K M KUNJUKORU CHINNAPPAN Vs. NEELAKANTAN CHETTIAR

JUDGEMENT

(1.) The petition is filed under S.482 of the Code of Criminal Procedure for vacating the order of dismissal of Crl. R. P. No. 4 of 1979 by the Additional Sessions Judge, Parur. The revision petition was filed against an order dated 14-11-1978 passed by the Sub Divisional Magistrate, Cochin, calling upon the counter petitioner before him to cut and remove certain arecanut trees which were causing obstruction to a pathway. The petitioner received the order on 25-11-1978. He filed a revision petition before the Court of Session, Ernakulam, on 27-2-1979. The revision petition was made over to the Additional Sessions Judge, Parur, for disposal. When it was taken up for disposal it was noted that the petition was barred by limitation, there being a delay of three days. The petitioner, thereupon, filed Crl. M. P. No. 32 of 1979, for condoning the delay. The learned Additional Sessions Judge held, apparently following the decision in Ramakrishna Chettiar v. State of Kerala, 1977 KLT 153 , that under S.400 of the Code of Criminal Procedure that Court has power only to dispose of cases properly filed before the Court of Session and transferred for disposal. On that ground the revision petition was dismissed. It is this order of dismissal that is sought to be vacated.

(2.) On behalf of the petitioner it is argued that the decision in Ramakrishna Chettiar v. State of Kerala, 1977 KLT 153, has no application in the instant case and that even assuming that the decision has application the learned Additional Sessions Judge should have referred the revision petition back to the Sessions Court for disposal of the application for condoning delay.

(3.) The decision, Ramakrishna Chettiar v. State, of Kerala, 1977 KLT 153, was in relation to the dismissal of an appeal by an Assistant Sessions Judge on the ground of bar of limitation. Under S.374(3) an appeal against the conviction from the Magistrate lies to the Court of Session. S.381 mentions how an appeal to the Court of Session should be heard and under sub-s.(2) of that section an Assistant Sessions Judge is to hear only such appeals as the Sessions Judge by general or special order makes over to him or as the High Court by special order directs him to hear. Interpreting the above sections it was held by me that the Court of Session is to transfer and the Assistant Sessions Judge is to hear only appeals properly filed and that in cases where the appeal is filed beyond the period of limitation it is for the Court of Session to decide whether the appeal should be received after condoning delay. That is because S.381 deals with only how an appeal to Court of Session is heard. But the subject matter here is not an appeal but a revision petition filed against an order of the Sub Divisional Magistrate. S.400 provides that the Additional Sessions Judge shall have and may exercise all powers of the Sessions Judge under Chap.30 in respect of any case that may be transferred to him by or under any general or special order of the Sessions Judge. Evidently, this includes the power to dispose of an application for condoning the delay in a case transferred to him by the Sessions Judge, even if such an application is filed after the transfer.