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Madhuben Vs. Thakarda Lakhaji Sendhaji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1971CriLJ1013
AppellantMadhuben
RespondentThakarda Lakhaji Sendhaji and ors.
Cases ReferredEmperor v. Abdul Razaak A.I.R.
Excerpt:
- .....has power to appoint a judge of the sessions court. the question is whether by directing mr. d. k. shah, additional sessions judge at mehsana to hold charge of the post of the district and sessions judge, mehsana, the government has, in effect and substance, appointed him to be the sessions judge of mehsana. mr. karlekar urged that if the government wanted to appoint mr. d. k. shah as a sessions judge at mehsana, the government would be expected to employ specific language to that effect. the government would not have stated that he should 'hold charge' of the post of the sessions judge. according to mr. karlekar, the government should have stated that mr. d. k. shah was appointed as a sessions judge at mehsana. this argument is, no doubt, plausible, but it does not have any substance.....
Judgment:

Shah, J.

1. The appellant in the case was original complainant in Criminal Case No. 1097 of 1967 before the learned trial Magistrate. The accusation made by the complainant against the respondents Nos. 1 to 3 was that they trespassed into the field and committed the offence punishable Under Section 447 of the Indian Penal Code. The learned Magistrate convicted the respondents Nos. 1 to 3 and sentenced them to a term of imprisonment and fine. They preferred an appeal to the Sessions Court at Mehsana and it was numbered as Criminal Appeal No. 72 of 1968. The appeal was heard by the learned Additional Sessions Judge in that Court who held that the offence was not brought home to respondents Nos. 1 to 3 and therefore, acquitted each of them. This appeal is filed against the aforesaid order of acquittal by the original complainant.

2. Mr. Karlekar who appears for the appellant-complainant raised two contentions before us. The first was that the learned Additional Sessions Judge, who disposed of this appeal, had no jurisdiction to hear it; while the second contention of Mr. Karlekar was that on merits of the case the decision of the learned Appellate Judge is not correct. The respondents Nos. 1 to 3 have been served, but none of them has appeared in this Court. Respondent No 4 is the State of Gujarat and Mr. G. M. Vidyarthi the learned Assistant Government Pleader appears for the State. The contention about jurisdiction arises under the following circumstances.

3. Mr. K. M. Satwani was the Sessions Judge of Mehsana Division and he proceeded on leave for 23 days with effect from 14th June, 1968 to 6th July, 1968. The Government issued an order directing Shri D. K. Shah, Assistant Judge and Additional Sessions Judge, Mehsana 'to hold charge of the post of District and Sessions Judge, Mehsana in addition to his own duties during the absence of Shri K. M. Satwani.' On 21-6-1968 Mr. D. K. Shah made an order transferring certain criminal appeals including Appeal No. 72 of 1968 to the file of himself as Additional Sessions Judge, Mehsana for disposal Under Section 193 (2) of the Code of Criminal Procedure. Mr. D. K. Shah signed this order as 'Additional Sessions Judge, Mehsana I/C. District'. He forwarded a copy of the said order to himself for information.

4. Mr. Karlekar contended that the Government had not appointed Mr. D. K. Shah as the Sessions Judge of Mehsana and therefore, he had no powers to transfer this appeal to himself under the provisions of Section 193 (2) of the Criminal Procedure Code. Mr. Karlekar also contended that a criminal appeal cannot be transferred to Additional Sessions Judge Under Section 193 (2) of the Code. Mr. Vidyarthi, the learned Assistant Government Pleader contended that when the State Government directed Mr. D. K. Shah to hold charge of the post of District and Sessions Judge, Mehsana, the Government, in effect, appointed Mr. D. K. Shah to be the Sessions Judge at Mehsana. So far as the second contention of Mr. Karlekar is concerned, Mr. Vidyarthi pointed out that the Sessions Judge has power to transfer an appeal pending in the Sessions Court to an Additional Sessions Judge in that Court under the provisions of Section 409 (2) of the Criminal Procedure Code. Mr. Vidyarthi urged that the mention of a wrong section of the Criminal Procedure Code by the learned Additional Sessions Judge would not make his order illegal on that account alone.

