the Court of the District Judge has the inherent jurisdiction to entertain all civil suits in the District and, therefore, though under Section 15 of the Code of Civil Procedure 1908, every suit is required to be instituted in the Court of the lowest grade competent to try it, trial by a, District Judge of a suit, which according to Section 15 is to be tried by a Court of a lower grade, would not be without jurisdiction. Section 15 of the Code of Civil Procedure, as held In the century-old leading Full Bench decision of the Allahabad High Court in Nidhi Lal v. Mazhar Husain (1884) ILR 7 All 230, under the corresponding provision of the preceding Code, is 'a rule of procedure only and not of jurisdiction' and the unlimited and inherent jurisdiction of the District Court to entertain all suits cognizable by the Civil Court is not affected thereby. As already noted, same is the position with offences under the Indian Penal Code and trial by a Court of Session of an offence triable by the Magistrate would be perfectly valid as under Section 28 of the Code of Criminal Procedure, a Court of Session has jurisdiction to try all such offences. But in respect of offences under other laws, a Court of Session has no such inherent jurisdiction and it can try such cases only if such other law or the Second Schedule of the Code shows such offences as triable by a Court of Session.

12. I must frankly confess that during the course of arguments and during the course of preparing this judgment I have seriously considered the question as to whether a case triable by a particular Court can or cannot be tried by a Court to which the former is subordinate and also the more precise question as to whether a trial by a Court of Session, which is superior to and has appellate and revisional jurisdiction over the Courts of the Magistrate of the First Class, of a case triable by a Magistrate of the First Class would stand vitiated for want of jurisdiction? It is true that if a special law specifies only the Court of Magistrate as the Court competent to try an offence, then the Court of Session, because of Section 29 of the Code, does not appear to have jurisdiction to try such offence. But appeals from convictions by such Magistrates would nevertheless lie to the Court of Session and if the Court of Session, in appeal, can go into every aspect of the case and may affirm, annul, or reverse or otherwise modify such convictions, it may be difficult to understand as to why the trial of such a case by the Court of Session would stand vitiated. In service matters, it is settled law that dismissal, removal, suspension or any other matter which can legally be done by any authority, can also be legally done by a higher or superior authority (see P. L. Dhingra's case : (1958)ILLJ544SC . But, the decision of the Supreme Court in the State of Uttar Pradesh v. Sabir Ali : 1964CriLJ606 is generally taken, to have sealed the point where it has been held (at p. 1675) (of AIR); (At pp. 608-609 of Cri LJ) that since the Uttar Pradesh Private Forests Act, 1948 mentions only the Courts of Magistrates of the Second Class and of the Third Class as the Courts which could try offence under Section 15 of the Act, the Magistrates of the First Class could not try such offence 'even though the powers of those Courts may be superior to those of Magistrates of the Second and Third Class' and the trial of such offences by a Magistrate of the First Class was held to be without jurisdiction and void. It may, however, be noted that the Court of Magistrates of the First Class, which tried the offence in the case last cited, though higher in grade, had no appellate or revisional jurisdiction over the Courts of Magistrates of the Second and the Third Class, by which the offence was to be tried under the law. But in the case before us, the Court of Session, which has tried the case, has both appellate and revisional jurisdiction over the Magistrates by whom the case was to be tried according to the express terms of Section 488 (1). It may also be noted that Section 530 (p) of the Code of Criminal Procedure only refers to Magistrates and provides that 'if any Magistrate, not having been empowered by law in this behalf, ...tries an offender his proceedings shall be void', but there is no such express provision in the Code providing that trial by the Court of Session under similar circumstances shall also be void.

