DEVASSIA Vs. STATE OF KERALA
LAWS(KER)-1962-8-30
HIGH COURT OF KERALA
Decided on August 10,1962

DEVASSIA Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

P. Govinda Menon, J. - (1.) CR. R.P. No. 302 of 1961 is filed by the accused in Summary Trial Case 1787 of 1960. He was prosecuted by the Changanacherry Municipality for offences under Ss. 334 and 359 of the Travancore District Municipalities Act - Act XXIII of 1116 - for contravention of the provisions of S. 261 and the bye-laws framed thereunder for having stored in building No. 348 tiles, bricks and surki without taking out a licence. The Second Class Bench of Magistrates, Changanacherry who tried the case convicted him of the offence charged. CR. R.P. No. 310 of 1961 is filed by the accused in Summary Trial Case 1786 of 1960 who had been convicted for a like offence for having stocked for sale, coffee husk and tea without obtaining a licence. CR. R.P. Nos. 382 and 383 of 1961 are filed by one P.K. Hassanbava Rowther a Tea Merchant in Kottayam who was prosecuted and convicted for an offence under rule 31 (2) read with rule 38 of Schedule II and S. 360 of the Travancore District Municipalities Act for failure to pay profession tax. In all these petitions the common question of law that arises is whether the revision petitions filed by them are maintainable.
(2.) CLAUSE 5 of S. 439 Cr. P.C., reads as follows: "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed". So under this sub-clause, the High Court is precluded from exercising the powers of revision at the instance of the accused, who had a right of appeal, but did not exercise it, What we have to see, is whether in these cases the accused had really a right of appeal, because if they had the right and did not avail of the remedy, petitions in revision cannot be entertained. S. 414 Cr. P.C. says that there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under S. 260 passes a sentence of fine not exceeding two hundred rupees only. There is no dispute that the accused were tried summarily, but were they tried and convicted by a Bench of Magistrates invested with the powers of the Magistrate of the First Class as contemplated under S. 26 Cr. P. C.? If the conviction is only by a Second Class Bench of Magistrates appeal would certainly lie, The learned counsel appearing for the revision petitioners contends that Sri K. Easwaran Potti, Chairman of the Bench is a person invested with the powers of a First Class Magistrate and he has taken part in the hearing of these cases, though in S.T. No. 1786 and S.T. No. 1787 Sri Potti has not signed the judgment and therefore the Bench must be deemed to be a First Class Bench under S. 15, clause (2) of the Criminal Procedure Code.
(3.) THE question is whether S. 15 (2) would apply in these cases. S. 15 Cr. P.C. reads as follows:- "(1) THE State Government may direct any two or moire Magistrates in any place outside the presidency towns to sit together as a Bench, and may by order invest such bench with any of the powers conferred or conferrable by or under this Code on a Magistrate of the first, second or third class and direct it to exercise such powers in such cases, or, such classes of cases only, and within such local limits, as the State Government thinks fit. (2) Except as otherwise provided by any order under this section every such Bench shall have the powers conferred by this Code on a Magistrate of the highest class to which any one of its members, who is present taking part in the proceedings as a member of the bench, belongs, and as far as practicable shall, for the purposes of this Code, be deemed to be a Magistrate of such class." Under S. 12 Cr. P.C., the State Government is given powers to appoint Magistrate of the first, second or third class in any district outside the presidency towns. Under S. 14 the State Government is given power to confer upon any person, all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class and such Magistrates would be called Special Magistrates. Then under S. 15 the State Government is given power to direct any two or more Magistrates to sit together as a Bench and to invest such Bench with any of the powers conferred under the Code on a Magistrate of the first, second or third class and then by sub-section (2) it is provided that except as otherwise provided by the order, every such Bench shall have the powers conferred by the Code on a Magistrate of the highest class to which any one of its members who is present taking part belongs.;


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