5. It is true that Under Section 9 of the Criminal Procedure Code, the State Government has Dower to establish a Court of Session for every Sessions division and to appoint a Judge of such Court in consultation with the High Court. By Sub-section (3) of Section 9. the State Government may also, in consultation with the High Court, appoint an Additional Sessions Judge and Assistant Judge to exercise jurisdiction in one or more such courts. Under Section 9, therefore, the State Government has power to appoint a Judge of the Sessions Court. The question is whether by directing Mr. D. K. Shah, Additional Sessions Judge at Mehsana to hold charge of the post of the District and Sessions Judge, Mehsana, the Government has, in effect and substance, appointed him to be the Sessions Judge of Mehsana. Mr. Karlekar urged that if the Government wanted to appoint Mr. D. K. Shah as a Sessions Judge at Mehsana, the Government would be expected to employ specific language to that effect. The Government would not have stated that he should 'hold charge' of the post of the Sessions Judge. According to Mr. Karlekar, the Government should have stated that Mr. D. K. Shah was appointed as a Sessions Judge at Mehsana. This argument is, no doubt, plausible, but it does not have any substance therein. The question, is not what the Government ought to have done. The question is to find out as to what the Government has actually done. The Government was aware that the department incumbent of the post of Sessions Judge had proceeded on leave for a short period. The Government was also aware that there was no Sessions Judge in the Sessions Court at Mehsana. It is also very clear that the Government intended to make provision for the exercise of his powers during the period of his absence. It is also clear that the Government has moved in the matter by asking Mr. D. K. Shah 'to hold charge' of the post of Sessions Judge at Mehsana. What is meant by the phrase 'to hold charge of post?' This phrase is not used in the Criminal Procedure Code. In Webster's Dictionary one of the meanings of the word 'Charge' is 'responsibility or duty (of); as, to take charge of finance.' When therefore, a person is asked to take charge of a post, he is asked to undertake the responsibility or duty of that post. After the Government passed the order directing Mr. D. K. Shah to take charge of the post of the Sessions Judge, Mehsana, Mr. D. K. Shah did not remain merely an Additional Sessions Judge. In addition to his substantive post of the Additional Sessions Judge he also held charge of the post of Sessions Judge i. e. he undertook the responsibility or duty of the post of Sessions Judge, Mehsana. In other words, by holding charge of the post of Sessions Judge of Mehsana, Mr. D. K. Shah began to fulfil the responsibility relating to the post of Sessions Judge, Mehsana. This is equivalent to his appointment to the post of Sessions Judge, Mehsana. There is nothing unusual in Mr. D. K. Shah holding the charge of the post of Sessions Judge, Mehsana in addition to his duties as the Additional Sessions Judge. What is that something more which Mr. D. K. Shah began to hold in his charge? That something more is the post of Sessions Judge. The Government directed him to undertake the responsibilities and duties of the post of the Sessions Judge, Mehsana. By its order, the State Government invested Mr. D. K. Shah with some more powers than what he already had as an Additional Sessions Judge. These additional powers were those which flow from the post of Sessions Judge. The order of Government does not place any restriction or limitation on the extent or exercise of such powers. In our opinion, this means nothing more or less than appointing him as the Sessions Judge, Mehsana. It was urged that in view of Rule 609 of the Bombay Civil Services Rules, Mr. D. K. Shah was competent to perform only the current duties of the post and therefore, he cannot exercise the powers of transfer. The argument has no substance.

6. Mr. Vidyarthi relied upon a decision in the case of Ram Krishna v. Emperor : AIR1938Cal195 . In that matter the case was filed in the Court of the Sub-Divisional Officer. The Collector had given an authority to the second officer in the Sub Division to be in charge of the S. D. O.'s file at headquarters so long as he was on tour; and the question before the Court was whether the second Officer who tried the case was appointed as S. D. O. by virtue of this order or not. It was urged in that case that by this order the second officer was not appointed Sub Divisional Officer. The Court observed:

This he might do without relieving the permanent incumbent. The petitioners maintain that mere authority to be in charge of the S. D. O.'s file at headquarters does not amount to an appointment Under Section 13. We do not think that this is a correct view to take. It means that there is an appointment, but the appointment is limited only to a particular kind of work and a particular occasion. There is nothing in Section 13 to prevent such a limited appointment being made. On a reasonable construction of this section and of the standing order, we must therefore, hold that Mr. Dutt was validly appointed as S. D, 0. both on 8th and 18th May to be in charge of Mr. Singha's general file at headquarters.

6A. Mr. Karlekar relied upon a decision in the case of M. Narayanamma v. M. Satyanarayana : AIR1960AP425 . in that case, however, the facts were quite different. In that case, after hearing the appeal, the learned Sessions Judge died. A successor to him was appointed on 15th February, 1957 and he took charge of the office on 27th February 1957. After the death of the Sessions Judge, but before the new Sessions Judge took charge of the office, the Additional Sessions Judge in that Court, who was appointed by the High Court to perform the administrative duties of the office of the District Judge, transferred the criminal appeal to himself under the provisions of Section 409 (2) of the Code of Criminal Procedure. The question arose in that case whether the Additional Sessions Judge was competent to transfer the appeal in that manner to his own file and to dispose it of. The Court held that the Additional Sessions Judge was not a Sessions Judge and therefore, he had no power to transfer the appeal to himself. It may be pointed out that in that case there was no order of the State Government in respect of the Additional Sessions Judge. The order that was made was by the High Court and that order merely permitted him to perform the duties of the District Judge. There was no order authorising him to perform the duties of the Sessions Judge. Obviously, therefore, the Additional Sessions Judge had no authority of the Sessions Judge with him and therefore, he could not exercise the powers of transfer Under Section 409 (2) of the Criminal Procedure Code.

