MATLU MANJHI AND THREE OTHERS Vs. THE STATE

JUDGEMENT

(1.) This is a reference under Sec. 438 of the Code of Criminal Procedure by the learned Sessions Judge of Purnea recommending that the orders passed by the learned Third Assistant Sessions Judge of Purnea dated the 16th of August, 1967 upholding the order of conviction of Matlu Manjhi and three others order Sec. 188 of the Indian Penal Code and sentencing them each to undergo simple imprisonment for one month passed by the learned Munsif -Magistrate, Second Class, Purnea, and dismissing the appeal of the accused persons should be quashed as a whole. The facts lie in a brief compass. One Baijnath Prasad, the Karpardaz of a lady named Zubaida Khatoon filed a petition before the Block Development Officer, East Block, Purnea, under Sec. 69 of the Bihar Tenancy Act against the aforesaid accused persons for division of the produce in respect of a holding for which rent was taken by division of the produce. The petition was registered as case no. 2 of 1964, having been filed on the 27th of October, 1964. On the 16th of November, 1964 the Block Development Officer, who was exercising the powers of the Collector, appointed the Mukhia of Kochaili Dagarua Gram Panchayat for getting the crops of the land concerned harvested and divided between the aforesaid Zubaida Khatoon and the accused persons and the case was directed to be put up on 1 -12 -1964 for further orders. Meanwhile the accused persons, however, appeared before the Block Development Officer and filed a petition that the crops were not ripe for harvesting and prayed for the stay of harvesting of the crops of the land in question. The Mukhia, however, meanwhile acting as an officer appointed under Sec. 69(1) of the Bihar Tenancy Act had issued a notice upon the accused persons prohibiting them from going and removing the crops grown upon the land in question. When in disobedience of the said notice the accused persons had cut away and removed the crops standing on the land, the Mukhia submitted a report on the 23rd of December, 1964 informing the Block Development Officer about it, whereupon the Block Development Officer issued notice to the accused persons to show cause as to why they should not be prosecuted under Sec. 188 of the Penal Code. That notice was however returned unserved. The Block Development Officer then filed a written complaint on the 25th of June, 1965 against the accused persons under Sec. 188 of the Penal Code in the court of the Sub -divisional Magistrate, Sadar, Purnea, who took cognizance of the offence and the case was ultimately transferred for trial and disposal to the court of a Munsif -Magistrate at Purnea. The trial court found the prosecution case true and convicted the accused persons under Sec. 188 of the Penal Code and sentenced each of them to undergo simple imprisonment for one month as aforesaid. The accused persons, thereupon, preferred an appeal under Sec. 408 of the Code of Criminal Procedure before the Sessions Court. The appeal was transferred for disposal to the court of the learned Third Assistant Sessions Judge, Purnea, who, as mentioned already, upheld the conviction and sentence and dismissed the appeal. Aggrieved by the dismissal of their appeal, the accused persons, instead of coming to this Court directly under Sec. 439 of the Code, approached the learned Sessions Judge, Purnea, who called for the records of the proceedings in exercise of his powers under Sec. 435 of the Code from the court of the Assistant Sessions Judge and has now submitted a report to this Court under Sec. 438 of the Code recommending to quash the appellate orders passed by the learned Assistant Sessions Judge.

(2.) When this case was first listed for hearing before the learned Single Judge, he was of the opinion that besides the merits of the orders passed by the learned Assistant Sessions Judge, two questions arose for decision in this case, namely,

(3.) There can be no doubt that once an appeal is preferred under Sec. 408 of the Code of Criminal Procedure before the Sessions Court as was filed in the instant case, the appeal so filed can be transferred for disposal by the Sessions Judge under Sub -section (2) of Sec. 409 either to the Additional Sessions Judge or to the Assistant Sessions Judge. In the instant case the learned Sessions Judge of Purnea, acting under the powers conferred on him under Sec. 409(2) of the Code had in fact transferred the appeal for disposal to the learned Third Assistant Sessions Judge. The question which arises for determination is whether once the Assistant Sessions Judge has disposed of the appeal after the same has been transferred to him by the Sessions Judge acting under Sec. 409(2) of the Code, can the proceedings of that appeal be called for by the Sessions Judge under Sec. 435 of the Code, as if they were proceedings of the inferior Criminal Court? In our opinion the question must be answered in the affirmative.