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Gopalan and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1217
AppellantGopalan and anr.
RespondentState of Kerala
Cases ReferredOuseph v. State of Kerala
Excerpt:
- - this view must hold good under the provisions of the code of 1973 as well; in the result, these petitions fail and are hereby dismissed......of by an assistant sessions judge or a chief judicial magistrate and that an additional sessions judge, assistant sessions judge or a chief judicial magistrate shall hear only such appeals as the sessions judge of the division may, by general or special order, make over to him or as the high court' may, by special order, direct him to hear. in both the cases before us the appeals were filed before the court of session and the sessions judge, trichur made over the appeals to the chief judicial magistrate, trichur and the assistant sessions judge, trichur respectively. these made over appeals were disposed of by them, it is argued by sri. p.v. ayyappan, the learned counsel for the petitioners, that the assistant sessions judge and the chief judicial magistrate have no powers of.....
Judgment:

U.L. Bhat, J.

1. Criminal Misc. Petition No. 1074 of 1980 has been filed to quash the proceedings in C.C. No. 2515 of 1977 on the file of the Judicial Magistrate of the Second Class. Trichur, which has been confirmed in Criminal Appeal No. 28 of 1979 by the Chief Judicial Magistrate, Trichur and in Criminal Revision No. 40 of 1979 by the Additional Sessions Judge, Trichur. Cri. M. P. No. 1088 of 1980 has been filed to quash the proceedings in C. C. No. 850 of 1977 on the file of the Judicial Magistrate of the Second Class, Trichur, confirmed in Criminal Appeal No. 1 of 1979 on the file of the Additional Assistant Sessions Judge, Trichur and in Criminal Revision No. 28 of 1979 of the Additional Sessions Judge, Trichur.

2. The petitioner in Crl M. P. No. 1074 of 1980 has been convicted under Sections 55 (a) and 55(b) and Section 58 of the Abkari Act 1 of 1077 for illicit distillation of arrack in his house, which was detected by the patrol party consisting of P. Ws. 3, 4 and others. He was sentenced to under- go simple imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment of fine to suffer simple imprisonment for two months more under Section 55(b) of the Act. No separate j sentences were awarded for offences under Sections 55(a) and 58 of the Abkari Act.

3. The petitioner in Crl. M. P. No. 1088 of 1980 was convicted under Section 55(g) of the Abkari Act 1 of 1077 for being in possession of illicit wash fit for distillation and illicit distillation apparatus and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/-and in default to suffer simple imprisonment for two months more. The offence was detected by a patrol party consisting of P. W. 3 and others.

4. Against his conviction and sentence by the Judicial Magistrate of the Second Class. No. 1, Trichur, the petitioner in Crl. M. P. No. 1074 of 1980 filed an appeal before the Court of Session. Trichur. The appeal was received on file by the Sessions Judge, who also ordered suspension of the sentence. Thereafter the appeal was made over to the Chief Judicial Magistrate, Trichur and it was numbered as Criminal Appeal No. 28 of 1979. Against the decision in Criminal Appeal No. 28 of 1979 the petitioner preferred Criminal Revision No. 40 of 1979 before the Court of Session, Trichur. The revision was admitted and made over to the Additional Sessions Judge. Trichur. who heard it and disposed it of.

5. Against his conviction and sentence the accused in C.C. No. 850 of 1977 filed an appeal before the Court of Session. Trichur. The Sessions Judge received the appeal on file, passed an order suspending the sentence and made over the appeal to the Additional Assistant Sessions Judge, Trichur. who renumbered the appeal as Criminal Appeal No. 1 of 1979, heard the same and disposed it of. Against that decision the petitioner in Crl. M.P. No. 1088 of 1980 filed a revision before the Sessions Court, Trichur as Criminal Revision No. 28 of 1979. The Sessions Judge admitted the revision and made it over to the Additional Sessions Judge, Trichur, who heard it and disposed it of.

6. The two Crl. M. Ps. were heard by one of us at an earlier stage. The jurisdiction of the Sessions Judge, Trichur to admit the revisions and to dispose them of was challenged on the ground that the Sessions Judge has no powers of revision over the appeals disposed of by Assistant Sessions Judge or the Chief Judicial Magistrate. The learned Public Prosecutor inter alia contended then that the petitioners having submitted themselves to the re visional jurisdiction of the Court of Session, Trichur cannot turn round and question the jurisdiction. The learned Public Prosecutor rtlied on the decision of a single Judge of this Court in Ouseph v. State of Kerala 1980 Cri LJ 1214. The learned Counsel for the petitioners doubted the correctness of that decision and hence the two petitions were referred to a Division Bench.

