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State Vs. Anirudha Harijan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ886
AppellantState
RespondentAnirudha Harijan
Excerpt:
.....towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - section makes two points perfectly dear. when the sessions judge is present or is capable of effectively dealing with such urgent applications, he can neither authorize any other judge nor can such authority, even if conferred, be legally effective for the purpose of disposing of such urgent application. which fetters the power of the sessions judge to make such general provisions for..........had no ocoaeion to consider whether the additional sessions judge could, on behalf of the sessions judge, receive criminal appeals and also whether he could by virtue of an order of transfer, admit and later hear such appeals.8. on all the above considerations i am of the opinion that in the present case the authorisation made under sub-section (4) of section 17, criminal p.c. by the sessions judge in favour of the assistant sessions judge, bhawanipatna, enabling him to receive on behalf of the sessions judge and in his absence urgent applications along with appeal memos and to dispose of such urgent applications on the aforesaid authority, was in accordance with law; and the assistant sessions judge was legally competent to dispose of the bail petitions by granting the same.9. on the.....
Judgment:

S. Acharya, J.

1. This revision has been filed by the State against the order of the Assistant Sessions Judge, Bhawanipatna who enlarged the opposite party on bail on his filing and moving a petition for bail before the said Assistant Sessions Judge. This bail petition was filed along with the memo of appeal addressed to the Sessions Judge, As the Sessions Judge was at Bolangir, the Assistant Sessions Judge, Bhawanipatna disposed of the said bail petition by granting the same by the impugned order. Admittedly, the Sessions Judge, Bolangir, had authorised the Assistant Sessions Judge, Bhawanipatna under the pro. visions of Sub-section (4) of Section 17, Criminal P.C., to receive Criminal Appeals and applications on behalf of the Sessions Judge and in his absence, and to dispose of the urgent applications under the aforesaid authority, and soon thereafter to transmit those papers to the court of the Sessions Judge for registration of the appeal and for further orders.

2. Mr. Dhal, the learned Counsel appearing for the State o intended that the Assistant Sessions Judge acted illegally and without jurisdiction in granting bail to the opposite party as the above authorisation by the Sessions Judge was not in accordance with law, and the Assistant Sessions Judge was not legally competent to receive the bail petition and the memo of appeal presented before him. It is however stated in the revision petition and also submitted by Mr. Dhal that the petitioner is not particular fox the cancellation of the bail granted in favour of the opposite party; but is anxious to get the law, involved in this case, settled once for all.

3. Mr. Dhal in support of his above contention cited the Full Bench decision of the Patna High Court reported in A.I.R. 1957 Pat 375 which has been followed in the Full Bench decision reported in A.I.R. 1961 Andh Pra 471. Both the above Full Bench decisions were arrived at entirely on different facts and premises. In the Patna case the appellant filed an appeal against his conviction in the Court of the Assistant Sessions Judge, who admitted the said appeal, stayed the realisation of the fine, issued notice to the opposite party, called for the record and fixed a date of hearing and ultimately heard the appeal and allowed the same by Batting aside the conviction of the appellant. On the above facts, it was urged on behalf of the appellant, as stated by Chaudhuri J.J that the order of acquittal passed by the learned Assistant Sessions Judge was illegal and without jurisdiction inasmuch as he had no powers to receive and admit the appeal and further to hear it himself in contravention Under Sections 403 and 409, Criminal P, C. The contention put forward on behalf of the State, respondent in the said appeal, is that ainoe an Assistant Sessions Judge is also a Court of Sessions there is no bar to an appeal being filed in that court, by a person convicted by a Magistrate of 2nd or 3rd olasa Under Section 408 of the Code, and as such appeals constitute a separate class of appeals which an Assistant Sessions Judge is by implication empowered to bear quite apart from the other 'rind of appeals which are made over to him for hearing under orders of the State Government or the Sessions Judge. Sahai J,, stated that:

The question presented for our decision in this case is whether an Assistant Sessions Judge has jurisdiction to receive and admit an appeal filed Under Section 408 of tie Code of Criminal Procedure and thereafter to proceed to hear and dispose of it.

Choudhari J. after a discussion of the relevant provisions of the Code, in his leading judgment of the Full Bench held that -

It was not the intention of the Legislature that the power given to Assistant Sessions Judges and Additional Sessions Judges to hear appeals Under Section 409 should include also the power to receive and admit such appeals.

Jamuar and Sahai JJ., agreed with the above view.

The facts in : AIR1961AP471 (FB) Ire almost similar to those of the above Patna case, and the question of law urged before the Full Bench waa:

Whether the Additional Sessions Judge concerned had power and competence to receive and hear appeals presented to him against conviction and sentence passed by a Second Glass Magistrate

On such facts and the question raised before them their Lordships of the Andhra Pradesh High Court, in following the above Patna decision, held:

The Additional Sessions Judge in each of the two oases had no power and competence to receive and admit the appeal which was presented to him against conviction and sentence passed by second class Magistrate. He alto had no power and competence to hear and dispose of the appeal which he had received directly from the appellant.

