KANHAIYALAL PATWARI Vs. CORPORATION OF CALCUTTA
LAWS(CAL)-1976-12-29
HIGH COURT OF CALCUTTA
Decided on December 24,1976

Kanhaiyalal Patwari Appellant
VERSUS
CORPORATION OF CALCUTTA Respondents


Referred Judgements :-

GARIKAPATI VEERAYA VS. N SUBBIAH CHOUDHRY [REFERRED TO]


JUDGEMENT

A.K. Sen, J. - (1.)On April 20, 1974, the Petitioner in this Rule was convicted by a learned Presidency Magistrate (since renamed as Metropolitan Magistrate), Calcutta, under Sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, read with Sec. 7 thereof and was sentenced to suffer rigorous imprisonment for 6 months and pay a fine of Rs. 1,000 in default to suffer further imprisonment for 6 months. It is, however, not in dispute that the cognizance of the offence was taken under the provisions of the old Code of Criminal Procedure. 1898 and the Petitioner was so convicted on a trial which had started in the year 1972 and was pending on April 1, 1974, the day the new Code of Criminal Procedure, 1973, (hereinafter referred to as the new Code) came into effect. On May 3, 1974, the Petitioner preferred an appeal against the said order of conviction and sentence to the City Sessions Court at Calcutta under Sec. 374 of the new Code. By an order dated July 31, 1975, the learned Judge, City Sessions Court, returned the memo, of appeal to the Petitioner on the view that the said Court had not the jurisdiction to entertain the appeal on the material date. The learned Judge referred to Sec. 6 of the City Sessions Court Act, 1953, which was as follows:
6. City Sessions Court not to have jurisdiction in certain matters.

(1) The City Sessions Court shall not have any jurisdiction on appeal, reference or revision.

(2) ... ... ... ...

(3) All matters in respect of which the City Sessions Court has no jurisdiction, shall be tried, dealt with or disposed of as if this Act had not been passed.

Though this Sec. was repealed on July 17, 1975, by an amendment of the City Sessions Court -Act, 1953, such amendment not being retrospective, the learned Judge took the view that on the day the appeal was filed, the City Sessions Court not having the necessary jurisdiction to entertain an appeal, the appeal as preferred by the Petitioner to the said Court is not maintainable.

(2.)The aforesaid order of the learned Judge, City Sessions Court, is the subject -matter of challenge in the above Rule. The Petitioner took out the above Rule on the opposite party to show cause why the order dated July 31, 1975, passed by the learned Judge, City Sessions Court, should not be set aside and why the said Court should not be directed to entertain the appeal and dispose of the same on merits. By way of abundant caution, the Petitioner has also presented the memorandum of appeal, which had been returned to him, in this Court simultaneously so that if this Court holds that this Court is the proper forum for the appeal, the appeal may be entertained. Thus, an important question arises for us to consider in this Rule as to what is the proper forum for the Petitioner's appeal in this case.
(3.)It appears to us that a great deal of ambiguity and uncertainty as to the proper forum for appeals against appealable orders passed by the Presidency Magistrates has cropped up because the existing laws were not assimilated to the scheme of the legislative changes brought about by the new Code. The City Sessions Court Act, 1953, was enacted at a time when for the Presidency town (Since renamed as Metropolitan area) there was no Court of Sessions under the old Code and no powers of entertaining appeal, reference or revision were vested in any such Court by the Said Code. This scheme was, however, totally changed by the new Code which constituted the Metropolitan area to be a Sessions Division and made it obligatory to establish a Court of Sessions therefor investing all the powers of a Court of Sessions, including the powers of appeal, reference or revision on such a Court. Unfortunately, however, the provisions of the City Sessions Courts Act, 1953, were not assimilated in time to the new scheme by appropriate amendment thereof. Sec. 6 of the City Sessions Courts Act imposed a bar on the City Sessions Court from having any jurisdiction on appeal, reference or revision just contrary to such a jurisdiction being invested by the new Code. But even then we feel a great amount of hesitation in accepting the view taken by the learned Judge, City Sessions Court, because once that view is accepted persons convicted by a Metropolitan Magistrate on a trial under the new Code prior to July 17, 1975, would be denied the right of appeal (in appealable cases) notwithstanding the provisions of Sec. 374 of the new Code by merely denying them a forum for such appeals. The old scheme stands amended. On the provisions of Sec. 7(4) of the new Code read with Sec. 5 of the City Sessions Courts Act, 1953, the Metropolitan area (Presidency town of Calcutta) is a Sessions Division for the purposes of the Code and the City Sessions Court is the Court of Sessions for such a Sessions Division. When Sec. 374(3) provides that a person convicted on a trial held by a Metropolitan Magistrate will have a right of appeal to the Court of Sessions of the Metropolitan area to be the Court of appeal. Notwithstanding the provisions of Sec. 6 of the City Sessions Courts Act, 1953, a question may pertinently be raised as to whether such provisions of the new Code should or should not be construed to be specific provisions to the contrary contemplated by Sec. 5 of the new Code which would override Sec. 6 of the City Sessions Courts Act, 1953. We propose not to express any final opinion on such a question in the present case, inasmuch as this case can be disposed of on another point and the conclusion of the learned Judge of the City Sessions Court can be upheld for reasons other than those given by him.
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