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In Re: Palanisamy Chettiar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 453 of 1956 (Cr. Revn. Petn. No. 414 of 1956)
Judge
Reported inAIR1957Mad351; 1957CriLJ642
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 9, 9(3), 39, 408 and 409; Constitution of India - Article 233; General Clauses Act, 1897 - Sections 15 and 18
AppellantIn Re: Palanisamy Chettiar
Appellant AdvocateA.S. Sivakaminathan, Adv.
Respondent AdvocateAdv. General for Public Prosecutor
DispositionRevision dismissed
Cases ReferredAlaga Pillai v. Emperor
Excerpt:
.....of 1955--effect of--constitution of india article 223--notification by government--appointment of district magistrates as assistant sessions judges to hear appeals under sections 408 and 400--whether violates article 233 ; sections 408 and 409 of the code of criminal procedure as amended by act xxvi of 1955 provides that any person convicted in a trial by a district magistrate or any other magistrate may appeal to the court of session, and such appeals could be heard, either by a sessions judge or by an assistant sessions judge. the result is that the appeals which were originally heard by the district magistrate are now required to be heard by the sessions judge or the assistant sessions judge. notwithstanding the amendment taking away from the district magistrates the power to hear..........to a fine of rs. 15. there was an appeal as against that conviction and sentence, heard by the district magistrate, kumbakonam, as assistant sessions judge, and dismissed by him.this revision is filed against that order of dismissal, confirming the conviction and sentence pass-ed by the sub-magistrate. under the old section 407, cr. p. c., any person convicted on a trial held by any magistrate, ii or iii class, was allowed to appeal to the district magistrate; but, by the amending act xxvi of 1955, which came into force from 1-1-1956, that section was deleted and the old section 408 amended, providing that any person convicted on a trial by a district magistrate or any other magistrate may appeal to the court of session; and section 409 as amended provides that an appeal to the court.....
Judgment:
1. This revision is posted before this Bench as it was considered that grounds 6 and 7 taken in the Memorandum of the Criminal Revision Petition raised important questions. The petitioner was convicted by the Sub-Magistrate of Kumbakonam on a charge under Section 323, I. P. C., and sentenced to a fine of Rs. 15. There was an appeal as against that conviction and sentence, heard by the District Magistrate, Kumbakonam, as Assistant Sessions Judge, and dismissed by him.

This revision is filed against that order of dismissal, confirming the conviction and sentence pass-ed by the Sub-Magistrate. Under the old Section 407, CR. P. C., any person convicted on a trial held by any Magistrate, II or III class, was allowed to appeal to the District Magistrate; but, by the amending Act XXVI of 1955, which came into force from 1-1-1956, that section was deleted and the old Section 408 amended, providing that any person convicted on a trial by a District Magistrate or any other Magistrate may appeal to the Court of Session; and Section 409 as amended provides that an appeal to the Court of Session shall be heard by the Sessions fudge or by an Additional Sessions Judge or an Assistant Sessions Judge, provided that no such appeal shall be heard by an As-sistant Sessions Judge unless the appeal is of a per-son convicted on a trial held by any Magistrate of second or third class.

It will therefore be seen that according to the amended provisions, the appeal against the conviction by Magistrates of the second or third class lay to the Court of Session, and such appeals could be beard either by the Sessions Judge or by an Assistant Sessions Judge. The result was that the appeals which were originally heard by the District Magistrate are now required to be heard by the Sessions Judge or the Assistant Sessions Judge.

2. But, our State Government thought that notwithstanding the amendment taking away from the District Magistrates the power to hear appeals, those Magistrates should nevertheless be appointed as Assistant Sessions Judges and empowered to hear appeals under Sections 408 and 409 as amended.

They accordingly published a notification in the Fort St. George Gazette, G. O. Ms. 3617 (Home) dated 19-12-1953, appointing with eilect from 1-1-1956 the District Magistrates of the various districts mentioned in column No. 1 as Assistant Sessions Judges to exercise jurisdiction in the Court of Session in the Sessions divisions noted in the corresponding entry in column No. 2 and holding sittings at the places specified in the corresponding entries in Column No. 3, and further directing that they shall hear appeals of persons convicted on a trial held by any Magistrate of second or third class exercising jurisdiction within the respective Sessions divisions. _

It will be seen that items 11 and 12 of the table appended to that notification mentioned the District Magistrate, Tanjore, at Kumbakonam, in regard to Sessions divisions, West Tanjore and East Tanjore, with places of sitting at Kumbakonam and Negapa-tam respectively. It was in pursuance of this noti-fication that, in the present case, the District Magistrate, Kumhakonam, heard the appeal of the petitioner against his conviction by the Sub-Magistrate, Kumhakonam, and dismissed the appeal. In the first place, it was contended that the appointment of a single Assistant Sessions Judge for two Sessions divisions was illegal (ground No. 7).

