Thirumalaisami Asari vs Bakthavatsalam and another

This revision by P.W. 9, is directed against the order passed by the Chief Judicial Magistrate, Madurai in C.A. No. 52 of 1985 filed under Sec.

454 Cr.P.C. reversing the order passed by the Judicial Second Class Magistrate, Palani and directing the return of M.Os. 1 and 2 to first

respondent herein.

M.Os. 1 and 2 are two items of gold jewellery weighing 62 grams, which were involved in C.C. No. 542/82 on the file of the Judicial Second

Class Magistrate, Palani. The case had been instituted on a charge sheet filed by the police, the second respondent herein, on a complaint given by

the first respondent for an offence u/s 379 I.P.C., During the investigation, the M.Os. had been recovered by the police from the petitioner who

was examined as P.W. 9 during trial. The accused in the case had been acquitted on 19-12-1984 and by order dated 31-12-1984 the learned

Magistrate had directed return of M.Os. 1 and 2 to the petitioner herein. The first respondent filed C.A. No. 36/85 u/s 454 Cr.P.C. before the

Sessions Judge, Madurai, who transferred it to the Chief Judicial Magistrate, Madurai, who in turn took it on his file as C.A. No. 52/85. The

petitioner was not made a party in the above appeal. After hearing both the respondents who alone were parties in the appeal, the learned Chief

Judicial Magistrate allowed the appeal and directed M.Os. 1 and 2 to be returned to the first respondent. Challenging the above order, this

revision has been filed by P.W. 9.

Thiru Jagadeeswaran, learned counsel for the petitioner urged two contentions. According to the learned counsel the learned Sessions Judge

ought not to have transferred the appeal u/s 454 Cr.P.C. to the Chief Judicial Magistrate, since it was not in accordance with Section 381 Cr.P.C.

and consequently the Chief Judicial Magistrate had no jurisdiction to deal with the appeal and pass orders thereon. The matters therefore, had to

be remitted to the sessions Judge to be disposed of by him. The second contention of the learned counsel was that, the petitioner against whom an

adverse order has been passed in C.A. No. 52/85 was not made a party in that appeal and had not been heard, which was in violation of the

principles of natural justice as also the law laid down by the Supreme Court.

Thiru Dinakaran, learned counsel for the first respondent and the learned Public Prosecutor for the second respondent were also heard.

Both the contentions of the learned counsel for the petitioner have to be accepted. The initial order passed by the trial Court was u/s 452

Cr.P.C. and the appeal preferred by the first respondent was u/s 454 Cr.P.C. Section 381 would show that appeals are to be heard by the

Sessions or the Additional Sessions Judge and sub-section (2), enables an Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial

Magistrate, to hear such appeals as are made over to them by the Sessions Judge. The proviso to Section 381(1) Cr.P.C. indicates the nature of

appeals that could be heard by the Assistant Sessions Judge or the Chief Judicial Magistrate. According to the said provision they shall hear

appeals against convictions of trial held by a Magistrate of the Second Class. A reading of all these provisions would show that only appeals

included in the above proviso, namely arising against conviction on a trial held by a Magistrate of the Second Class, could be heard and disposed

of by an Assistant Sessions Judge or a Chief Judicial Magistrate. It is only these appeals that could be made over to them by the Sessions Judge.

An appeal u/s 454 Cr.P.C. is not an appeal against a conviction on a trial held by a Magistrate of the Second Class. Such an appeal, therefore,

cannot be made over by a Sessions Judge, either to the Assistant Sessions Judge or to the Chief Judicial Magistrate and neither the Assistant

Sessions Judge nor the Chief Judicial Magistrate would have jurisdiction to hear an appeal u/s 454 Cr.P.C. On this aspect I agree with the decision

relied on by the learned counsel for the petitioner in Srinivasan K. N. v. S.I. Pennalurpet and another, 1987 MLW Crl 95 where in a learned

Judge of this Court had taken the above view. The Chief Judicial Magistrate Madurai, therefore, had no jurisdiction to hear and dispose of C.A.

No. 52/85 filed u/s 454 Cr.P.C. His order, has to be set aside.

The order of the learned Chief Judicial Magistrate would show that the present petitioner was not made a party in the above appeal and he had

not been heard. The state alone had been impleaded as respondent and had been heard. It is necessary that before an adverse order is passed

against the party, he should be heard. It is not known why the first respondent did not choose to make the petitioner a party in the Criminal Appeal

particularly when in Criminal Miscellaneous Petition No. 2383/85 filed by him in this Court u/s 482 Cr.P.C. against the initial order passed by the

Judicial Second Class Magistrate, Palani, he had made the petitioner a party. Whatever that be, the Supreme Court in State Bank of India Vs.

Rajendra Kumar Singh and Others, set aside the order of the High Court, which had reversed the order of the Sessions Court passed u/s 517

(Sec. 454 of the present Code) without giving notice to the person to whom the property was directed to be delivered by the Sessions Court. The

Supreme Court observed that though the Criminal Procedure Code was silent and did not expressly require issue of any notice, there was in the

eye of the law, a necessary implication that the parties adversely affected should be heard before the Court made an order of return of the seized

property. The order passed by the learned Chief Judicial Magistrate without hearing the petitioner has to be struck down on this ground as well.

In the result, the revision is allowed, the order passed by the learned Chief Judicial Magistrate, Madurai in C.A. No. 52 of 1985 is set aside,

and the matter is sent to the Sessions Judge, Madurai, North at Dindigul to be dealt with as an appeal u/s 454 Cr.P.C. after giving notice to the

present petitioner as well.

Revision allowed.