PALANISAMY CHETTIAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(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.