13. It is true that, as pointed out by this Court in Ram Prasad v. State (1981 Cri LJ 1384 at p. 1389), apart from the irregularities expressly dealt with and specified in Sections 529, 530 and other succeeding Sections of Chapter XLV of the Code, captioned as 'Of Irregular Proceedings', there is a category of irregularities which relate to infraction of those provisions of the Code which give the Courts the jurisdiction to entertain certain proceedings and regulate their competence and infraction of those provisions would vitiate the entire proceeding. The Supreme Court has pointed out in H. N. Rishbud v. State of Delhi : 1955CriLJ526 and in W. Slaney v. State of Madhya Pradesh : 1956CriLJ291 that 'lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing and the proceedings taken in disregard or disobedience would be illegal'. The combined reading of Section 28 and Section 29 of the Code of Criminal Procedure shows that, except in respect of offences under the Indian Penal Code, the Court of Session has not, ex facie, been given any jurisdiction to try any offence under any other law unless such other law or the Second Schedule of the Code of Criminal Procedure shows such offence to be triable by it. Though in the Supreme Court decision in the State of Uttar Pradesh v. Sabir Ali : 1964CriLJ606 (supra), the question as to whether an offence triable by a Court of lower grade can also be tried by a Court having appellate and revisional jurisdiction overrule former was not considered, yet from the trend of the ratio of that decision, I would, for the purpose of this case, hold, in agreement with the view of the Allahabad High Court in Queen-Empress v. Schade (ILR 19 All 465) (supra) that such a trial is not permissible. And in that view of the matter, it would have to be held that a trial of a case under Section 488, Code of Criminal Procedure, which has been expressly made triable by a Magistrate of the First Class, and some other Magistrates, cannot be tried by a Court of Session, under the Code of Criminal Procedure, 1898.

14. In Sikkim, however, the position is somewhat different As I have already pointed out at the outset, the Code of Criminal Procedure of 1898 is still in force in Sikkim as the law relating to Criminal Procedure, but subject to some exceptions and modifications and some such exceptions and modifications have been made by and are contained in the Order promulgated by the then Maharaja of Sikkim, being Notification No. 73/H, dated 30th August, 1963, which is reproduced hereinbelow:

His Highness the Maharaja of Sikkim has been pleased to order as follows:

1. In modification of Notification No. S/214/54 dated the 8th September, 1954, the Chief Magistrate shall have the power to entertain and dispose of all appeals from the decisions of the Courts of all Magistrates in Sikkim in regard to both Civil and Criminal cases.

2. In all cases where the Cr. P.C. lays down the commitment 'proceeding, the Chief Magistrate's Court shall have the original jurisdiction and all such cases shall, there-fore, be filed before him directly for disposal

3. That all such offences in the Indian Penal Code which are triable by a Court of Session or Magistrate of the First Class only shall be filed before the Chief Magistrate's Court for trial and disposal. Other cases which are triable by any Magistrate shall be disposed of by appropriate Magistrate's Court exercising requisite magisterial powers. District Officers shall entertain all criminal complaints or charge-sheets from the Police and shall try those cases either by themselves or effect transfer of such cases to the other Courts subordinate to them for trial and disposal.

Sd/- D. Dahdul,

Chief Secretary,

Government of Sikkim.

15. The First Paragraph of the Order invests the Chief Magistrate with the appellate jurisdiction over all Courts of Magistrates both in regard to civil and criminal matters. The Second Paragraph does away with commitment proceeding under Chapter XVIII of the Code of Criminal Procedure and empowers the Chief Magistrate to entertain directly, as a Court of original jurisdiction, all cases triable by the Court of Session and, thus virtually repeals Section 193 of the Code whereunder 'no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered.

