EMPEROR Vs. L M MARINO

JUDGEMENT

(1.) THIS application raises an important point as to the jurisdiction and powers of the Sessions Judge of Aden under the Aden Civil and Criminal Justice Regulation VI of 1933.

(2.) THE facts may be very briefly stated. THEre was a collision" between two motor ears at the cross roads near the National Bank of India at Crater in Aden in consequence of which a passenger in one of the cars was fatally injured. THE drivers of the two cars were prosecuted for an offence under Section 304-A of the Indian Penal Code, and the First Class Magistrate at Aden convicted the driver of one car and fined him Rs. 500. He acquitted the other, who was accused No.2 and who is the applicant before Us. THEre were two revision applications to the Sessions Judge of Aden; one by the convicted accused and ode by the Public Prosecutor in the case of the Other accused who was acquitted. THE Sessions Judge confirmed the conviction of accused No, He set aside the acquittal of accused No.2 and sentenced him to a fine of Rs. 100 with imprisonment in default.

(3.) THE most important for this case is the third clause of Section 35, the only provision dealing directly with revision, which empowers the Sessions Judge to call for any proceedings of any Magistrate at any stage and to pass such orders thereon as he thinks fit. Prima facie this appears to give an unfettered discretion. Of course the powers cannot be supposed to be unlimited or purely arbitrary. It would be a judicial discretion to be exercised judicially. Obviously too the orders to be passed must be legal orders. THE Sessions Judge could not impose a sentence contrary to the Indian Penal Code or make any other order contrary to the law. THE question is whether, apart from such fundamental limitation, it can be said that the Sessions Judge's powers are limited, or defined. Section 26 of the Regulation, which defines the ordinary powers of the Sessions Judge, does not really assist us because it is subject to Section 35 THE same applies to Section 49 which saves the provisions of the Code except as otherwise provided in the Regulation. Section 35 itself does not suggest that the Sessions Judge's powers of revision are those of a Sessions Judge under the Code, rather the contrary. THE language used clearly indicates that he has more extensive powers, and learned counsel for the applicant has conceded that. It has been argued with some plausibility that the enacting authority could not have intended that the Sessions Judge should have wider powers in revision than those enjoyed by the High Court of Bombay under the Code. But it is clear, I think, that his powers are not actually defined by reference. to the power" of any other tribunal or by reference to any specific provision of the Code. It would be quite simple to say that the Sessions Judge should exercise the revisional powers of a High Court, but this is not done. Section 49 cannot be said to save the operation of Section 439 of the Code in the sense that it would make that section applicable per se to the Sessions Judge of Aden. It may be mentioned that Section 35 (3) of the Regulation closely follows the language of the Aden Civil and Criminal Justice Act II of 1864, Section 19 Under that Act these revisional powers were vested in the Resident who was himself the only appellate authority. THEre was no appeal from his decision in any criminal case, but he could under Section 30 of the Act refer a point of law for the opinion of the High Court. THE powers of the Resident are now transferred to the Sessions Judge and provision is made for appeals to the High-'court from his decisions in Section 36 of the Regulation. THE old Act also contained no provision for appeals from acquittals such as is now contained in Section 38 (2 ). This new provision is strongly relied on by the learned counsel for the applicant