The conferment of power under Section 17(4) of the Code is limited for the disposal of any urgent application made to the Court. Hearing of criminal appeals pending on the file of the Sessions Judge, Mysore, is not a matter coming under the category of urgent applications. Therefore, the order of the Sessions Judge, Mandya, who was exercising powers under Section 17(4) of the Code cannot be deemed to be valid because there appears to be no authority under the law for him to make any such order under Section 17(4) of the Code. There was certainly no urgency about the matter which he has heard and disposed of. The learned Judge has clearly exceeded the powers conferred on him under Section 17(4) of the Code.Further, the action of the Sessions Judge of Mandya in hearing the criminal appeal in question and delivering the judgment is invalid in law. The judgment delivered by the learned Sessions Judge of Mandya in the instant case is, therefore, not sustainable in law.
2. The main question for decision is whether a Sessions Judge empowered under Section 17(4) of the Code of Criminal Procedure, to be hereinafter referred to as the Code, to dispose of urgent applications by a Sessions Judge of an adjoining Division gets power to hear and dispose of criminal cases pending on the file of the adjoining Sessions Division?
3. Briefly stated, the facts necessary for the determination of the above question are as follows:
Sri A. Panchaksharaiah was working as Sessions Judge of Mysore District. He was to retire on 7.11.1965. The Registrar, High Court of Mysore, addressed a letter to Sri Panchaksharaiah which reads as follows:
Sub : Handing over charge on attaining
the age of superannuation.
I am directed to request you kindly to band over charge on the afternoon of 7.11.1965 to the Civil Judge, Mysore, on Civil Side, and to make necessary arrangement for disposal of argent matters on the Criminal side, under Section 17(4) of the Coda of Criminal Procedure, by empowering the Sessions Judge, Mandya.
In pursuance of this direction by the High Court, the Sessions Judge of Mysore empowered the Sessions Judge of Mandya to act under Section 17(4) of the Code. The Proceedings read thus:
PROCEEDINGS OF THE SESSIONS JUDGE
MYSORE DISTRICT, MYSORE.
READ: High Court letter No. R.0.C. 1829/65-C.B. dated 2.11.1965, directing Sri. A. Panchakshariah B.A., (Hons.,) LL. B., Sessions Judge, Mysore to hand over charge on the afternoon of 7.11.1965. Criminal Order No. 5870-5882 dated 4.11.1965.
The Sessions Judge, Mandya is hereby empowered Under Section 17(4) of the Code of Criminal Procedure for disposal of urgent matters on the Criminal side of this District, as desired by the Honourable High Court in the above said letter, till further direction is received from the Honourable High Court.
Sd/- A. Panohaktharaiah,
Sessions Judge,
Mysore.
After the receipt of the above proceedings, Sri R. Nagaraj, who was the Sessions Judge of Mandya at that time issued the following proceedings:
PROCEEDINGS OF THE SESSIONS JUDGE
AT MANDYA.
READ :(1) High Court letter R.0.C. No. 1829/85 C.B. dated 2.11.1965, directing the Sessions Judge, Mysore to make in-charge arrangements for the disposal of urgent Criminal matters etc.
(2) Proceedings No. Crl. No. 5870-5882, dated 4.11.1965 of the Sessions Judge, Mysore empowering the Sessions Judge, Mandya, to dispose of urgent Criminal matters of Mysore District.
CRIMINAL ORDER No. 77 DT. 8.11.1965.
The Sessions Judge, Mandya, will be holding Court at Mysore, from 10.11.1965 to 14.11.1965 (inclusive) and will hear Criminal Cases pending on the file of the Sessions Judge, Mysore.
Sd/- Sessions Judge,
Mandya,
As per the above notification, Sri R. Nagaraj camped at Mysore and presided over the Sessions Court as Mysore. In the instant case, I. A. No. I was filed on 5.11.1965 for return of the driving license, lorry permit and house tax receipt which were in the case Sled. There is a note in the order sheet on 5.11.1965 to the effect that no such documents are found in the lower Court records. The order passed by Sri Panchaksharaiah, the then Sessions Judge, was to the following effect : "Bring up on the hearing date." The hearing date had been fixed on 29.10.1965 and the case was posted to 12.11.1965. On 12.11.1965 Sri Nagaraj presided over the Court and he passed the following order:
G.M.S. does not press I.A-I which is rejected. Arguments heard. By consent of learned Counsel for accused and learned P.P. I shall pronounce judgment at 11 A.M. on 14.11.1966 which is a Sunday, 13th is a Holiday.
