K.N. Sreenivasan vs S.I. Pennalurpet and Kuppuswamy

David Annoussamy, J.—When this revision was taken up first by this Court, it was not represented that the order which was sought to be revised was an order passed by the Chief Judicial Magistrate, Chingleput, as an appellate authority. Therefore, it was ordered that the matter be taken up by the party as an appeal before the Sessions Court. Now, it is represented that the order, which is sought to be revised is an order passed by the Chief Judicial Magistrate not as a Court of First instance but as an appellate authority against the order passed by the Judicial Second Class Magistrate, Thiruvellore, the appeal having been filed before the Sessions Court and having been transferred by the Sessions Judge to the file of the Chief Judicial Magistrate, Chingleput. Therefore, it is to be ascertained whether the order of the Chief Judicial Magistrate, Chingleput, in C.M.P. 1926 of 1982 in C.A. No. 56 of 1982 is proper.

The first question which arises for consideration is whether the Chief Judicial Magistrate had any jurisdiction to deal with such a matter The order of the Judicial Second Class Magistrate, Thiruvellore, is in respect of a petition for return of property filed under S. 452, Code of Criminal Procedure. Against such an order, as per S. 454, Crl.P.C, the aggrieved party may appeal to the Court to which appeals ordinarily lie from conviction from the Court which passed it. As per S. 374(3), Crl.P.C., a person aggrieved by a conviction by the Judicial Second Class Magistrate may appeal to the Court of Session. The Court of Session is, therefore, the normal authority to deal with the present appeal. It appears that the Court of Sessions has transferred the appeal filed before it to the Chief Judicial Magistrate, Chingleput, under S. 381 of Crl.P.C., For a matter being transferred under S. 381, Crl.P.C. to the Chief Judicial Magistrate''s file, the latter should have jurisdiction to deal therewith. A reading of S. 381, Crl.P.C. does not appear to confer on the Chief Judicial Magistrate the jurisdiction to deal with an appeal under S 454, Cr.P.C. The scheme of the section is as follows: Normally appeal lies to the Sessions Court. Sub-S. (1) to S. 381 makes it clear that such an appeal may be heard either by the Sessions Judge himself or by the Additional Sessions Judge. The Proviso to sub S. (1) to S. 381 further empowers the Assistant Sessions Judge or the Chief Judicial Magistrate to deal with an appeal against conviction on a trial held by a Magistrate of the second class. This being by way of proviso, it is to be construed strictly and no appeal other than those arising against conviction on a trial held by a Magistrate of the Second Class can be heard by a Chief Judicial Magistrate. Sub-S (2) indicates how the matters can be taken on file by the various authorities indicated in sub S. (1) including the proviso thereunder. Since, normally appeals are filed before the Sessions Judge, appeal can be taken on file by the other authorities only upon the transfer by the Sessions Judge. Thus, it is clear that the first part of S. 381, Cr.P.C. deals with the jurisdiction and the second part deals with the taking on file by the various authorities other than the Sessions Judge.

An appeal filed before the Sessions Judge comes first to his file and for being taken on file by others an order by the Sessions Judge is necessary. That is the purpose of sub-S. (2) to S. 381, Crl.P.C. It is the same scheme which prevails also in S. 400 , Crl.P.C. in respect of the revisional powers of the Sessions Court. The first part of the sentence empowers the Additional Sessions Judge to deal with a revision petition and the second part of the sentence says how he will get seized of the matter. The Additional Sessions Judge can deal with only matters which have been transferred to him by the Sessions Judge. Though he is vested with powers to deal with revision petition he cannot claim that he can take on his file whatever matter he wants to deal with.

It was brought to my notice that the words, Subject to'' found at the beginning of sub-S. 381, Crl.P.C. would indicate that sub-S. (1) is subject to sub-S. (2) and it was contended that all the persons mentioned in sub-S. (2) would have jurisdiction to deal with all appeals brought before the Sessions Court. It is not so. The words, "Subject to" at the beginning of sub-S. (l) is only a restriction to the power of the Additional Sessions Judge upon whom jurisdiction is conferred as per that sub-section, in order to make clear that he can exercise his jurisdiction provided the matter is transferred to him as contemplated in the sub-S.(2). If sub S (2) is to be understood as giving jurisdiction to all the judicial officers mentioned as therein in respect of all matters, the sub-S. (1) would become entirely redundant. As explained earlier, the scheme of the section is clear. Sub S. (1) indicates the jurisdiction of the various officers and sub-S. 2 shows how matters would come to their respective files.

Turning now to the present case, it is found that the appeal filed under S. 454, Crl.P.C. against au order passed under S. 452, Crl.P.C. has been wrongly transmitted by the Sessions Judge to the Chief Judicial Magistrate. The order now sought to be revised is clearly an order passed without jurisdiction by the Chief Judicial Magistrate, Chingleput, and the same has to be set aside.

6 In the result, the order of the Chief Judicial Magistrate, Chingleput, is set aside and the matter is sent to the Sessions Judge, Chingleput, to deal with the same as an appeal under S. 454, Crl.P.C.