In Re: Palanisamy Chettiar

Ramaswami Gounder, J.—This revision is posted before this Bench as it was considered that grounds 6 and 7 taken in the Memorandum of

the Criminal Revision Petition raised important questions. The petitioner was convicted by the Sub-Magistrate of Kumbakonam on a charge u/s

323, I. P. C., and sentenced to a fine of Rs. 15. There was an appeal as against that conviction and sentence, heard by the District Magistrate,

Kumbakonam, as Assistant Sessions Judge, and dismissed by him.

This revision is filed against that order of dismissal, confirming the conviction and sentence pass-ed by the Sub-Magistrate. Under the old Section

407, CR. P. C., any person convicted on a trial held by any Magistrate, II or III class, was allowed to appeal to the District Magistrate; but, by

the amending Act XXVI of 1955, which came into force from 1-1-1956, that section was deleted and the old Section 408 amended, providing

that any person convicted on a trial by a District Magistrate or any other Magistrate may appeal to the Court of Session; and Section 409 as

amended provides that an appeal to the Court of Session shall be heard by the Sessions fudge or by an Additional Sessions Judge or an Assistant

Sessions Judge, provided that no such appeal shall be heard by an As-sistant Sessions Judge unless the appeal is of a per-son convicted on a trial

held by any Magistrate of second or third class.

It will therefore be seen that according to the amended provisions, the appeal against the conviction by Magistrates of the second or third class lay

to the Court of Session, and such appeals could be beard either by the Sessions Judge or by an Assistant Sessions Judge. The result was that the

appeals which were originally heard by the District Magistrate are now required to be heard by the Sessions Judge or the Assistant Sessions

Judge.

But, our State Government thought that notwithstanding the amendment taking away from the District Magistrates the power to hear appeals,

those Magistrates should nevertheless be appointed as Assistant Sessions Judges and empowered to hear appeals under Sections 408 and 409 as

amended.

They accordingly published a notification in the Fort St. George Gazette, G. O. Ms. 3617 (Home) dated 19-12-1953, appointing with eilect from

1-1-1956 the District Magistrates of the various districts mentioned in column No. 1 as Assistant Sessions Judges to exercise jurisdiction in the

Court of Session in the Sessions divisions noted in the corresponding entry in column No. 2 and holding sittings at the places specified in the

corresponding entries in Column No. 3, and further directing that they shall hear appeals of persons convicted on a trial held by any Magistrate of

second or third class exercising jurisdiction within the respective Sessions divisions. _

It will be seen that items 11 and 12 of the table appended to that notification mentioned the District Magistrate, Tanjore, at Kumbakonam, in

regard to Sessions divisions, West Tanjore and East Tanjore, with places of sitting at Kumbakonam and Negapa-tam respectively. It was in

pursuance of this noti-fication that, in the present case, the District Magistrate, Kumhakonam, heard the appeal of the petitioner against his

conviction by the Sub-Magistrate, Kumhakonam, and dismissed the appeal. In the first place, it was contended that the appointment of a single

Assistant Sessions Judge for two Sessions divisions was illegal (ground No. 7).

But this contention has utterly no force and completely ignores the specific provisions of Section 9, Cr. P. C. Under Clause (1) of that section, the

State Government shall establish a Court of Session for every Sessions division, and appoint a Judge of such Court; and Clause (3) provides that

the State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such

Courts.

In the face of these clear provisions, it would be futile to contend that the District Magistrate, Tan-jore, could not be validly appointed Assistant

Sessions Judge for the two Sessions divisions, namely, West Tanjore and East Tanjore.

The only other ground that was seriously urged before us was that one mentioned in ground No. 6, namely, the conferment of the powers of

Assistant Sessions Judges on District Magistrates by the Madras Government for the express purpose of hearing appeals from II Class

Magistrates is not in consonance with Article 233(1) of the Constitution of India and is a clear violation of the provisions of the Criminal Procedure

Code.