Sd/- R. NAGAEAJ
12.11.65.
On 14.11.1965 be has passed the following order:
Judgment pronounced dismissing the appeal.
Sd/- R. NAGARAJ,
I/c. Sessions Judge,
14.11.1865.
For the determination of the above question, the facts of the case are not necessary.
(4) The answer to the question stated above hinges entirely upon the interpretation of Section 17(4) of the Code. Section 17(4) reads thus:
The Sessions Judge may also when he himself is unavoidably absent or incapable of acting make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, if there be no Additional or Assistant Sessions Judge, by the Sessions Judge or Additional or Assistant Sessions Judge of the adjoining Sessions division and such Judge shall have jurisdiction to deal with any such application.
The contention of the learned Advocate for the petitioner is that the learned Sessions Judge of Mandya could exercise powers under Section 17(4) of the Code which were conferred on him by the Reason Judge of Mysore under the proceedings dated 4.11.1965. It is further urged that the power conferred by the Sessions Judge of Mysore on the Sessions Judge of Mandya under Section 17(4) of the Code is confined only for the disposal of urgent applications on the file of the Sessions Judge of Mysore Division. It was contended that the learned Sessions Judge of Mandya had exceeded his powers in issuing proceedings to the effect that he would hear criminal oases pending on the file of the Sessions Judge, Mysore. It was also contended that the Sessions Judge of Mandya was not empowered under the law to hear and dispose of the criminal appeal in question. The powers conferred on him under Section 17(4) of the Code were limited only to hear and dispose of urgent applications and therefore the judgment delivered by him in Cr. A. No. 77/1965 is invalid in law as it is not an "urgent application." He further contended that it is not a case wherein the State Government exercised the powers under Section 9(4) of the Code and appointed the Sessions Judge of Mandya to sit and dispose of oases of the Sessions Court of Mysore Division. On the other hand, the learned State Prosecutor contended that the Sessions Judge of Mandya who was placed in charge of Sessions Division of Mysore was a person who was invested with powers of the Sessions Judge and therefore he was empowered to exercise the powers of the Sessions Judge and dispose of the criminal appeal in the Reasons Division of Mysore, While I find no merit in the contention put forward by the learned State Prosecutor, I see force in the contentions put forward on behalf of the petitioner.
The conferment of power under Section 17(4) of the Code is limited for the disposal of any urgent application made to the Court. Hearing of criminal appeals pending on the file of the Sessions Judge, Mysore, is not a matter coming under the category of urgent applications. Therefore, the order of the Sessions Judge, Mandya, who was exercising powers under Section 17(4) of the Code cannot be deemed to be valid because there appears to be no authority under the law for him to make any such order under Section 17(4) of the Code. There was certainly no urgency about the matter which he has heard and disposed of. The learned Judge has clearly exceeded the powers conferred on him under Section 17(4) of the Code. The counsel for the State relied upon the decision in Queen Empress v. Fazl Azim, reported in (1895) ILR 17 All. 86, and contended that the irregularity committed by the Sessions Judge has not been shown to have occasioned failure of justice and therefore the irregularity is cohered by Section 531 of the Criminal P.C. and does not render the judgment a nullity. That is a case which does not fall within the ambit of Section 17(4) of the Code. The facts are also entirely different. Therefore, the above decision is of no assistance in this case. The learned State Prosecutor neatly relied upon the decision in Ayub Syed Hasan v. State of U.P. wherein a temporary Sessions Judge who takes over the file of another temporary Sessions Judge in the same Sessions Division is to all intents and purposes a presiding officer of the Court of Session and, as such, exercises the powers and performs the duties of that Court. He can, therefore, make a complaint under Section 476, Criminal P.C., in respect of the offences falling under Section 195, Criminal P.C. that were committed in the Court of his predecessor. Even this decision is of little, assistance in this case. It is not a case dealing with the powers of a Sessions Judge who is empowered under Section 17(4) of the Code.
5. In Maung Ba Maung v. Emperor AIR 1980 Rang 335 it is laid down that the Code of Criminal Procedure strictly limits the powers of an Additional Sessions Judge to such as are conferred upon him directly by the Local Government or by the Sessions Judge of the division in which he exercises power.
