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K.M. Kunjukoru Chinnappan Vs. Neelakantan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1312
AppellantK.M. Kunjukoru Chinnappan
RespondentNeelakantan Chettiar
Cases ReferredRamakrishna Chettiar v. State of Kerala
Excerpt:
- .....which were causing obstruction to a pathway. the petitioner received the order on 25-11-1978. he filed a revision petition before the court of session. ernakulam, on 27-2-1979. the revision petition was made over to the additional sessions judge, parur. for disposal, when it was taken up for disposal it was noted that the petition was barred by limitation, there being a delav of three days. the petitioner, thereupon, filed crl. r.p. no. 32 of 1979, for condoning the delay. the learned additional sessions judge held, apparently following the decision in rama-krishna chettiar v. state of kerala 1977 ker lt 153 : 1977 cri lj 1872 that under section 400 of the code of criminal procedure that court has power only to dispose of cases properly filed before the court of session and transferred.....
Judgment:
ORDER

P. Janaki Amma, J.

1. The petition is filed under Section 482 of the Code of Criminal Procedure for vacating the order of dismissal of Crl. R. P. No. 4 of 1979 by the Additional Sessions Judge Parur. The revision petition was filed against an order dated 14-11-1978 passed by the Sub-Divisional Magistrate, Cochin, calling upon the counter petitioner before him to cut and remove certain arecanut trees which were causing obstruction to a pathway. The petitioner received the order on 25-11-1978. He filed a revision petition before the Court of Session. Ernakulam, on 27-2-1979. The revision petition was made over to the Additional Sessions Judge, Parur. for disposal, When it was taken up for disposal it was noted that the petition was barred by limitation, there being a delav of three days. The petitioner, thereupon, filed Crl. R.P. No. 32 of 1979, for condoning the delay. The learned Additional Sessions Judge held, apparently following the decision in Rama-krishna Chettiar v. State of Kerala 1977 Ker LT 153 : 1977 Cri LJ 1872 that under Section 400 of the Code of Criminal Procedure that Court has power only to dispose of cases properly filed before the Court of Session and transferred for disposal. On that ground the revision petition was dismissed. It is this order of dismissal that is sought to be vacated.

2. On behalf of the petitioner U is areued that the decision in Rama-krishna Chettiar v. State of Kerala 1977 Ker LT 153 : 1977 Cri LJ 1872 has no application in the instant case and that even assuming that the decision has application the learned Additional Sessions Judge should have referred the revision petition back to the Sessions Court for disposal of the application for condoning delay.

3. The decision. Ramakrishna Chettiar v. State of Kerala 1977 Ker LT 153 : 1977 Cri LJ 1872 was in relation to the dismissal of an appeal by an Assistant Sessions Judge, on the ground of bar of limitation. Under Section 374(3) an appeal against the conviction from the Magistrate lies to the Court of Session. Section 381 mentions how as appeal to the Court of Session should be heard and under Sub-section (2) of that section an Assistant Sessions Judge is to hear only such appeals as the Sessions Judge by general or special order makes over to him or as the High Court by special order directs him to hear. Interpreting the above sections it was held by me that the Court of Session is to transfer and the Assistant Sessions Judge is to hear only appeals properly filed and that in cases where the appeal is filed beyond the period of limitation it is for the Court of Session to decide whether the appeal should be received after condoning delay. That is because Section 381 deals with only how an appeal to Court of Session is heard. But the subject matter here is not an appeal but a revision petition filed against an order of the Sub-Divisional Magistrate, Section 400 provides that the Additional Sessions Judge shall have and may exercise all powers of the Sessions Judge under Chapter XXX in respect of any case that may be transferred to him by or under any general or special order of the Sessions Judge. Evidently, this includes the power to dispose of an application for condoning the delay in a case transferred to him by the Sessions Judge, even if such at application is filed after the transfer.

In the light of what is stated above, the order of dismissal passed in the case cannot be justified. The petition is, therefore, allowed: the order of dismissal of the criminal revision petition is set aside. The Additional Sessions Judge will restore the case to file and dispose of it in accordance with law.


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