Sabhapati Dubey Accused v. Ram Kissen Kumar Complainant Opposite Party.

1. This Rule was issued against the Deputy Commissioner of Sibsagar and the complainant opposite party in a certain criminal case to show cause why the order of the Additional Sessions Judge of the Assam Valley Districts, in Criminal Appeal No. 12 of 1934, dated 10th October 1934, setting aside under Section 520 of the Cr PC, an order of a first Class Magistrate of Golaghat, under S. 517 of the Code and restoring a certain elephant to the complainant opposite party, should not be set aside on the ground that the Additional Sessions Judge was not the Court of appeal, confirmation, reference or revision within the meaning of Section 520 of the Cr PC. S. 520 is in these terms:

Any Court of appeal, confirmation, reference or revision may direct any order under S. 517, S. 518 or S. 519 passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just.

2. Evidently the Court of appeal mentioned in the section must be a Court of appeal as contemplated by Ch. 31. There is nothing in terms of S. 520 justifying the view that the words “Court of appeal” in that section means only a Court to which either of the parties to the criminal case has appealed or could appeal: see 3 Cal 3791 and 7 Rang 3452.

3. The wording of the section rather indicates that the Court of appeal is any Court which has powers of appeal, that is any Court to which appeals ordinarily lie from the decision of the Magistrate by whom the case was tried: see 9 Mad 4483 and 56 Bom 3694. It is not disputed by the learned Advocate for the petitioner that the Court of Session is the Court of appeal in the present case. Under Section 9 of the Cr PC, the Local Government is empowered to establish a Court of Session for every Sessions division and to appoint a Judge of such a Court and Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in such Court and to direct at what place or places the Court of Session shall sit.

There is only one Court of Session in each sessional division, sitting at different places and manned by a number of Judges. The Court is the Court of Session. It is not accurate to refer to the “Court of the Sessions Judge” and the “Court of the Additional Sessions Judge” and so on, except colloquially: see 58 Cal 11175.

4. Therefore an Additional Sessions Judge is also a Judge of the Court of Session. Consequently the Additional Sessions Judge of the Assam Valley Districts sitting at the time at Jorhat was the Court of appeal in the present case within the meaning of Section 520 of the Cr PC. It may be pointed out here that when the petitioner appeared before the Additional Sessions Judge after he got notice about this case, he did not raise the question that the Additional Sessions Judge had no jurisdiction to entertain the appeal or that he was not authorized by the Sessions Judge to hear the appeal. Again the Court of revision within the meaning of S. 520 must be a Court of revision as contemplated by Ch. 82 of the Code. Under Section 535 of the Cr PC, the Sessions Judge can call for the record in the case. Under S. 436 he can order further enquiry. Under S. 438 he can refer the matter to the High Court after examination of the record. In 56 Bom 369, Beaumont, C.J, observed as follows:

The Sessions Court has no general power of making orders in revision. It can only under S. 435 enquire into the matters, before Subordinate Courts and if necessary refer to the High Court for orders under S. 438. But S. 520 seems to make it unnecessary for a subordinate Court of revision to adopt that course in matters within that section. If an application is made to the Sessions Court as the Court having powers of revision in respect of the trial Court in regard to orders relating to property made under S. 517, 518 or 519, then in my opinion the Sessions Court can itself make a proper order and need not refer the matter to the High Court.

5. In Chunbiya v. King-Emperor . 1935 PC 35 decided by their Lordships of the Judicial Committee on 6th December 1934, Lord Atkin has made the following observation:

The powers relating to appeals under Section 423 of the Cr PC, are given to the appellate Court and the appellate Court may include a Court subordinate to the High Court and the appellate Court as such has no power to enhance the sentence differing from the provision which was in the old Code of Criminal Procedure of 1872. On the other hand the powers of revision are given to the High Court alone and the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to his knowledge.

6. In view of the observations of the Judicial Committee it is difficult to hold that Sessions Judge or Additional Judge is a Court of revision within the meaning of S. 520. But as I have held that the Additional Judge is a Court of appeal; within the meaning of S. 520 of the Code, I discharge the rule.

R.M/R.K

7. Rule discharged.