7. The learned Counsel for the petitioners did not address any argument on the merits of the two cases. On an appreciation of the evidence and the circumstances of the two cases, the learned trial Magistrate convicted the two petitioners and the convictions were confirmed by the two courts below. Therefore, there are no grounds to interfere with the convictions or the sentences entered in either of the two cases on merits.

8. The learned Counsel for the petitioners urged only two contentions before us. The first of them is that the Court of Session. Trichur has no revisional jurisdiction over the appellate judgments of the Assistant Sessions Judge or the Chief Judicial Magistrate. The second contention is 'that the court of the Assistant Sessions Judge exercising appellate jurisdiction is not a court inferior to the Court of Session presided over by a Sessions Judge and therefore, against the decision of the Assistant Sessions Judge, Trichur, the Court of Session, Trichur has no powers of revision.

9. Section 374 of the Code of Criminal Procedure, 1973 (for short the 'Code') provides for appeals from convictions. Sub-section (3) of that section provides for an appeal to be filed before the Court of Session by any person convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, etc. Section 381 of the Code states that an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by Additional Sessions Judge provided that an appeal against a conviction on a trial held by a Magistrate of the Second Class may be heard and disposed of by an Assistant Sessions Judge or a Chief Judicial Magistrate and that an Additional Sessions Judge, Assistant Sessions Judge or a Chief Judicial Magistrate shall hear only such appeals as the Sessions Judge of the division may, by general or special order, make over to him or as the High Court' may, by special order, direct him to hear. In both the cases before us the appeals were filed before the Court of Session and the Sessions Judge, Trichur made over the appeals to the Chief Judicial Magistrate, Trichur and the Assistant Sessions Judge, Trichur respectively. These made over appeals were disposed of by them, It is argued by Sri. P.V. Ayyappan, the learned Counsel for the petitioners, that the Assistant Sessions Judge and the Chief Judicial Magistrate have no powers of institution of appeals and could dispose of appeals filed before the Court of Session and made over by the Sessions Judge of the division to them and that when they dispose of such appeals, in effect, they are disposing of the appeals of the Court of Session and that being so, against such decisions, the Court of Session could not have revisional jurisdiction. In such cases, according to the learned Counsel, the Court of Session would be sitting in revision over decisions of appeals of the Court of Session and this is said to be incongruous. -The learned Counsel also relied on the decision of the Full Bench of the Patna High Court reported in Kamleshwar Singh v. Dharamdeo Singh : AIR1957Pat375 .

10. In Kamleshwar Singh's case : AIR1957Pat375 an appeal against the conviction and sentence of a Magistrate of the Second Class was filed before the Assistant Sessions Judge, who admitted the appeal and disposed it of. The question arose whether he had power to receive the appeal. It was argued before the Full Bench of the Patna High Court that the Court of Assistant Sessions Judge is also a Court of Session and therefore he had powers of institution of appeals. This contention was negatived on an examination of the relevant provisions of the Code of Criminal Procedure, 1898 (for short the 'old Code'). The Full Bench of the Patna High Court held that the provisions of the old Code would show that there can be only one Court of Session in a division and that Court is presided over by the Sessions Judge. In other words, there can be only one Sessions Judge in a Sessions Division; and the Assistant Sessions Judge exercising jurisdiction in the Court of Session has no separate or independent entity in the sense that the court over which he presides while exercising such Jurisdiction does not constitute an independent Court of Session within the meaning of Section 9 (1) of the old Code and in this view, it was held that the Sessions Judge alone has complete jurisdiction by virtue of his position as a Judge of the Court of Session to receive appeals, etc. and that any Additional or Assistant Sessions Judge is exercising powers of a Court of Session subject only to such limitations or restrictions as are expressly placed upon his powers by law in respect of cases which are legally placed before him for disposal. This view must hold good under the provisions of the Code of 1973 as well; but we do not see that these principles have any direct bearing on the questions involved in the cases before us.

