P. Janaki Amma, J.
1. The petitioner was prosecuted for offences punishable Under Sections 279 and 337 I.P.C. for driving a lorry, KLV 6062 in a rash and negligent manner. He was convicted for the offences. A sentence of fine was imposed on the petitioner under the two heads. The driving licence of the petitioner was cancelled for a period of six months. Aggrieved by the above conviction and sentence, the petitioner filed an appeal before the Sessions Judge, Trivandrum along with a petition to condone delay Under Section 5 of the Limitation Act. The appeal was filed on 2-7-76, On the same day, it was made over to the Asst. Sessions Judge, Attingal. Notice to the State was ordered and the application was directed to be taken along with the appeal. The petitioner had also filed Crl. M. P. 353 of 1976 for suspension of the sentence. Since fine had already been paid, the court directed suspension of the order of cancellation of the driving licence till the disposal of the appeal. When the case came up before the Assistant Sessions Judge, the prayer for condoning the delay was opposed, The petitioner then took up the stand that the delay must be taken to have been condoned in view of the order of suspension of the sentence made by the Sessions Judge. The contention, however, was not accepted by the learned Assistant Sessions Judge. The application for condoning delay was heard on the merits and it was dismissed. Consequently, the appeal against the conviction was also dismissed. The revision petition is filed against the order.
2. Although the contention raised by the petitioner that the delay should have been treated as condoned is not tenable, the procedure followed by the learned Sessions Judge in the matter of the transfer has to be held as wrong and irregular. It is true that an appeal against the judgment of a Magistrate of the Second Class can be heard by an Assistant Sessions Judge in the light of the proviso to Section 381(1) Cr. P. C. But Under Section 381(2) Cr. P. C. an Assistant Sessions Judge is to 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. The reasonable interpretation of the section appears to be that the Assistant Sessions Judge is competent to hear only appeals properly filed Under Section 374(3) Cr. P. C., entertained by the Sessions Judge and thereafter transferred to him. In the instant case, the appeal could have been held as properly filed only on condonation of delay. Refusal to condone delay would have rendered the appeal liable to be dismissed in limine Under Section 3 of the Limitation Act. The proper procedure under such circumstances would have been to order transfer of the appeal after disposal of the application for condoning delay.
3. Another irregularity committed by the Sessions Judge is in the matter of suspension of sentence. Section 389(1) of the Code of Criminal Procedure contemplates suspension of sentence by the appellate court only pending appeal. It follows that before the Court orders suspension, there must be an appeal which is properly filed. In this case, the Court should have disposed of the application for condoning delay before invoking powers Under Section 389(1) of the Code to suspend the sentence. The order of suspension of sentence before the delay is condoned is therefore not justified.
The revision petition is accordingly allowed. The orders of dismissal of the appeal and the application for condoning delay are set aside. The appeal and the application for condoning delay are remanded to the Sessions Judge for disposal according to law in the light of what is stated above. The court may give an Opportunity to the appellant to produce evidence to support his claim for condoning delay.