7. It was urged that by asking Mr. D. K. Shah to hold charge of post of Sessions Judge, the State Government directed him only to hold charge of the current duties of the Sessions Judge and therefore, Mr. D. K. Shah could perform only the administrative functions of the Sessions Judge and could not pass judicial order. It was urged that the order of transfer is a judicial order and hence the order is without jurisdiction. Mr. Karlekar did not cite any authority in support of his argument. We are unable to accept the same. In the first place, the order of the State Government does not, in terms specify that Mr. D. K. Shah is to discharge merely administrative duties. Secondly, the provisions of Criminal Procedure Code do not envisage appointment of a Sessions Judge for a limited purpose only. Either the State Government appoints a Sessions Judge or it does not, there cannot be a partial ap- pointment. If a Sessions Judge is appointed, he derives authority to perform his functions from the statutory provisions; it does not lie with the State Government to cut down his statutory powers. In our opinion, the argument that Mr. D. K. Shah was appointed Sessions Judge only to discharge administrative functions cannot be accepted.

8. Mr. Karlekar then stated that Under Section 193 (2) of the Criminal Procedure Code, an appeal cannot be transferred to the file of an Additional Sessions Judge. He stated that Section 193 (2) refers to such cases as are committed for trial to the Sessions Court, and does not include, within its ambit, an appeal filed in the Sessions Court from the decision of a Magistrate. For this purpose he relied upon a decision in the case of Emperor v. Abdul Razaak A.I.R. 1915 All 101. That case does lay down that the powers of transfer Under Section 193 (2) of the Criminal Procedure Code do not include therein powers to transfer an appeal. But the power to transfer an appeal is given to a Sessions Judge by the provisions of Section 409 (2) of the Code. Mr. Karlekar did not dispute that a Sessions Judge can transfer an appeal to an Additional Sessions Judge. His contention was that in doing so the Sessions Judge should act under the provisions of Section 409 (2) and not Under Section 193 (2) of the Criminal Procedure Code. In the Allahabad case relied upon by Mr. Karlekar, the transfer was made to the Assistant Sessions Judge, which cannot be done under the provisions of Section 409 (2). It was, therefore, that the order in that case was held to be illegal. That is not the position here. The transfer is made to the Additional Sessions Judge. If the Sessions Judge has in fact the power to transfer the appeal under the provisions of Section 409 (2) of the Criminal Procedure Code, it is immaterial that the learned Sessions Judge has purported to act Under Section 193 (2) of the Code. What is necessary to be looked at is whether the Sessions Judge has power to transfer the appeal. If he has such power by virtue of some provisions of law, then merely because the Sessions Judge quoted some other provisions of law as being the source of his power, it would not introduce any illegality in the order of transfer made by him. This stand of Mr. Karlekar also, therefore, does not appear to be sound.

9. Turning to the merits of the case, there is no doubt that the order passed by the learned Additional Sessions Judge is correct and there is no reason to interfere with it. The complainant-appellant obtained possession of the field on 11-7-1966. On that date respondents Nos. 1 to 3 to whom previous intimation was given to remain present on the spot did not remain present. There is nothing to show that either of them was made aware of the fact that possession has been delivered to the complainant-appellant. After taking possession on 11-7-1966, no one on behalf of the appellant-complainant went to the field except on 1-8-1966 when it was found that respondents Nos. 1 to 3 were in the field. Assuming that the complainant had obtained possession of the field on 11-7-1966 yet in the absence of any knowledge that the complainant has taken possession during their absence, the respondents cannot be fixed with knowledge that they had entered in the field which was in possession of somebody else. On the other hand in the absence of knowledge about such delivery of possession to the complainant, the respondents would feel that the possession still continues with them and if they entered the field they would be doing so in bona fide belief that they are not doing anything wrong. The offence punishable Under Section 447 requires, as one of its essential ingredients, intention to commit an offence or an intention to insult or annoy the person in possession. If the respondents Nos. 1 to 3 entered into the field in the bona fide belief that they continued to be in possession thereof, necessarily, there is absence of any such intention so as to make out an offence punishable Under Section 447 of the I. P. Code. The conclusion therefore, to which the learned Additional Sessions Judge has reached is correct.

10. The result, therefore, is that this appeal fails and is dismissed.


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