11. It is true that there is only one Court of Session in a Sessions Division and that Court is presided over by the Sessions Judge. Additional Sessions Judges and Assistant Sessions Judges are appointed only to exercise jurisdiction in the Sessions Division. The courts of the latter category are not independent Courts of Session. At the same time the Additional or Assistant Sessions Judges preside over Courts of Session in a Sessions Division and to that extent and in that light those courts are also Courts of Session; but they are not Courts of Session presided over by a Sessions Judge, Does this mean that when an Assistant Sessions Judge or even a Chief Judicial Magistrate hears and disposes of an appeal made over to him by a Sessions Judge of a Sessions Division he is disposing of an appeal of a Court of Session? Does H also mean that the Court of Session cannot exercise revisional jurisdiction over the appellate judgments of the Assistant Sessions Judge

12. If we accept the argument of learned Counsel for the petitioners it must naturally follow that the Court of Session cannot have appellate powers over any decision of an Assistant Sessions Judge exercising original jurisdiction. With reference to cases exclusively triable by Court of Session, Section 209 of the Code requires a Magistrate to commit the cases to Court of Session. Section 10(2) of the Code requires the Sessions Judge to make rules consistent with the Code as to the distribution of business among such Assistant Sessions Judges. Section 194 of the Code states that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. Section 28 of the Code deals with sentences which High Courts and Sessions Judges may pass. It is seen that while the Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law subject of course to the limitation that any sentence of death passed by any such Judge shall be subject to confirmation by the High Court, it is laid down that an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus, it is seen that no case can be committed by a Magistrate to an Assistant Sessions Judge. Assistant Sessions Judge has no independent powers of receiving orders of committal straightway from any Magistrate. He has power to try a Sessions Case, but the opportunity for trial arises only when the Sessions Judge of a Sessions Division makes over a case to him though his powers of passing sentence are limited. Does it mean that when an Assistant Sessions Judge tries and disposes of a Sessions case he is disposing of a case of the Court of Session with the consequence that the Court of Session cannot sit in appeal over his judgment? It cannot certainly mean this, since the Code itself provides under Section 374(3) for an appeal being filed to the Court of Session against the conviction on a trial held by an Assistant Sessions Judge. On the same analogy, it must mean that when an Assistant Sessions Judge or a Chief Judicial Magistrate hears and disposes of an appeal made over to him by a Sessions Judge, he is not disposing of the appeal of the Court o' Session.

13. When a Sessions Judge makes over an appropriate appeal to the Assistant Sessions Judge or Chief Judicial Magistrate, he loses seisin, control or jurisdiction over it except of course that he can recall it and dispose it of himself or make it over to any other competent Judge. The jurisdiction of the Assistant Sessions Judge as also of the Chief Judicial Magistrate on the one hand and that of the Sessions Judge on the other, as courts of appeal, are not and have not been declared to be equal. Their courts are not courts of co-ordinate jurisdiction. An Assistant Sessions Judge or Chief Judicial Magistrate has powers to hear appeals by virtue of the powers conferred upon him by the Code. But, they get opportunity of hearing appeals only when a Sessions Judge makes over appeals to them. They have no powers of institution of appeal. Once an appeal is made over to the Chief Judicial Magistrate or to the Assistant Sessions Judge in a Sessions Division, what he hears is not an appeal of Court of Session but an appeal of his own court. When an appeal is made over to him it becomes his file or his proceeding and it loses its character as appeal of the Court of Session. We therefore, reject the contention that the Assistant Sessions Judge or the Chief Judicial Magistrate exercising appellate jurisdiction and disposing of appeals, are disposing of appeals of the Court of Session and, therefore a revision cannot, in principle, lie against their judgments to the Court of Session.

14. Section 397 of the Code states that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local 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 the proceedings of such inferior Court. The reference to the 'Sessions Judge' in this section, is of course, to the Sessions Judge presiding over the Court of Session. The powers of revision of a Sessions Judge are provided under Section 399 of the Code. It is by virtue of Section 400 of the Code that an Additional Sessions Judge gets power to hear and dispose of cases which may be transferred to him by or under any general or special order of the Sessions Judge.