6. Section 17 of the Code enables the Sessions Judge to make provision for the disposal of any urgent application by an Additional Judge when the Sessions Judge is unavoidably absent or in-capable of acting. When the provisions of Section 17(4) strictly limits the power of the Sessions Judge of Mandya to hear and dispose of urgent applications, the learned Sessions Judge of Mandya was not within his limits when he issued the proceeding dated 8.11.1965 to the effect that he would hear criminal cases pending on the file of the Sessions Judge, Mysore, and also he was not well within his limits in camping at Mysore and hearing and disposing of the criminal appeal in question. Powers conferred under Section 17(4) of the Code authorized the Sessions Judge of Mandya to deal with J.A. No. 1 filed in the case and dispose it of. The learned Judge should have stopped at that stage. But he his gone beyond the powers conferred under Section 17(4) of the Code in hearing the arguments and pronouncing the judgment in the criminal appeal. In doing be, the learned Sessions Judge of Mandya has exceeded the powers conferred on him under Section 17(4) of the Code.
7. There is another question which arises in, this case. That question is whether a retiring Sessions Judge of a Division could exercise the powers under Section 17(4) of the Code and empower the Sessions Judge of an adjoining Division to dispose of urgent applications. Whether the retirement of a Sessions Judge would amount to unavoidable absence or incapable of acting is a matter which requires consideration. Undoubtedly, retirement of a Sessions Judge cannot amount to unavoidable absence. Further, a Sessions Judge who empowers a Sessions Judge of another adjoining Division under Section 17(4) of the Code must continue to be the Sessions Judge of that Division and he is unavoidably absent or incapable of acting. In the instant case, from 7.11.1965, Sri Panchakaharaiah ceased to be the Sessions Judge of Mysore Division by reason of his retirement. Hence he could not have exercised the powers under Section 17(4) of the Code and empower the Sessions Judge of Mandya to exercise powers as required under Section 17(4) of the Code, Such a power can only be conferred by the State Government under Section 9(4) of the Code. So, the proceedings issued Sri Panchaksharaiah on 4.11.1965 is also without any legal basis. Therefore, in my opinion, the proceeding issued by the Sessions Judge of Mysore empowering the Sessions Judge of Mandya under Section 17(4) of the Code for disposal of urgent applications on the criminal side of that Division is illegal. Further, the action of the Sessions Judge of Mandya in hearing the criminal appeal in question and delivering the judgment is invalid in law. The judgment delivered by the learned Sessions Judge of Mandya in the instant case is, therefore, not sustainable in law.
8. For the reasons stated above, the Revision Petition is allowed. The Judgment passed by the learned Sessions Judge of Mandya in Cr.A. No. 77/1965 is hereby set aside. The Sessions Judge of Mysore Division is directed to take the appeal on his file and dispose of the same in accordance with law.
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Karnataka High Court
Rajagopala Prasad vs State Of Mysore on 3 February, 1967
1. The petitioner has filed this Revision Petition against the order made by the learned Sessions Judge, Mysore, in Mysore Criminal Appeal No. 77 of 1965 confirming the conviction and sentence passed by the IInd Munsiff and First Class Magistrate, Mysore, in C.C. No. 1146 of 1964.2. The main question for decision is whether a Sessions Judge empowered under Section 17(4) of the Code of Criminal Procedure, to be hereinafter referred to as the Code, to dispose of urgent applications by a Sessions Judge of an adjoining Division gets power to hear and dispose of criminal cases pending on the file of the adjoining Sessions Division?
3. Briefly stated, the facts necessary for the determination of the above question are as follows:
Sri A. Panchaksharaiah was working as Sessions Judge of Mysore District. He was to retire on 7.11.1965. The Registrar, High Court of Mysore, addressed a letter to Sri Panchaksharaiah which reads as follows:
Sub : Handing over charge on attaining
the age of superannuation.
I am directed to request you kindly to band over charge on the afternoon of 7.11.1965 to the Civil Judge, Mysore, on Civil Side, and to make necessary arrangement for disposal of argent matters on the Criminal side, under Section 17(4) of the Coda of Criminal Procedure, by empowering the Sessions Judge, Mandya.
In pursuance of this direction by the High Court, the Sessions Judge of Mysore empowered the Sessions Judge of Mandya to act under Section 17(4) of the Code. The Proceedings read thus:
PROCEEDINGS OF THE SESSIONS JUDGE
MYSORE DISTRICT, MYSORE.
READ: High Court letter No. R.0.C. 1829/65-C.B. dated 2.11.1965, directing Sri. A. Panchakshariah B.A., (Hons.,) LL. B., Sessions Judge, Mysore to hand over charge on the afternoon of 7.11.1965. Criminal Order No. 5870-5882 dated 4.11.1965.