16. The Third Paragraph, which is very material for our purpose, provides, firstly, 'that all such offences in the Indian Penal Code which are triable by the Court of Session or Magistrate of the First Class only shall be filed before the Chief Magistrate's Court for trial and disposal' and, secondly, it provides that 'other cases which are triable by any Magistrate, shall be disposed of by appropriate Magistrate's Court exercising requisite magisterial powers'. The expression in the first sentence of the Third Paragraph is 'offences...which are triable by a Court of Session or Magistrate of the First Class only' and the expression in second sentence of the Third Paragraph is 'other cases which are triable by any Magistrate'. But, read together, the latter expression 'other casts' in the second sentence has been taken to mean and including all cases triable by any Magistrate and not necessarily trial of offences only. In other words, it has been taken to mean that if a criminal case, whether relating to offence or other matter, is one which can be tried by 'any Magistrate', it can be tried and disposed of by the Magistrates. But if it is a criminal case which is triable, not by any Magistrate, but by a Magistrate of the First Class only, it cannot be tried by the Magistrates, but shall be tried by the Chief Magistrate only. To put it in other words, even though the relevant expression in the first sentence of the Third Paragraph is 'offence', the relevant provisions have been construed to mean and include all criminal cases or proceedings and if any such proceeding is required under the Code or any other law to be tried by a Magistrate of the First Class, the same is tried by the Chief Magistrate as an original proceeding. The reason behind this order of 1963 and the construction put thereon as stated above, was stated to be the lack of judicial experience of the Magistrates on whom First Class powers were or had to be conferred in Sikkim in those days and it was, therefore, thought necessary and advisable to have all cases triable by a Magistrate of the First Class to be tried by the Chief Magistrates, who were generally recruited from officers having experience and training of a Sessions Judge in India. The Court of the Chief Magistrate was the principal Court of original jurisdiction, both civil and criminal like the Court of the District and Sessions Judge in India and by Notification No. 61/SC dated 17th Nov., 1973, the same was redesignated as the Court of the Judge, Central Court and after Sikkim was incorporated in the Union of India as a component State with effect from 26th April, 1975, this principal Court of Civil and Criminal jurisdiction has been designated as the Court of the District Judge on the Civil, side and the Court of Session on the Criminal side and as a result all cases which were to be tried by the Court of the Chief Magistrate, including all cases triable by Magistrate of the First Class, have continued to be tried by the Court of Session in Sikkim All the learned Counsel appearing before us, namely, the learned Advocate-General appearing for the State, Mr. Moulik and Mr. Sharma, the learned Advocates appearing for the petitioners in the different cases and Mr. B. C. Sharma for the opposite parties, have stated that in pursuance of the Notification No. 73/H dated 30th August, 1963, all cases triable by the Magistrate of the First Class have all along been tried by the Court of the Chief Magistrate and now by the Court of Session, including all cases under Section 488 of the Code and that no other Court tries or have or had ever tried any such case. I must state that this is also borne out from the records of this Court also and all the proceedings under Section 488 of the Code, which have been challenged before this Court in revision, have been passed by the Court of the Chief Magistrate or the Court of Session.

17. It is true that on a literal reading, the first sentence of the Third Paragraph would cover only offences under the Indian Penal Code which are triable by the Court of Session or Magistrate of the First Class only and not cases which do not relate to offences under the Indian Penal Code. It is also true that the correctness of the construction of the relevant expression 'other cases' in the Second Schedule of the Third Paragraph to include all cases, whether relating to offences or not, under other laws, may be very much disputed. But if that is the construction put upon it by the Courts all along for about last two decades we must and cannot but give great weight to it. 'It is said that the best exposition of a statute or any other enactment is that which it has received from contemporary authority. Optima Est Legis Interpres Consuetude, Contemporanea expositio est optima etfortissima in lege. Where this has been given by enactment or judicial decision, it is of course to be accepted as conclusive. But, further, the meaning publicly given by contemporary of long professional usage is presumed to be true one even when the language has etymologically or popularly different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relations as well as with the sense then attached to the legislative expression. Moreover, the long acquiescence of the legislature in the interpretation put upon its enactment by notorious practice may, perhaps, be regarded as some sanction and approval of it'....Maxwell : Interpretation of Statutes 10th Edition pages 306-307,

18. Sir Asutosh Mukherjee observed in Baleshwar Bagarti v. Bhagirath Dass (1908 ILR 35 Cal 701 at p. 713), which was reiterated by his Lordship in Mathura Mohan v. Ram Kumar (AIR 1916 Cal 136 at p. 142), as hereunder:

It is a well-settled principle of construction that Courts in construing a Statute will give much weight to the interpretation put upon it at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.