15. It is not argued before us that the Court of Chief Judicial Magistrate is not an inferior criminal court to that of a Court of Session. Section 15 of the Code specifically declares that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and that every other Judicial Magistrate shall, subject to the general cdn-trol of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. The power of sentencing vesting in these Magistrates is less than the power vested in the Sessions Judge. Section 374(3) of the Code, as stated above, provides for an appeal to the Court of Session against the convictions entered by all Judicial Magistrates. This power of appeal makes a Court of Session superior to the Courts of all Magistrates inclusive of the Chief Judicial Magistrates, for the purpose of Section 195(4) of the Code also. Explanation to Section 397(1) of the Code also makes it clear that all Magistrates shall be deemed to be inferior to the Sessions Judge for the purpose of that sub-section and of Section 398 of the Code. Therefore, it is clear that the Court of Chief Judicial Magistrate is inferior criminal court vis-a-vis a Court of Session. While conceding that a court of Chief Judicial Magistrate is an inferior court vis-a-vis a Court of Session and also conceding that the Court of Assistant Sessions Judge exercising original jurisdiction is subordinate to a Court of Session, the learned Counsel for the petitioners contends that the Court of Assistant Sessions Judge exercising appellate jurisdiction is not an inferior criminal court vis-a-vis Court of Session and therefore the latter cannot exercise revisional jurisdiction over the appellate judgments of the Assistant Sessions Judge. To sustain this argument the learned Counsel for the petitioners relied on the Explanation to Section 397(1) of the Code and stated that the absence of any reference to an Assistant Sessions Judge in the Explanation is a clear indication that the legislature intended to exclude the power of revision of the Court of Session over the appellate judgment of the Assistant Sessions Judge. According to the learned Counsel for the petitioners, the Explanation has the effect of limiting the provisions of Section 397(1) of the Code.

16. Explanation to Section 397(1) of the Code reads thus:

Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

We have already mentioned that there cannot be any controversy and this is also conceded that the Assistant Sessions Judge is subordinate to the Sessions Judge, i. e, a Sessions Judge presiding over the Court of Session. The expression used in Section 397(1) of the Code is 'inferior' and not 'subordinate'. Inferiority is different from subordination. One who is subordinate is certainly inferior; but the contrary may not be true always. All subordinates are inferior to the authority to which they are subordinate, but not vice versa. An Assistant Sessions Judge is certainly not superior to the Court of Session. Except in special cases and to a limited extent, he is not even a Judge of co-ordinate jurisdiction. His court can only be inferior to the Court of Session.

17. The expression 'inferior court' is a clear and unambiguous expression. The legislative intent in using this expression is clear and manifest. Attaching to this expression its plain and ordinary meaning, it must follow that the Court of Assistant Sessions Judge is an inferior Court to the Court of Session. The object of the Explanation to a Section is to understand that section in the light of the Explanation. An Explanation only makes the meaning of the section clear. An Explanation must be read so as to harmonise with the section. At times, an Explanation may also widen the scope of the provisions contained in a section. This is clear from the reference in the Explanation to 'executive magistrates'. An executive magistrate is not subordinate to the Court of Session. Appeals do not lie to the Court of Session from the decisions of the Executive Magistrates. An Executive Magistrate cannot perform the functions vested in a Judicial Magistrate under the Code. While the Court of Session is undoubtedly superior to the courts of all Judicial Magistrates, it cannot be said that a Court of Session is superior to an Executive Magistrate. By the Explanation to Section 397(1) it is intended to bring the decision of the Executive Magistrates also under the revisional umbrella of the Court of Session presided by a Sessions Judge. That is why a reference was made to Executive Magistrates in the Explanation. Looking at it this way, it is clear that the Explanation is intended only to widen the scope of the main section by declaring courts of Executive Magistrates also as inferior Courts to the Sessions Judge.

18. The learned Counsel for the petitioners contended that since the Explanation does not mention that an Assistant Sessions Judge exercising appellate jurisdiction is inferior to the Sessions Judge, it must follow that he is not inferior to the Sessions Judge. To test the correctness of this argument, we will have to look into the historical background of this provision.

19. In the Code of 1861 the corresponding provision referred not to an 'inferior criminal court' but to 'subordinate court'. It has to be remembered that at that time there was no separation of judiciary from the executive and the District Magistrates and the Magistrates of the lower rank were exercising both judicial and executive functions. The use of the expression 'subordinate courts' created difficulties because in certain matters the District Magistrates were not subordinate to Sessions Judge. Therefore, in the subsequent enactments of 1882 and of 1898, the expression 'inferior court' was used instead of 'subordinate court'. This was to make it clear that a Sessions Judge had powers of revision over the decisions of District Magistrates as the Court of a District Magistrate was certainly an inferior court to the Court of Session. This background has been explained in Queen-Empress v. Laskari (1885) ILR 7 All 853 (FB)1.

20. In the old Code, as it originally stood, there was no Explanation to Section 435(1). Explanation was introduced only by the Amendina Act 18 of 1923. The Explanation read as follows:

Explanation. - All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 437.

It is necessary to understand the purpose for which this explanation was introduced.