Thus it is evident that whether an Assistant Sessions Judge, authorised Under Section 17 (4), Criminal P.C. to dispose of urgent applications in the absence of the Sessions Judge, Is legally competent to dispose of a bail petition presented before him along with the memo of appeal, was not the subject-matter for decision in both the Full Bench oases refered to above. One has therefore to read and understand the purport and ambit of the above decisions in the light of the faots and he points urged and decided in those cases.

4. In the Patna decision Sahai J., in appending his views on the question specifically urged before them, however observed as follows :

Sub-section (4) of 8.17 lays down that the Sessions Judge may, when he is absent or incapable of acting, provide for the disposal of any urgent application by an Additional or an Assistant Sessions Judge, or, in the absence of any such Judge by the District Magistrate. This sub. Section makes two points perfectly dear. Firstly, all applications which are required by law to be filed in the Court of Session, e.g., an application under Sub-section (5) of Section 497 for cancellation of bail or an application under Sub-section (l) of 8. 498 for grant of bail, must be filed before the Sessions Judge. He has full power to dispose of all such applications and he has also power in the circumstances referred to in Sub-section (4) of Section 17, to authorise a particular officer to dispose of only urgent applications. Secondly, an Additional or an Assistant Sessions Judge, has, in the absence of authorization by the Sessions Judge under the subsection, no power to receive or dispose of an application which is filed in the Court of Session unless it is an application filed in connection with any matter which has legally come within his session.

No doubt all such applications for bail as referred to in the above observations have to be filed before the Sessions Judge under the provisions of Sections 497 and 498, Criminal P.C., but extraordinary provision is made in Sub-section (4) of Section 17, to meet special circumstances arising out of the unavoidable absence of the Sessions Judge or his incapacity to act, either of which may be due to various reasons and factors, some times originating suddenly and/ or in an unforeseen manner, and at times arising out of the peculiar situations and circumstances in which things are placed. When the Sessions Judge is present or is capable of effectively dealing with such urgent applications, he can neither authorize any other Judge nor can such authority, even if conferred, be legally effective for the purpose of disposing of such urgent application. No doubt in the absence of any such authorisation no judge can exercise the power to receive or dispose of any such application. So in the interest of justice, law makes extraordinary provision Under Section 17 (4). Criminal P.C. for the effective and speedy disposal of such urgent applications in the special circum-stances referred to in that subsection.

If the observations of Sahai J., in the above mentioned case are construed to mean that all such applications, invariably, have to be filed before the Sessions Judge under all oiroum-stances and eventualities, and thereafter to be disposid of by other Judges mentioned in that sub.section, the purpose for which the above provision has been made will be frustrated, and the subsection may be rendered nugatory, causing unnecessary hardship and harassment to concerned persons in places lying at a distance from the head.quarters of the Court of Sessions.

5. It was urged by Mr. Dhal, that the Sessions Judge could not have made such general provision for the disposal of all such urgent applications by order. There is nothing in Section 17 (4), Criminal P.C. which fetters the power of the Sessions Judge to make such general provisions for quick acceptance and effective disposal of urgent matters, like bail petitions, under the circumstances referred to in the said-section. From the word 'unavoidably' in that subjection it cannot be said that the provisions of Section 17 (4) are to be resorted to only on each such particular occasion- Such a narrow construction is neither called for on the wordings of the sub-section, nor should be implied into it, as that will frustrate the bene. ficial purpose for which the subjection is pro. vided, and will not meet cases, like the present one, which arise out of the peculiar circumstances and situations in which things are placed.

6. The decision reported in A.I.R. 1954 Baj 22 cited by Mr. Dbal, does not deal with the present question. The authorisation in that case was made in favour of the Additional Sessions Judge of that particular place enabl. ing him to dispose of such matters even when the Sessions Judge waa present at the head, quarters, and so it was held that the aforesaid order of the Sessions Judge was not under 8- 17 (4), Criminal P.C.

7. In a Single Judge decision of the Allahabad High Court reported in 1961-34 All W E (H C) 567, it has been held that:

Section 408, Criminal P.C. lays down that any person convicted on a trial may appeal to the Court of Sessions which would ordinarily mean the Sessions Judge. The appeal lies to the Sessions Judge, but it is not necessary that the Sessions Judge must him. self receive such appeals, He can authorise his Munsarim to collect the appeals, that is, to receive them, and submit them in Court for orders with an offioe report.

The Hon'ble Judge, in adverting to the above mentioned Patna and Andhra Pradesh decisions, observed that both the Full Benches had no ocoaeion to consider whether the Additional Sessions Judge could, on behalf of the Sessions Judge, receive criminal appeals and also whether he could by virtue of an order of transfer, admit and later hear such appeals.

8. On all the above considerations I am of the opinion that in the present case the authorisation made under Sub-section (4) of Section 17, Criminal P.C. by the Sessions Judge in favour of the Assistant Sessions Judge, Bhawanipatna, enabling him to receive on behalf of the Sessions Judge and in his absence urgent applications along with appeal memos and to dispose of such urgent applications on the aforesaid authority, was in accordance with law; and the Assistant Sessions Judge was legally competent to dispose of the bail petitions by granting the same.

9. On the above discussions and considerations I am of the opinion that there is no merit in this revision which is accordingly dismissed.


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