RAJAGOPALA PRASAD Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner has filed this Revision Petition against the order made by the learned Sessions Judge, Mysore, in Mysore Criminal Appeal No. 77 of 1965 confirming the conviction and sentence passed by the IInd Munsiff and First Class Magistrate, Mysore, in C.C. No. 1146 of 1964.

(2.) The main question for decision is whether a Sessions Judge empowered under Section 17(4) of the Code of Criminal Procedure, to be hereinafter referred to as the Code, to dispose of urgent applications by a Sessions Judge of an adjoining Division gets power to hear and dispose of criminal cases pending on the file of the adjoining Sessions Division?

(3.) Briefly stated, the facts necessary for the determination of the above question are as follows: Sri A. Panchaksharaiah was working as Sessions Judge of Mysore District. He was to retire on 7.11.1965. The Registrar, High Court of Mysore, addressed a letter to Sri Panchaksharaiah which reads as follows: <FRM>JUDGEMENT_21_TLKAR0_1967Html1.htm</FRM> For the determination of the above question, the facts of the case are not necessary. (4) The answer to the question stated above hinges entirely upon the interpretation of Section 17(4) of the Code. Section 17(4) reads thus: The Sessions Judge may also when he himself is unavoidably absent or incapable of acting make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, if there be no Additional or Assistant Sessions Judge, by the Sessions Judge or Additional or Assistant Sessions Judge of the adjoining Sessions division and such Judge shall have jurisdiction to deal with any such application. The contention of the learned Advocate for the petitioner is that the learned Sessions Judge of Mandya could exercise powers under Section 17(4) of the Code which were conferred on him by the Reason Judge of Mysore under the proceedings dated 4/11/1965. It is further urged that the power conferred by the Sessions Judge of Mysore on the Sessions Judge of Mandya under Section 17(4) of the Code is confined only for the disposal of urgent applications on the file of the Sessions Judge of Mysore Division. It was contended that the learned Sessions Judge of Mandya had exceeded his powers in issuing proceedings to the effect that he would hear criminal oases pending on the file of the Sessions Judge, Mysore. It was also contended that the Sessions Judge of Mandya was not empowered under the law to hear and dispose of the criminal appeal in question. The powers conferred on him under Section 17(4) of the Code were limited only to hear and dispose of urgent applications and therefore the judgment delivered by him in Cr. A. No. 77/1965 is invalid in law as it is not an "urgent application." He further contended that it is not a case wherein the State Government exercised the powers under Section 9(4) of the Code and appointed the Sessions Judge of Mandya to sit and dispose of oases of the Sessions Court of Mysore Division. On the other hand, the learned State Prosecutor contended that the Sessions Judge of Mandya who was placed in charge of Sessions Division of Mysore was a person who was invested with powers of the Sessions Judge and therefore he was empowered to exercise the powers of the Sessions Judge and dispose of the criminal appeal in the Reasons Division of Mysore, While I find no merit in the contention put forward by the learned State Prosecutor, I see force in the contentions put forward on behalf of the petitioner. The conferment of power under Section 17(4) of the Code is limited for the disposal of any urgent application made to the Court. Hearing of criminal appeals pending on the file of the Sessions Judge, Mysore, is not a matter coming under the category of urgent applications. Therefore, the order of the Sessions Judge, Mandya, who was exercising powers under Section 17(4) of the Code cannot be deemed to be valid because there appears to be no authority under the law for him to make any such order under Section 17(4) of the Code. There was certainly no urgency about the matter which he has heard and disposed of. The learned Judge has clearly exceeded the powers conferred on him under Section 17(4) of the Code. The counsel for the State relied upon the decision in Queen Empress v. Fazl Azim, reported in (1895) ILR 17 All. 86, and contended that the irregularity committed by the Sessions Judge has not been shown to have occasioned failure of justice and therefore the irregularity is cohered by Section 531 of the Criminal P.C. and does not render the judgment a nullity. That is a case which does not fall within the ambit of Section 17(4) of the Code. The facts are also entirely different. Therefore, the above decision is of no assistance in this case. The learned State Prosecutor neatly relied upon the decision in Ayub Syed Hasan v. State of U.P., AIR 1962 All 132 wherein a temporary Sessions Judge who takes over the file of another temporary Sessions Judge in the same Sessions Division is to all intents and purposes a presiding officer of the Court of Session and, as such, exercises the powers and performs the duties of that Court. He can, therefore, make a complaint under Section 476, Criminal P.C., in respect of the offences falling under Section 195, Criminal P.C. that were committed in the Court of his predecessor. Even this decision is of little, assistance in this case. It is not a case dealing with the powers of a Sessions Judge who is empowered under Section 17(4) of the Code.