The Sessions Judge, Mandya is hereby empowered Under Section 17(4) of the Code of Criminal Procedure for disposal of urgent matters on the Criminal side of this District, as desired by the Honourable High Court in the above said letter, till further direction is received from the Honourable High Court.
Sd/- A. Panohaktharaiah,
Sessions Judge,
Mysore.
After the receipt of the above proceedings, Sri R. Nagaraj, who was the Sessions Judge of Mandya at that time issued the following proceedings:
PROCEEDINGS OF THE SESSIONS JUDGE
AT MANDYA.
READ :(1) High Court letter R.0.C. No. 1829/85 C.B. dated 2.11.1965, directing the Sessions Judge, Mysore to make in-charge arrangements for the disposal of urgent Criminal matters etc.
(2) Proceedings No. Crl. No. 5870-5882, dated 4.11.1965 of the Sessions Judge, Mysore empowering the Sessions Judge, Mandya, to dispose of urgent Criminal matters of Mysore District.
CRIMINAL ORDER No. 77 DT. 8.11.1965.
The Sessions Judge, Mandya, will be holding Court at Mysore, from 10.11.1965 to 14.11.1965 (inclusive) and will hear Criminal Cases pending on the file of the Sessions Judge, Mysore.
Sd/- Sessions Judge,
Mandya,
As per the above notification, Sri R. Nagaraj camped at Mysore and presided over the Sessions Court as Mysore. In the instant case, I. A. No. I was filed on 5.11.1965 for return of the driving license, lorry permit and house tax receipt which were in the case Sled. There is a note in the order sheet on 5.11.1965 to the effect that no such documents are found in the lower Court records. The order passed by Sri Panchaksharaiah, the then Sessions Judge, was to the following effect : "Bring up on the hearing date." The hearing date had been fixed on 29.10.1965 and the case was posted to 12.11.1965. On 12.11.1965 Sri Nagaraj presided over the Court and he passed the following order:
G.M.S. does not press I.A-I which is rejected. Arguments heard. By consent of learned Counsel for accused and learned P.P. I shall pronounce judgment at 11 A.M. on 14.11.1966 which is a Sunday, 13th is a Holiday.
Sd/- R. NAGAEAJ
12.11.65.
On 14.11.1965 be has passed the following order:
Judgment pronounced dismissing the appeal.
Sd/- R. NAGARAJ,
I/c. Sessions Judge,
14.11.1865.
For the determination of the above question, the facts of the case are not necessary.
(4) The answer to the question stated above hinges entirely upon the interpretation of Section 17(4) of the Code. Section 17(4) reads thus:
The Sessions Judge may also when he himself is unavoidably absent or incapable of acting make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, if there be no Additional or Assistant Sessions Judge, by the Sessions Judge or Additional or Assistant Sessions Judge of the adjoining Sessions division and such Judge shall have jurisdiction to deal with any such application.
The contention of the learned Advocate for the petitioner is that the learned Sessions Judge of Mandya could exercise powers under Section 17(4) of the Code which were conferred on him by the Reason Judge of Mysore under the proceedings dated 4.11.1965. It is further urged that the power conferred by the Sessions Judge of Mysore on the Sessions Judge of Mandya under Section 17(4) of the Code is confined only for the disposal of urgent applications on the file of the Sessions Judge of Mysore Division. It was contended that the learned Sessions Judge of Mandya had exceeded his powers in issuing proceedings to the effect that he would hear criminal oases pending on the file of the Sessions Judge, Mysore. It was also contended that the Sessions Judge of Mandya was not empowered under the law to hear and dispose of the criminal appeal in question. The powers conferred on him under Section 17(4) of the Code were limited only to hear and dispose of urgent applications and therefore the judgment delivered by him in Cr. A. No. 77/1965 is invalid in law as it is not an "urgent application." He further contended that it is not a case wherein the State Government exercised the powers under Section 9(4) of the Code and appointed the Sessions Judge of Mandya to sit and dispose of oases of the Sessions Court of Mysore Division. On the other hand, the learned State Prosecutor contended that the Sessions Judge of Mandya who was placed in charge of Sessions Division of Mysore was a person who was invested with powers of the Sessions Judge and therefore he was empowered to exercise the powers of the Sessions Judge and dispose of the criminal appeal in the Reasons Division of Mysore, While I find no merit in the contention put forward by the learned State Prosecutor, I see force in the contentions put forward on behalf of the petitioner.
