P.V. MASAND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application raises an important point of law as to whether an appeal lies from an order passed by the District Magistrate under Section 476 of the Criminal Procedure Code to the Court of Sessions under Section 476B of the said Code, as in force in the State of Maharashtra.

(2.) [His Lordship after setting out the facts of the case, proceeded.]

(3.) MR . Kanade, the learned Assistant Government Pleader, has sought to support the order passed by the Additional Sessions Judge on the ground that whereas under Section 476B read with Section 195(5) of the Criminal Procedure Code, the right of appeal is conferred on the parties affected by the order under Section 476 of the Criminal Procedure Code only when ordinarily an appeal lies from the sentence passed by the District Magistrate and as no sentence of punishment can be passed by the District Magistrate under the provisions of the Criminal Procedure Code now in force, the petitioners had no right of appeal against the order passed by the District Magistrate. Mr. Bhatia who appeared for Gajadhar, respondent No. 2, supported the contention raised by Mr. Kanade and further argued that the order was passed by the District Magistrate sometime before June 30, 1964, and the petitioners came to know of the order in 1964 and hence the appeal presented by them in the Court of Session on October 11, 1966 was hopelessly time -barred. Mr. Bhatia further submits that the affidavit filed by petitioner No. 2 in the 'Court of Session does No. t disclose sufficient material on the basis of which the Court could excuse the delay in filing the appeal and he is entitled to raise the point of limitation, as that was not considered by the Second Additional Sessions Judge after his client received notice of the appeal. I do not wish to deal with the contention regarding limitation at this stage, because it is open to respondent No. 2 to raise the point of limitation before the Court of Session. The order against which this revision application is filed is the order returning the appeal filed by the petitioner for presentation to the proper Court. The merits of the appeal are not at all considered by the Sessions Judge.