It will be seen that, in the notification referred to above, the District Magistrates are not merely empowered to hear appeals of persons convicted

on a trial held by Magistrates of the second or third class. No doubt, such power is also vested in them. But, what is important to note is that they

are specifically appointed as Assistant Sessions Judges, so that the further conferment of powers to hear appeals would appear to be redundant in

view of the new Section 408, Cr. P. C.

But then, the contention was that the appointment of District Magistrate as an Assistant Session^ Judge was invalid and was a clear evasion, if not

alsoi a violation, of the provisions of the Constitution and the Criminal Procedure Code. It was contended that when the Legislature decided to

take away the power to hear appeals from the District Magistrates and vest the same in the Sessions Judges and Assistant Sessions Judges, it

would be a clear evasion of such legislative provision to re-invest the District Magistrates with those very powers by means of a notification.

But this argument ignores the fact that the notification does not merely empower the District Magistrates as such to hear the appeals; and if the

notification had only done so, it would be clearly, void and contrary to the specific provisions of the Criminal Procedure Code. But, as we have

already pointed out, what the notification does is to appoint the District Magistrate as an Assistant Sessions Judge with the power to hear appeals.

We are therefore unable to see how that could be considered to be an evasion of the legislative intendment as expressed in the amended

provisions.

Then it was contended that the appointment of the District Magistrates generally, as Assis-tant Sessions Judges, would violate the provisions of

the Constitution. It is true that, by that notification, the District Magistrate is appointed as an Assistant Sessions Judge, not by name, but by his

designation. We fail to see why the authority competent to make an appointment should not make it by designation, instead of referring to the

officer by name.

That it is permissible is apparent from two de- cisions which were brought to our notice during the discussion, namely, Alaga Pillai v. Emperor,

AIR 1924 Mad 256 (A), and In Re: Shaik Silar, . In fact, Section 15 of the General Clauses Act makes it clear that where by any Act or Regula-

tion, a power to appoint any person to fill any office or execute any function is conferred, then, any such appointment may be made either by name

or by virtue of office. That is exactly what has been done in the present case, namely, to appoint District Magistrates, by virtue of office, as

Assistant Sessions Judges. In this connection, reference may also be made to Section 39, Cr. P. C., in regard to conferring powers under the

Code.

The State Government may, by order, empower persons specially by name or in virtue of their office or classes of officials generally by their

official titles"". But the learned counsel for the petitioner drew our attention to Article 233 of the Constitution and contended that the appointment of

District Judge -- which expression would include an Assistant Sessions Judge -- had to be made by the Governor only in consultation with the

High Court exercising jurisdiction in relation to such State, and that, in cases where the appointment is made by designation, there could not be

such consultation with the High Court, more especially with reference to the succeeding District Magistrates.

We are satisfied on the record that, before issuing the notification in question, the State Government consulted the High Court and it was only after

the High Court expressed its concurrence that the Government proceeded to appoint the District Magistrates as Assistant Sessions Judges. The

High Court gave its assent to that course not only with reference to the present incumbents or persons holding the post of District Magistrates on

the date of the notification, but also in reference to all succeeding Magistrates as well. The fact was that only the Subordinate Judges were

appointed as District Magistrates and as Assistant Sessions Judges.

That is to say, both those offices are held, so far as our State is concerned, by the same category of officers, namely the Subordinate Judges; and

that being so, no difficulty was felt by the High Court in expressing its concurrence to appointing District Magistrates as Assistant Sessions Judges.

We are satisfied, by reference to the file resulting in G. O. Ms. 3617, that the Government issued that G. O. only after consultation with the High

Court not only in regard to the then incumbents of the District Magistracy, but also in regard to the succeeding District Magistrates. We do not

therefore agree with the contention that the notification in question appointing the District Magistrates generally by virtue of their office, as Assistant

Sessions Judges, violated the provisions of Article 233 of the Constitution. Even with regard to the successors, we have no doubt that the

notification is valid as it was issued after consultation with the High Court. It will also be seen that Section 18 of the General Clauses Act provides

that it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual

succession, to express its relation to the functionaries or corporations.

In the result, we hold that the notification in question is valid and that there is no substance in the contentions raised by the learned counsel for

the petitioner. This revision is therefore dismissed.