The conferment of power under Section 17(4) of the Code is limited for the disposal of any urgent application made to the Court. Hearing of criminal appeals pending on the file of the Sessions Judge, Mysore, is not a matter coming under the category of urgent applications. Therefore, the order of the Sessions Judge, Mandya, who was exercising powers under Section 17(4) of the Code cannot be deemed to be valid because there appears to be no authority under the law for him to make any such order under Section 17(4) of the Code. There was certainly no urgency about the matter which he has heard and disposed of. The learned Judge has clearly exceeded the powers conferred on him under Section 17(4) of the Code. The counsel for the State relied upon the decision in Queen Empress v. Fazl Azim, reported in (1895) ILR 17 All. 86, and contended that the irregularity committed by the Sessions Judge has not been shown to have occasioned failure of justice and therefore the irregularity is cohered by Section 531 of the Criminal P.C. and does not render the judgment a nullity. That is a case which does not fall within the ambit of Section 17(4) of the Code. The facts are also entirely different. Therefore, the above decision is of no assistance in this case. The learned State Prosecutor neatly relied upon the decision in Ayub Syed Hasan v. State of U.P. wherein a temporary Sessions Judge who takes over the file of another temporary Sessions Judge in the same Sessions Division is to all intents and purposes a presiding officer of the Court of Session and, as such, exercises the powers and performs the duties of that Court. He can, therefore, make a complaint under Section 476, Criminal P.C., in respect of the offences falling under Section 195, Criminal P.C. that were committed in the Court of his predecessor. Even this decision is of little, assistance in this case. It is not a case dealing with the powers of a Sessions Judge who is empowered under Section 17(4) of the Code.
5. In Maung Ba Maung v. Emperor AIR 1980 Rang 335 it is laid down that the Code of Criminal Procedure strictly limits the powers of an Additional Sessions Judge to such as are conferred upon him directly by the Local Government or by the Sessions Judge of the division in which he exercises power.
6. Section 17 of the Code enables the Sessions Judge to make provision for the disposal of any urgent application by an Additional Judge when the Sessions Judge is unavoidably absent or in-capable of acting. When the provisions of Section 17(4) strictly limits the power of the Sessions Judge of Mandya to hear and dispose of urgent applications, the learned Sessions Judge of Mandya was not within his limits when he issued the proceeding dated 8.11.1965 to the effect that he would hear criminal cases pending on the file of the Sessions Judge, Mysore, and also he was not well within his limits in camping at Mysore and hearing and disposing of the criminal appeal in question. Powers conferred under Section 17(4) of the Code authorized the Sessions Judge of Mandya to deal with J.A. No. 1 filed in the case and dispose it of. The learned Judge should have stopped at that stage. But he his gone beyond the powers conferred under Section 17(4) of the Code in hearing the arguments and pronouncing the judgment in the criminal appeal. In doing be, the learned Sessions Judge of Mandya has exceeded the powers conferred on him under Section 17(4) of the Code.
7. There is another question which arises in, this case. That question is whether a retiring Sessions Judge of a Division could exercise the powers under Section 17(4) of the Code and empower the Sessions Judge of an adjoining Division to dispose of urgent applications. Whether the retirement of a Sessions Judge would amount to unavoidable absence or incapable of acting is a matter which requires consideration. Undoubtedly, retirement of a Sessions Judge cannot amount to unavoidable absence. Further, a Sessions Judge who empowers a Sessions Judge of another adjoining Division under Section 17(4) of the Code must continue to be the Sessions Judge of that Division and he is unavoidably absent or incapable of acting. In the instant case, from 7.11.1965, Sri Panchakaharaiah ceased to be the Sessions Judge of Mysore Division by reason of his retirement. Hence he could not have exercised the powers under Section 17(4) of the Code and empower the Sessions Judge of Mandya to exercise powers as required under Section 17(4) of the Code, Such a power can only be conferred by the State Government under Section 9(4) of the Code. So, the proceedings issued Sri Panchaksharaiah on 4.11.1965 is also without any legal basis. Therefore, in my opinion, the proceeding issued by the Sessions Judge of Mysore empowering the Sessions Judge of Mandya under Section 17(4) of the Code for disposal of urgent applications on the criminal side of that Division is illegal. Further, the action of the Sessions Judge of Mandya in hearing the criminal appeal in question and delivering the judgment is invalid in law. The judgment delivered by the learned Sessions Judge of Mandya in the instant case is, therefore, not sustainable in law.
8. For the reasons stated above, the Revision Petition is allowed. The Judgment passed by the learned Sessions Judge of Mandya in Cr.A. No. 77/1965 is hereby set aside. The Sessions Judge of Mysore Division is directed to take the appeal on his file and dispose of the same in accordance with law.
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