19. These observations have been quoted with approval by the Supreme Court in a recent decision in Desh Bandhu Gupta v. Delhi Stock Exchange Association : [1979]3SCR373 and the Supreme Court has observed that though 'the same will not always be decisive of the question of construction', 'is nevertheless entitled to considerable weight and is highly persuasive'.

20. In National and Grindlays Bank v. Municipal Corporation of Greater Bombay : [1969]3SCR565 , the Supreme Court also adopted and applied this principle and observed (at p. 1052) that 'the Court may resort to contemporary construction that is, the construction which the authorities have put upon it by their usage and conduct for a long period of time' and expressly approved the principle enshrined in the maxim 'optima legis interpret est consuetude', which means that a continuous course of action or conduct is the best interpretation of law.

21. I would, therefore, hold that as a result of continuous course of entertaining and disposing of applications under Section 488 of the Code of Criminal Procedure by the Court of the Chief Magistrate and then by the Court of Session in Sikkim, the Third Paragraph of the relevant Notification No, 73/H, dated 30th August, 1963, has been taken and has come to mean that not only offences under the Indian Penal Code, but also all criminal cases triable by Magistrate of the First Class were to be tried by the Court of the Chief Magistrate and are now to be tried by the Court of Session. It is true that, as pointed out by the Supreme Court in Desh Bandhu Gupta v. Delhi Stock Exchange Association : [1979]3SCR373 (supra) a contemporary exposition, even though entitled to great weight and is highly persuasive, is not decisive and may be overturned by the Court if it appears to be clearly erroneous and productive of injustice and hardship. But as I have no reason to think that the construction so long put on the Notification No. 73/H, dated 30th Aug., 1963 has resulted in injustice or any hard-ship in any way, I would not overturn this course of action and would rather lend our imprimaturs thereto.

22. One word more before I conclude. If any of the Magistrates entertains a proceeding under Section 488, then any party aggrieved by any order passed therein can move the Court of Session in revision and, if dissatisfied by the order of the latter, may then move the High Court again in revision. But if the Court of Session directly entertains any such proceedings under the provisions of the aforesaid Notification No, 73/H, dated 30th August, 1963, then the party aggrieved obviously loses the right to move the Court of Session and can then only move the High Court. But, as pointed out in Nidhi Lal v. Mazbar Husain ((1884) ILR 7 All 230), if under the law the Court of the District Judge has jurisdiction to try a suit and has tried the same, the fact that the suit could or should have been tried in a Court of lower grade, from where an appeal would have lain to the District Court and that the trial by the District Court thus deprived a party of the right to appeal to that Court, would not affect the validity of the trial. But that apart, it should be noted that in a revision against the order by a Magistrate in a proceeding under Section 488 of the Code of Criminal Procedure, the only power the Court of Session could exercise was to report the same under Section 438 to the High Court for orders and the relief, if any, could be given by the High Court only in exercise of its revisional powers under Section 439, and that being so, it cannot be seriously contended that as a result of trial by a Court of Session, instead of by a Magistrate, of a proceeding under Section 488, the right of any party aggrieved is in any Way substantially affected, That apart, it is well-settled by a long catena of the decisions of the Supreme Court during these three decades (see, for example, Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ1480 Union of India v. Sukumar Pyne : 1966CriLJ946 ; In re Special Courts Bill (1978) AIR 1979 SC 478 at p. 517) that no person has any vested right to have any case tried by a particular forum or any particular procedure and that being so, if for the reasons stated hereinbefore, we approve the construction consistently put upon by the Courts in Sikkim on the Notification No, 73/H, dated 30th Aug., 1963 to the effect that a Court of Session alone has jurisdiction to try cases under Section 488, Code of Criminal Procedure, 1898, no one can be heard to say that as a result of such construction and the resultant trial, he has been deprived of any right to move a particular Court, which he could have moved but for such construction.

23. In the result, the revision fails and the application therefor stands dismissed.


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