21. Section 17 (3) of the old Code stated that all Assistant Sessions Judges shall be subordinate to the Sessions Judge, while Section 17 (5) of the old Code stated that neither the District Magistrate nor the Magistrate or Benches appointed or constituted under Sections 12. 13, 14 and 15 shall be subordinate to the Sessions Judge, except to the extent and in the manner expressly provided. Appeals lay to the District Magistrate against the conviction and sentence entered by the Magistrates of the Second Class and the Third Class. District Magistrates alone had powers of transfer of cases from one Magistrate to another and the Sessions Judge did not have any such power. Of course appeals lay to the Court of Session against the decisions of the District Magistrate and therefore for the purpose of Section 195 of the Code, the court of the District Magistrate would be subordinate to the Court of Session on account of the latter's appellate powers. The Sessions Judge, the District Magistrate and the Sub Divisional Magistrate had concurrent powers of revision and that was only to a very limited extent. These provisions showed that while normally the District Magistrate was not subordinate to the Court of Session, he was subordinate only to a very limited extent.

22. This led to difference of judicial opinion as to whether District Magistrate exercising appellate powers or revisional powers was an inferior criminal court to the Court of Session. For example, in (1910) 14 Cal WN 206n, the view taken was that the District Magistrate was not inferior and therefore, the Court of Session had no revisional power over his appellate judgments. A contrary view was taken in the decision reported in 1913 Punj LR No. 335 p. 1109 : 14 Cri LJ 659, 1904 Punj LR 15 etc. Similarly, the decision in (1895) ILR 22 Cal 573 took the view that the Court of Session had power of revision over the decisions of the District Magistrates exercising revisional jurisdiction while a contrary view was taken in certain other decisions such as (1903) ILR 26 Mad 477, etc. (Vide Kallu v. Emperor AIR 1922 Lah 85 : 23 Cri LJ 577.)

23. It was in this background that the Explanation was added to Section 435(1) of the Code to state that 'All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 437'. The Explanation had a twofold purpose, viz. of to make it clear that the appellate judgments of the District Magistrates were subject to the revisional jurisdiction of the Sessions Judge and also to make it clear that the revisional orders of the District Magistrate were not subject to the revisional jurisdiction of the Sessions Judge.

24. The Code of 1973 has brought about vast changes in regard to these matters. It has separated the Judicial Magistracy from the Executive Magistracy. The inferiority of the Chief Judicial Magistrate has been specifically declared so as to be above any controversy. At the same time, the separation meant that the Executive Magistrates are not subordinate to the Court of Session. The Chief Judicial Magistrate has no power to entertain appeals as in the old Code; but has power only to hear and dispose of appeals made over to him by the Court of Session. The Chief Judicial Magistrate has no power of revision at all nor has he the power of transferring the cases. Thus, the provisions of the Code make it clear beyond any doubt that the Chief Judicial Magistrate and the Magistrates are subordinate to the Sessions Judge. Being subordinate courts they are also inferior courts vis-a-vis the Court of Session. But, in spite of the clarity provided by these provisions, that part of the Explanation to Section 397(1) of the Code referring to Judicial Magistrates has been retained. It is clear that the Explanation is intended to cover all categories of magistracy, but has no reference to Assistant Sessions Judges, Courts of Assistant Sessions Judge, as we have already seen, are certainly courts inferior to the Court of Session. That position is clear on a plain reading of the section even without the Explanation. The fact that the Explanation seeks to make clear the position of the magistracy cannot mean that the Explanation is intended to remove the courts of Assistant Sessions Judges exercising original or appellate jurisdiction beyond the purview of the revisional jurisdiction of the Sessions Court. It is not argued before us that the omission of any reference to Assistant Sessions Judge in the Explanation to Section 397(1) would result in the judgment of the Assistant Sessions Judge passed, in exercise of the original jurisdiction, being taken out of the purview of the revisional jurisdiction of the Court of Session. Such a contention would certainly be untenable. If that be so, the contention that the non-mention of the appellate jurisdiction of the Assistant Sessions Judge in the Explanation would have the result of taking away the revisional jurisdiction of the Court of Session over the appellate judgment of the Assistant Sessions Judge is also untenable. We, therefore, reject this contention. We hold that the Sessions Judge has revisional jurisdiction in relation to the appellate judgment of the Assistant Sessions Judge and the Chief Judicial Magistrate.

25. The learned Public Prosecutor contended on the strength of Ouseph v. State of Kerala 1980 Cri LJ 1214 (Ker) that the petitioners having invoked the revisional jurisdiction of the Sessions Judge cannot now turn round and say that he has no such jurisdiction. In the light of the view we have taken, regarding the existence of the revisional jurisdiction of the Sessions Judge, it is unnecessary for us to consider this question.

In the result, these petitions fail and are hereby dismissed.


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