DAULAT RAM ASTHANA Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an order of the Second Additional Sessions Judge of Gorakhpur purporting to act as the Sessions Judge of Gorakhpur, whereby he transferred a criminal appeal filed by one Mr. Daulat Ram Asthana from the file of the First Additional Sessions Judge of Gorakhpur sitting at Basti to the file of the Sessions Judge.

(2.) Mr. Daulat Ram Asthana was charged before a Subdivisional Magistrate of the First Class, Mr. Ahmad Hasan, under Secs.12 and 13, Printing Press and Registration of Books Act (Act 25 of 1860). It appears that the press had been under the control of the District Board itself, and the Chairman of that Board had in due course made the proper declaration, as required by the Act. The District Board however thought it would be more convenient that the press should be in the charge of the Education Committee, and the press was put in the charge of the Education Committee who in turn asked Mr. Asthana, an advocate practising at Basti, and also a member of the District Board and Education Committee, to take charge of the press. The Chairman of the District Board, for some reason or other not disclosed, thought it his duty to draw the attention of the District Magistrate to the fact that the District Board had delegated its authority over the press to the Education Committee, and went so far as to suggest that the declaration given by himself as Chairman would not now be operative. It is difficult to understand the reason of such a communication from the Chairman to the District Magistrate, and one can only speculate; but the District Magistrate made a complaint concerning Mr. Asthana for not filing a declaration. The case was sent for trial to the Sub- divisional Magistrate, Mr. Ahmad Hasan, and after trial Mr. Asthana was convicted and sentenced in all to six months simple imprisonment and a fine of Rs. 1,000. Mr. Asthana filed an appeal in the Court of the Additional Sessions Judge of Basti, and for some reason or other, which reason again is not apparent, this transfer was made by the Second Additional Sessions Judge at Gorakhpur, of the appeal from the file of the Additional Sessions Judge at Basti to the file of the Sessions Judge.

(3.) Mr. Iqbal Ahmad, on behalf of the applicant, contends that the order was made without any jurisdiction, and without any notice, to him and that it is ultra vires. I am satisfied that the contention of counsel for the applicant is sound. I can find nothing in the Criminal Procedure Code which gives jurisdiction to the Sessions Judge him self to transfer an appeal from the file of an Additional Sessions Judge to his own file, and even supposing a Sessions Judge had such jurisdiction, counsel who appears for the Crown cannot point out any provision in the Criminal Procedure Code by which an Additional Sessions Judge can issue such an order to another Judge of equal jurisdiction to himself. On this latter point it is suggested that authority is given under Section 17 (4), Criminal P. C, to a Sessions Judge, when he himself is unavoidably absent or incapable of acting to make provision for the disposal of any urgent application ay an Additional or an Assistant Sessions Judge. That is the only provision of the Criminal Procedure Code to which I am referred for the proposition that an Additional Sessions Judge can transfer oases from the file of a brother Additional Sessions Judge to that of the Sessions Judge. It is admitted by counsel for the Crown that there was no application in this case at all. An application within the meaning of Section 17 (4) must be an application which is recognized by law, that is, a document properly stamped. There was not even an oral application in Court. In fact it is one of the peculiarities of this case that no one appears to know how this matter came to the attention of Mr. Ziaul Hasain at all. At any rate, it is clear there was neither an application in the proper sense of the word nor an oral application by counsel in Court. There certainly was no urgency about it. So it is perfectly clear that Section 17 (4) cannot give jurisdiction in this matter to the Second Additional Sessions Judge who passed the order.