LAWS(PVC)-1948-1-72

SHYAM LAL Vs. KING

Decided On January 05, 1948
SHYAM LAL Appellant
V/S
KING Respondents

JUDGEMENT

(1.) The petitioner was convicted under Rule 81(4), Defence of India rules for having contravened Clause 18(2), Bihar Cotton Cloth and Yarn Control Order 194 (5) and sentenced to three months rigorous imprisonment as well as to a fine of Rs. 300 in default to undergo rigorous imprisonment for a further period of three weeks,

(2.) On the facts found, it appears that the petitioner had boarded a bus of the Sidique Motor Transport Service at Dumka on 16 July 1946 with two bundles, one tied with a blanket and the other tied with a darri. These two bundles were placed on the roof of the bus. One Babu Harendra Prasad Jha, Market Inspector, having suspected that a large quantity of cloth was being carried, searched the bus in the presence of several witnesses and recovered from the said two bundles the following articles of cloth: 11 pairs of saris, 9 pieces of saris, 2 pairs of saris, 1 mark in than 33 yds in length; another mark in than also 38 yds. in length. The necessary sanction of the Provincial Government having been accorded, the petitioner was prosecuted and convicted as already stated.

(3.) Mr. Ghosal has raised three points of law and wished to enter into the facts. On questions of fact, it was not possible to go behind the findings and we must proceed on those findings which establish that the petitioner was the one who placed those two bundles on the bus and that they had been in his possession. If an offence in law has been committed, then, on the facts the responsibility is that of the petitioner. As to the questions of law raised, Mr. Ghosal urged in the first instance that the Sessions Judge who heard the appeal had no jurisdiction to hear it as the proper forum for appeal was the District Magistrate. He urged that on the date the petitioner was placed on his trial, he had a vested right to appeal to the District Magistrate and the proper forum for appeal was not that of the Sessions Judge. For his argument he relied upon the observations of Sir Pazl Ali J. in Banwari Gope V/s. Emperor A.I.R. 1943 Pat. 18 and the Privy Council decision in Colonial Sugar Refinery Co. Ltd. V/s. Irving 1905 A.C. 369. It is to be remembered that on the date when the petitioner was convicted Regulation I of 1947 enacted by the Governor of Bihar was in force. By this Regulation, it was provided that a person convicted on a trial held by the District Magistrate, the Additional District Magistrate or any other Magistrate of the first class could appeal to the Court of Session. The petitioner filed his appeal in the Court of Session. There can be no doubt that the Sessions Judge had jurisdiction to entertain the appeal under the law as it existed then. Mr. Ghosal's argument that the- petitioner had a vested right to appeal to the District Magistrate would not in any way remove the obstacle in his way, namely, that his client had himself chosen to appeal to a Court in whom jurisdiction was vested to hear the appeal. If Mr. Ghosal's client had in fact filed his appeal before the District Magistrate and objection had been taken by the Crown that that officer could not hear the appeal, it may well be that the argument of Mr. Ghosal might have prevailed having regard to the observations of Lord Macnaghten in the Privy Council case referred to. It seems to me that neither the observations of Sir Fazl Ali in Banwari Gope V/s. Emperor A.I.R. 1943 Pat. 18, nor the observations of Lord Macnaghten establish that in the circumstances of this ease the Sessions Judge had no jurisdiction to hear the appeal.