STATE Vs. RAMPO

JUDGEMENT

(1.) This is an application by the State for revision of an order passed by an Assistant Sessions Judge on 16-4-1959 adjourning the hearing of a criminal appeal filed by the opposite parties against their conviction by a Magistrate for the offences of Sections 147 and 323, I. P. C. This application must be dismissed on two grounds, one a technical ground and the other of lack of merits. The technical ground is that the State should have filed an application for revision of the impugned order in the Court of the Sessions Judge and not come here direct. It is the well known practice of this Court not to entertain an application for revision unless an application for revision was filed before the Sessions Judge (or the District Magistrate) and was rejected by him. The Sessions Judge had jurisdiction to consider the impugned order of the learned Assistant Sessions Judge and to refer the case to this Court if he considered that the order was invalid or improper and deserved to be set aside. The State Government not having approached the Sessions Judge should not ordinarily be heard; there is no justification for making an exception in their favour.

(2.) I would have been content with disposing of the application on the technical ground but since it involves an important question of principle and since I have heard arguments on merits I deal with the merits also.

(3.) The appeal was filed by the opposite parties and on 12-3-1959 the learned Assistant Sessions Judge fixed 16-4-1959 for its hearing and gave notice of the date to the opposite parties counsel and to the District Magistrate on 5-4-1959. When the appeal was called out for hearing on 16-4-1959 the opposite parties' counsel was present and on behalf of the State, a panel lawyer, Sri Gaya Prasad, appeared holding the brief of the District Government counsel and prayed for an adjournment of the appeal on the ground that he had received the brief from the District Government counsel in the morning that very day and had not been able to study it and be ready for arguments. The learned Assistant Sessions Judge noticed that the District Magistrate had ample notice of the date fixed for the bearing of the appeal, recollected that counsel appearing for the State frequently were not prepared and asked for adjournments, pointed out that there was no improvement in the matter in spite of his having brought it to the notice of the District Magistrate and that the unpreparedness on the part of the State counsel resulted in adjournments giving rise to complaints from the side of appellants and ordered that the appeal would be adjourned to 8-5-1959 on payment by the State of costs amounting to Rs. 25/- to counsel of the opposite parties. No protest was made against the order imposing the costs by Sri Gaya Prasad; he did not refuse to pay the costs or to accept the adjournment on payment of the costs and did not say that he was prepared to go on with the appeal that very day, It seems that he acquiesced in the order with the result that the appeal stood adjourned. On the next day he appeared before the learned Assistant Sessions Judge and questioned the legality of the order imposing the costs but the learned Assistant Sessions Judge refused to modify his order saying that it had been passed not under Section 344, Cr. P. C. but in exercise of his own inherent powers. Thereafter the instant application was filed by the State.