Bholanath Ghosh vs The State

D.N. Das Gupta, J.—This Revisional petition is directed against the order of a learned Additional District Magistrate of Hooghly dated 19th February, 1965, reversing the order of the learned Sub-divisional Magistrate dated 2nd January, 1965, by which the learned Sub-divisional Magistrate accepted the cause shown by the surety in a matter u/s 514, Cr. P. Code. The Additional District Magistrate heard the appeal from the order of the Sub-divisional Magistrate and directed that the full amount of the penalty, namely. Rs. 2,000 was to be realised from the surety.

The matter was heard by Niyogi, J. sitting singly but he placed the matter before the Hon''ble the Chief Justice for making a reference to a larger Bench on the ground that the decision on the point of a Judge of this Court sitting singly was in conflict with the decision of a Division Bench of the Madhya Bharat High Court reported in Vallabhadas v. State of Madhya Bharat AIR 1955 NUC 2096. The matter has now come up before us.

Sitting singly I held that although an Additional District Magistrate might have been duly appointed u/s 10 (2), Cr. P. C. to be an Additional District Magistrate with all the powers of a District Magistrate under the Code, an Additional District Magistrate had no power to hear appeals u/s 515, Cr. P. Code: Prafulla Kumar Saha v. The State, Cr. Revn. No. 121 of 1963 (Cal) (unreported). It was held by the Division Bench of the Madhya Bharat High Court AIR 1955 NUC 2096 as follows:

"It is true that only the District Magistrate alone can entertain appeal u/s 515. But there is nothing to prevent the Additional District Magistrate on whom the powers are conferred u/s 10(2) from hearing an appeal u/s 515 when such appeal is transferred to him by the District Magistrate. This is an ordinary power of the District Magistrate conferred by the Criminal Procedure Code and he can certainly transfer the hearing of appeal u/s 515 to the Additional District Magistrate."

Now the appeal in the instant case before us was filed not in the Court of the District Magistrate but in the Court of the Additional District Magistrate. On the point of forum for filing the appeal there was no conflict between my decision sitting singly and the decision of the Division Bench of the Madhya Bharat High Court. I took the same view as the Madhya Bharat High Court did, viz., that the appeal was to be filed not in the Court of the Additional District Magistrate but in the Court of the District Magistrate. This revisional petition can be disposed of only on the short point that the appeal not having been filed in the right forum was not maintainable. Indeed Section 515 makes it clear that an appeal from an order passed u/s 514 of the Code of Criminal Procedure lies only to the District Magistrate. Section 515 lays down:

"All orders passed u/s 514 by any Magistrate other than a Presidency Magistrate or District Magistrate shall be appealable to the District Magistrate or if not so appealed may be revised by him."

Under Section 515 appeals from orders passed u/s 514 lie only to the District Magistrate and not to the Additional District Magistrate. u/s 514 orders may be passed by any Magistrate including an Additional District Magistrate and all orders passed u/s 514 by any such Magistrate (other than a Presidency Magistrate or a District Magistrate) will lie to the District Magistrate. Of course no appeal will lie to the District Magistrate from an order passed by the District Magistrate himself or by a Presidency Magistrate. In terms of Section 515 an appeal can be filed in the Court of the District Magistrate only & not in the Court of the Additional District Magistrate. It is the District Magistrate alone who can entertain an appeal and not Additional District Magistrate.

The learned Standing Counsel contends that any Additional District Magistrate who has been duly empowered u/s 10 (2) of the Criminal Procedure Code will have the same powers as the District Magistrate and, therefore, u/s 515 an appeal can be filed in the Court of the Additional District Magistrate also, and that "District Magistrate" includes the Additional District Magistrate. Now simply by powers being conferred on an Additional District Magistrate u/s 10 (2), powers of entertaining appeals u/s 515 are not conferred on him. u/s 515 it is only the District Magistrate who can entertain appeals and none else. An order may be passed u/s 514 by an Additional District Magistrate and an appeal from that order will lie to the District Magistrate and not to the Additional District Magistrate. No appeal can be filed before the Additional District Magistrate from his order just as no appeal can be filed before the District Magistrate from his order. Since in the instant case the appeal was filed not in the Court of the District Magistrate, but in the Court of the Additional District Magistrate, the appeal is not maintainable and the order of the learned Additional District Magistrate is without jurisdiction. Since this revisional petition can be disposed of only on this point, it is not necessary to consider any other point, although the learned Standing Counsel raised the point that at least an Additional District Magistrate has the power to hear an appeal though not to entertain an appeal. On the facts of this case it is not necessary to consider the point, whether an Additional District Magistrate has the power to hear an appeal which may be transferred to him by the District Magistrate. In the instant case the appeal is not an appeal which was transferred to the Additional District Magistrate by the District Magistrate for hearing.

The order of the learned Additional District Magistrate is, therefore, set aside and the Rule is made absolute.