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STATE OF MAHARASHTRA VERSUS SHRI BALKRISHNA HARI PATIL


Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

    Criminal Revision Application No: 214 of 1992

    Decided On, 06 March 2000

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE ACTING CHIEF JUSTICE MR. N.J. PANDYA
    By, THE HONOURABLE MR. JUSTICE S.B. MHASE & THE HONOURABLE MR. JUSTICE N.V. DABHOLKAR

    For the Appearing Parties: C.R. Deshpande, E.P. Sawant, Advocates.



Judgment Text

N. J. Pandya, A. C. J.


(1) A couple of important questions have been posed before us by the learned Single Judge of this Court, in a very well written and elaborate judgment, dated 23rd/25th June, 1999 in Criminal Revision Application no. 214/92. The matter arose under the provisions of the amended Indian Forest act, 1927 (hereinafter, referred to as the "said Act"), whereby, a whole chapter was added starting from Section 61 A. An appeal has been provided under Section 61d thereof and the learned Additional Sessions Judge having dealt with the appeal, questions arise whether revision could be filed under the provisions of section 397 read with Section 401 of the Criminal Procedure Code and whether, any other judicial officer in the sessions division, that the Sessions Judge of that sessions division, could have heard the appeal under Section 61d of the said Act.


(2) SO far as the later point is concerned, it was sought to be urged on behalf of the applicant that if could be treated as a persona designate and therefore, none other that the Sessions Judge can hear the matter and the Additional Sessions judge will not have power or competence to deal with the matter under Section 16d of the said Act,


(3) AT the first sight, this might appear to be unwarranted submission. However, the learned Single Judge has referred to the decision in case of Nagnath revansidhappa Cholkhane Vs. Osmansaheb Mohammedsaheb Pangaonkar (1997 Mh LJ 491), where in a case attracting Section 25 (1) of the Hyderabad Rent control Act, a view was expressed by the Division Bench to the effect that the appellate authority mentioned therein, namely, District Judge is a persona designata. However, in view of the decision in case of Maharashtra State Financial Corporation vs. Jaycee Drugs and Pharmaceuticals Pvt. Ltd. and others (1991 (2)SCC 637) the Honourable Supreme Court has in clear terms said that the District judge will include Additional District Judge also. In one more judgment of the supremo Court in case of Makri Gopalan Vs. Cheppilat Puthanpuravil aboobacker (1995 (5) SCC 5) in relation to an appeal under the Kerala Buildings (Lease and Rent Control) Act, 1965, in Section 18 (1) (a), the subordinate Judge referred To therein meant a Judge having co-ordinate powers.


(4) THUS, above cited judgments of the Supreme Court, as well as later judgment of this Court in case of Dayaram Tulshiram Rajguru Vs. Mamasaheb alias balasaheb Bhimrao Janrao and others, (AIR 1999 Bom. 72), as quoted by the learned Single Judge himself, would make it clear that the District Judge or sessions Judge, as the case may be, referred to in a statute, in relation to an appeal could not be taken to be a persona designata and refer to a person fitting in that character and not a person of that name.


(5) THE judgment in case of Vora Abbasbhai Alimahomed Vs. Haji Gujlamnabi haji Safibhai (AIR 1964 SC 1341) has also been referred to in relation to Section 115 of the Civil Procedure Code. We, therefore, now proceed to consider that aspect.


(6) SO far as the revision is concerned, like a right of appeal, it is a creation of statute. Unless a provision is made, as defined in several statutes, and for which purpose very reference can be made to Civil Procedure, the powers are reserved with the highest authorities and in case of Civil Procedure Code, it is the High court, who can of its own, call for the record and proceedings in any case to satisfy itself about the propriety, legality and jurisdictional aspect of the matter. When we are dealing with the criminal matters, obviously the procedure has to be followed as laid down in Criminal Procedure Code, 1973. Power of revision is also therein as provided under Section 397 read with Section 401 of the Code. However, it is the power of revision confined to a matter, to which the Code of Criminal Procedure applies When the special statute, which in itself, starting from Section 61ahas no provision therefore, there is no question of reading further in to that amended pro-vision of the said Act to add something on to the right of an appeal given under section 61d of the said Act.


(7) THE revision sought to be filed by the State before the learned Single Judge, who dealt with it in the aforesaid manner, in giving rise to present reference, in our opinion, is not maintainable. At the same time it is required to be clarified that this will have no bearing on the power that the High Court can exercise under Article 227 of the Constitution of India. It is a power of superintendence over all subordinate judiciary and quasi-judicial authorities of the State. No doubt, the learned sessions Judge, when he hears appeal under Section 61d of the said Act, will be the judicial officer and will be exercising his right to hear an appeal as the appellate authority under Section 61d of the said Act. It cannot be said that he is exercising that power, with reference to Code of Criminal Procedure and the appellate powers given to the appellate authority under Section 378 of the Code of Criminal Procedure are being attracted. Obviously, the revisional powers under Section 379 read with Section 401 of the Code of Criminal Procedure will also not be attracted.


(8) NONETHELESS, as mentioned above, Article 227 of the Constitution of India will be very much there, which will enable this Court in the given

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case to exercise its powers of superintendence and consider whether the order in question meets with the aforesaid requirements under the law. (9) IN the process, we answer the reference as under : (i) The Sessions Judge, mentioned in Section 61d of the Indian Forest act, 1927 (as amended in 1985) is not a persona designata ; (ii) Revision under Section 397 read with Section 401 of the Code of Criminal procedure is not maintainable. At the same time the powers of the high Court under Article 227 of the Constitution are certainly there to hold an appeal. Reference is accordingly answered.
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