STATE OF KERALA Vs. SUBRAMANIAM

JUDGEMENT

(1.) A learned Judge of this Court doubted the correctness of the decision of this court in Gopalan v. State of Kerala1 and hence referred these cases to a larger Bench. In the above case, Bhat J. speaking for the Court has held that a revision will lie, to a Court of Session from the decision of a Chief. Judicial Magistrate or an Assistant Sessions Judge in an appeal from a conviction of the Magistrate of the Second Class filed before the Court of Session but made over to him by the Court of Session. It is seen from the reference order that the Supreme Court decision in Roopchand v. State of Punjab2 was not brought to the notice of the Bench which decided Gopalan's case and that was also one of the reasons for making the reference.

(2.) In Roopchands case what the Supreme Court has held is that the State Government which delegated their powers under section 41 (1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 to an Officer cannot thereafter interfere with the order passed by him, in exercise of the revisional powers they have under section 42 of the Act. The Supreme Court held: In, this case the power is created by Section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills J. said in Huth v. Clarke, (1890) 25 Q.B.D. 391 that the word delegate means little more than an agent; An agent of course exercises no powers of his own but, only the powers of his principal. Therefore, an order passed by an officer on delegation to him under Section 4 1(1) of the power of the Government under Section 21 (4), is for the purposes of the Act, an order of the Government. If it were not so and it were to be held, that the order had been made by the officer himself and was not an order of the Government-and of course it had to be one or the other-then we would, have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. (Para 11) It is clear from section 381 of the Code of Criminal Procedure 1973 that no question of delegation arises in a case where a court of session makes over an appeal to a Chief Judicial Magistrate or an Assistant Sessions Judge as both have powers to hear and dispose of the appeal. So, the above Supreme Court decision is not applicable to the facts of the cases.

(3.) In this case, the appeal against the conviction and sentence of the Magistrate of the Second Class was filed before the court of session. The court of session made over the same to the Chief Judicial Magistrate who dismissed the appeal and confirmed the conviction and sentence. The accused challenged that decision in revision before the court of session and that revision was disposed of by the Additional Sessions Judge, acquitting the accused. It is the above acquittal that has been challenged in these cases.