Chhotekhan and another vs State of Madhya Pradesh

G.L. Oza, J.—This revision petition has been filed by the petitioners against the judgment passed by the Additional Sessions Judge, Rajgarh, rejecting the appeal filed by the petitioner-appellants, dated 6-2-1978.

The present petitioners were prosecuted for offences under sections 147, 148, 447, 323/149, Indian Penal Code alleged to have been committed on 7-3-1969. The incident is alleged to have happened at village Mehari, police station Khujner, Tehsil Sarangpur. As the Court of the Judicial Magistrate, First Class, Biora had jurisdiction to try the cases arising out of the jurisdiction of Khujner police station the case was tried by the Judicial Magistrate, First Class, Biora when by his judgment dated 8-9-1977 he convicted the petitioners u/s 323, Indian Penal Code and sentenced each of them to two months'' R.I. Against this judgment they preferred an appeal to the Sessions Court at Rajgarh and the learned Additional Sessions Judge, Rajgarh who heard the appeal finally rejected the appeal by the impugned order saying that as this offence arose at a place which was within the Sarangpur Tehsil and as Sarangpur Tehsil by notification in the gazette dated 18-2-1977 has been transferred to the jurisdiction of the Sessions Division at Shajapur, the learned Additional Sessions Judge sitting at Rajgarh will have no jurisdiction and therefore he rejected the appeal.

Learned counsel appearing for the petitioners contended that the Additional Sessions Judge, even if he came to the conclusion that he had no jurisdiction to hear and decide this appeal, could not reject the appeal and maintain the conviction. The only course open to the learned Additional Sessions Judge was either to return the appeal to be presented to a competent Court or send it to the Court of Sessions Judge, Shajapur. He also contended that although the place of offence which is alleged to be a place within the Sarangpur Tahsil, by the notification dated 18-2-1977 has now been brought within the jurisdiction of the Sessions Division at Shajapur, but the case was rightly presented in the Court of Judicial Magistrate, First Class, Biora as on the date of the incident the Court of Judicial Magistrate, Biora had jurisdiction to entertain this case; and according to learned counsel even after the issue of this notification dated 18 2-1977 there is nothing to indicate that the portion of the Sarangpur Tehsil which fell within the jurisdiction of Khujner Police Station has been withdrawn from the jurisdiction of the Biora Magistrate. He therefore contended that as far as the Magistrate Court is concerned, the Judicial Magistrate Biora had jurisdiction and he decided this case which fell within his jurisdiction by the judgment dated 8-9-1977. It was therefore contended that in view of section 374 of the Code of Criminal Procedure the Additional Sessions Judge at Rajgarh had jurisdiction to hear the appeal from the judgment of the Court of Judicial Magistrate, First Class, Biora. Consequently, the learned Additional Sessions Judge refused to exercise jurisdiction vested in him by rejecting the appeal filed by the petitioners.

Learned counsel appearing for State frankly conceded that he is not in a position to support the judgment of the Additional Sessions Judge rejecting the appeal. According to learned counsel even if the learned Judge came to the conclusion that he had no jurisdiction he could not have thrown out the appeal but should have returned it to be presented to the proper Court. It is also not disputed by learned counsel for State that the Court of Judicial Magistrate, First Class had jurisdiction to try the case as the offence arose out of a place falling within the jurisdiction of Police Station Khujner. He however contended that because Sarangpur Tehsil now falls after 18 2-1977 within the Sessions Division at Shajapur and as this offence arose out of a place within the Sarangpur Tehsil, the Court of Additional Sessions Judge at Rajgarh had no jurisdiction to hear this appeal.

It is not disputed that the Magistrate, First Class, Biora continued to exercise jurisdiction over the area which fell within the jurisdiction of Police Station Khujner even after the notification on 18-2-1977. Apart from it, there is no controversy at all that on the date on which the incident took place the Magistrate First Class at Biora had jurisdiction to try this offence. The learned Magistrate, Biora disposed of the case by convicting the two petitioners by his judgment dated 8.-9-1977. On this date the notification had already been published and Sarangpur Tehsil had been transferred from the Rajgarh Sessions Division to the Shajapur Sessions Division. But the learned Additional Sessions Judge at Rajgarh who was exercising appellate jurisdiction u/s 374 of the Code of Criminal Procedure had still jurisdiction to hear appeal from cases disposed of by Judicial Magistrate, First Class, Biora. This has been the view in Valis Ambu Poduval v. Emperor ILR 30 Mad. 136, wherein it was held

Section 408, Criminal Procedure Code, referring to appeals from First Class Magistrates, merely states that the appeal lies to the Court of Sessions without any further explanatory words.

Section 435 however, which deals with the powers of revision of Sessions Courts, enacts that the Sessions Judge may call for and examine the records of any inferior Criminal Court "situate within the local limits of his jurisdiction. The word "situate" means fixed or located; when applied to a Court it must be taken to refer to the place where the Court ordinarily sits. In the absence of any indication to the contrary in the Criminal Procedure Code, the principle thus laid down in regard to the analogous powers of revision u/s 435, should be followed in the case of appeals also. We hold therefore that the appeals should have been received by the Sessions Court of South Malabar, and direct that they be now received by that Court and dealt with according to law.

It is clear that in absence of any specific provision with regard to appeals the analogous powers of revision were considered. A similar question arose with regard to a revision petition and the Madhya Bharat High Court, as it then was, in Rahim v. Abdul Rahiman and others ILR 1952 MB 319 held:

The power to entertain a Revision application against an order passed by an inferior Criminal Court is given to the Sessions Judge exercising jurisdiction over the area where such inferior Criminal Court is situate. The jurisdiction to entertain a Revision application is determined by reference to the situation of the Court by which the order sought to be revised was passed. It is not determined with reference to the place where the offence is committed. Accordingly in this case, even though the offence was alleged to have been committed in the Railway area at Ujjain, the order sought to be revised was passed by the Railway Magistrate, Mhow. In view of the provisions of section 435, Criminal Procedure Code it is the Sessions Judge of Indore and not the Sessions Judge of Ujjain who has the authority to entertain a Revision application against that order.

It is therefore clear that when the case was decided by the Judicial Magistrate First Class Biora, the Additional Sessions Judge, Rajgarh had jurisdiction to hear the appeal. Apparently therefore, the learned Additional Sessions Judge was not right in saving that he had no jurisdiction to hear the appeal. The case was heard and decided by the Court of Magistrate First Class Biora and it is not in dispute that the headquarters of the Court of the Magistrate First Class Biora falls within the jurisdiction of the Additional Sessions Judge Rajgarh. Apparently therefore, the learned Additional Sessions Judge Rajgarh was not right in rejecting the appeal.

The learned Additional Sessions Judge was also not right in rejecting the appeal even if his view about jurisdiction was correct as apparently, if he felt that he could not hear and dispose of the appeal, the only course open to him was to send the appeal to the Sessions Court at Shajapur or to return it to the appellant for being presented to a proper Court. The appeal, the learned counsel for petitioners states, was entertained after motion hearing and the sentence was suspended. In an appeal against conviction the powers of the appellate Court have been provided in section 386, Criminal Procedure Code. Clause (b) of this section provides:

386......(b) in an appeal from a conviction--reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court of committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

Apparently therefore, there is nothing in the provisions contained in this section which permits the learned Court below to reject the appeal as has been done in the present case.

The revision petition is therefore allowed. The order passed by the Additional Sessions Judge rejecting the appeal dated 6-2-1978 is set aside and the appeal preferred by the petitioners is sent back to the Court of Sessions Judge Rajgarh with a direction that the appeal be heard and decided in accordance with law expeditiously.