But this contention has utterly no force and completely ignores the specific provisions of Section 9, Cr. P. C. Under Clause (1) of that section, the State Government shall establish a Court of Session for every Sessions division, and appoint a Judge of such Court; and Clause (3) provides that the State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.

In the face of these clear provisions, it would be futile to contend that the District Magistrate, Tan-jore, could not be validly appointed Assistant Sessions Judge for the two Sessions divisions, namely, West Tanjore and East Tanjore.

3. The only other ground that was seriously urged before us was that one mentioned in ground No. 6, namely, the conferment of the powers of Assistant Sessions Judges on District Magistrates by the Madras Government for the express purpose of hearing appeals from II Class Magistrates is not in consonance with Article 233(1) of the Constitution of India and is a clear violation of the provisions of the Criminal Procedure Code.

It will be seen that, in the notification referred to above, the District Magistrates are not merely empowered to hear appeals of persons convicted on a trial held by Magistrates of the second or third class. No doubt, such power is also vested in them. But, what is important to note is that they are specifically appointed as Assistant Sessions Judges, so that the further conferment of powers to hear appeals would appear to be redundant in view of the new Section 408, Cr. P. C.

But then, the contention was that the appointment of District Magistrate as an Assistant Session^ Judge was invalid and was a clear evasion, if not alsoi a violation, of the provisions of the Constitution and the Criminal Procedure Code. It was contended that when the Legislature decided to take away the power to hear appeals from the District Magistrates and vest the same in the Sessions Judges and Assistant Sessions Judges, it would be a clear evasion of such legislative provision to re-invest the District Magistrates with those very powers by means of a notification.

But this argument ignores the fact that the notification does not merely empower the District Magistrates as such to hear the appeals; and if the notification had only done so, it would be clearly, void and contrary to the specific provisions of the Criminal Procedure Code. But, as we have already pointed out, what the notification does is to appoint the District Magistrate as an Assistant Sessions Judge with the power to hear appeals. We are therefore unable to see how that could be considered to be an evasion of the legislative intendment as expressed in the amended provisions.

4. Then it was contended that the appointment of the District Magistrates generally, as Assis-tant Sessions Judges, would violate the provisions of the Constitution. It is true that, by that notification, the District Magistrate is appointed as an Assistant Sessions Judge, not by name, but by his designation. We fail to see why the authority competent to make an appointment should not make it by designation, instead of referring to the officer by name.

That it is permissible is apparent from two de- cisions which were brought to our notice during the discussion, namely, Alaga Pillai v. Emperor, AIR 1924 Mad 256 (A), and In re, Shaik Silar, AIR 1941 Mad 681 (B). In fact, Section 15 of the General Clauses Act makes it clear that where by any Act or Regula- tion, a power to appoint any person to fill any office or execute any function is conferred, then, any such appointment may be made either by name or by virtue of office. That is exactly what has been done in the present case, namely, to appoint District Magistrates, by virtue of office, as Assistant Sessions Judges. In this connection, reference may also be made to Section 39, Cr. P. C., in regard to conferring powers under the Code.

"The State Government may, by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles". But the learned counsel for the petitioner drew our attention to Article 233 of the Constitution and contended that the appointment of District Judge -- which expression would include an Assistant Sessions Judge -- had to be made by the Governor only in consultation with the High Court exercising jurisdiction in relation to such State, and that, in cases where the appointment is made by designation, there could not be such consultation with the High Court, more especially with reference to the succeeding District Magistrates.

We are satisfied on the record that, before issuing the notification in question, the State Government consulted the High Court and it was only after the High Court expressed its concurrence that the Government proceeded to appoint the District Magistrates as Assistant Sessions Judges. The High Court gave its assent to that course not only with reference to the present incumbents or persons holding the post of District Magistrates on the date of the notification, but also in reference to all succeeding Magistrates as well. The fact was that only the Subordinate Judges were appointed as District Magistrates and as Assistant Sessions Judges.

That is to say, both those offices are held, so far as our State is concerned, by the same category of officers, namely the Subordinate Judges; and that being so, no difficulty was felt by the High Court in expressing its concurrence to appointing District Magistrates as Assistant Sessions Judges.

We are satisfied, by reference to the file resulting in G. O. Ms. 3617, that the Government issued that G. O. only after consultation with the High Court not only in regard to the then incumbents of the District Magistracy, but also in regard to the succeeding District Magistrates. We do not therefore agree with the contention that the notification in question appointing the District Magistrates generally by virtue of their office, as Assistant Sessions Judges, violated the provisions of Article 233 of the Constitution. Even with regard to the successors, we have no doubt that the notification is valid as it was issued after consultation with the High Court. It will also be seen that Section 18 of the General Clauses Act provides that it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations.

5. In the result, we hold that the notification in question is valid and that there is no substance in the contentions raised by the learned counsel for the petitioner. This revision is therefore dismissed.


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