MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioner was the first accused in C. C. No. 422 of 1978 on the file of the Chief Judicial Magistrate, Ernakulam. There were three other accused also. Charge-sheet was filed against all of them alleging commission of offences punishable Under Sections 454, 380 and 34, IPC The petitioner was arrested on 14-9-1978, and since his arrest he was in judicial custody. The case was posted to 12-101978. On that day the accused were taken to Court. The petitioner and his co-accused pleaded guilty to the charge. On this plea, the trial Court ordered the revision petitioner to be detained in Borstal School, Cannanore, for a period of three years by its judgment dated 9-111978 stating that the report of the Probation Officer was not in his favour. Under a mistaken impression that no appeal lay against this order, the petitioner filed Cr, R. P. No. 510 of 1979 before this Court, along with Cri. M. P. No. 1582 of 1979, to condone the delay. It was later realised that a regular appeal would lie since this Court had held so in 1978 Ker LT 779 : 1980 Cri LJ NOC 39. this Court by its order dated 18-12-1979 directed the revision petition to be returned for presentation before the proper Court. The revision was thereafter represented as an appeal before the Sessions Court, Ernakulam, on 19-12-1979 and it was numbered as Criminal Appeal No. 145 of 1979. The learned Sessions Judge dismissed the application to condone the delay and consequently dismissed the appeal as barred by limitation by his judgment dated 22-12-1979. It is against the orders dismissing the the appeal and dismissing the application to condone delay that this revision is filed.

(2.) WHEN the revision came up for hearing, I felt a doubt whether the revision at the instance of the petitioner was entertainable because of the bar contained in Section 401 (4) Cr. P. C. The learned Counsel for the petitioner, Mr. Mooppan, made a valiant attempt to relieve me of my doubt with reference to the following authorities :

(3.) IN State of Kerala v. N. Damodaran 1974 Ker LT 281 : 1974 Cri LJ 1107 a Division Bench of this Court had to consider the maintainability of a revision under the following circumstances. In a prosecution Under Section 7 (1) and Section 16 (1) of the Prevention of Food Adulteration Act, 1954, against two accused persons, one was let off Under Section 3 of the probation of Offenders Act after admonition and the other Under Section 4 of the Act. No appeal was filed against the said orders by the State. An appeal could be filed Under Section 11 (2) of the Probation of Offenders Act. The case came before this Court in revision at the instance of the State. An objection was taken against the maintainability of the revision in so far as the State in not having filed an appeal, which it could do, the revision could not sustain due to the bar Under Section 439 (5) Cr. P. C. as it then stood, corresponding to Section 401 (4, Cr. P. C this Court held that the objection was well founded and found that the revision was not maintainable. However, this Court observed that for an offence Under Section 16 (1) of the Prevention of Food Adulteration Act, which carried with it the maximum term of imprisonment of six years, application of Section 3 of the Probation of Offenders Act was clearly illegal. It also found that the release of the other accused on probation of good conduct under S- 4 of the Act without giving sufficient reasons could not be justified. this Court then considered the question whether it could exercise its powers Under Section 439, despite the fact that the party who could have filed an appeal, had not filed the appeal. this Court exercised its revisional jurisdiction, holding that it was wide enough to be exercised when facts and circumstances justifying its exercise were brought to its notice. It was further observed that exercise of the revisional jurisdiction was not only exercise of a right but was discharge of a duty. So holding, the orders were' set aside and the case was remitted to the trial Magistrate for disposal in accordance with law.