MANUAL Vs. REVENUE INSPECTOR
LAWS(KER)-1968-6-4
HIGH COURT OF KERALA
Decided on June 07,1968

MANUAL Appellant
VERSUS
REVENUE INSPECTOR Respondents

JUDGEMENT

- (1.) The accused in the case was prosecuted for non payment of property tax by the Revenue Inspector, Palai Municipality. He was acquitted by the Magistrate on a preliminary objection raised by him. The Revenue Inspector preferred appeals against the orders of acquittal under S.417 Cr.P.C., to this court, and a learned Single Judge allowed the appeals by a common order, set aside the acquittals, and remitted the cases for de novo trial.
(2.) The accused has filed these appeals against the order of the learned Single Judge under S.5(ii) of the Kerala High Court Act. The office has sent up the appeal memos with a report stating whether the appeals are competent under S.5(ii), and for passing appropriate orders. S.5(ii) of the Act is as follows: "An appeal shall lie to a Bench of two Judges from -- x x x x (ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; x x x x x." S.5 of the Act before it was amended by Act 6 of 1966 read: "An appeal shall lie to a Bench of two Judges from a judgment or order of a Singh Judge in the exercise of original jurisdiction. An appeal shall lie to a Bench of two Judges from a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, where the Judge who passed the judgment declares that the case is a fit one for appeal." Learned counsel for the accused submitted that a judgment by a Single Judge in the exercise of his appellate jurisdiction in respect of an order made in the exercise of original jurisdiction by a subordinate court is appealable under S.5(ii) whether the order was passed in a civil or criminal case. From the context it would appear that the word 'order' in sub-s.(ii) of S.5 was intended to include only an order passed in a suit or civil proceeding. The collocation of the words 'decree or order' lends support to this construction. It may be recalled that S.5(ii) was enacted to remove an anomaly While there was provision in S.5 of the Kerala High Court Act, 1958 before it was amended for an appeal to a Bench of two Judges from the judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a subordinate court in the exercise of appellate jurisdiction, there was no provision for such an appeal in respect of a decree or order made by a subordinate court in the exercise of original jurisdiction. It was to remove this anomaly that the section was amended and S.5(ii) enacted. It is permissible to look into the reason for making the amendment to understand the meaning of the word 'order' in the sub-section, in Bengal Immunity Co. v. State of Bihar ( AIR 1955 SC 661 ) the rule in Heydon's case that for the sure and true interpretation of statute it is permissible to look into what remedy the Parliament has resolved and appointed to cure the disease, and the true reason of the remedy, was approved and followed. We think that the accused has no right of appeal under S.5(ii) to a Division Bench. We therefore hold that there is no provision under which the appeals can be entertained. The appeals are therefore rejected.;


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