STATE OF KARNATAKA v. CHANNABASAPPA — 1991 DIGILAW 130 (KAR)

M. M. MIRDHE, J. ( 1 ) THIS Criminal Petition is filed by the State u/s. 439 (2), of the Code of Criminal Procedure praying to cancel the bail granted to the respondents in Criminal Miscellaneous Petition No. 56/1990 on the file of the Special Judge-cum-Sessions Judge, Bellary. ( 2 ) IHAVE heard the learned High Court Government Pleader and the learned counsel for the respondents fully and perused the records of the case. ( 3 ) THE facts leading to this petition are as follows: bellary Rural Police station, Bellary has registered a case in Crime No. 98 of 1990 against the respondents for the offences punishable u/ss. 143, 147, 148, 324, 435 read with S. 149 of the Indian Penal Code, on the allegation that on 29-04-1990 at about 5-30 p. m. Huts of Harijan colony at Sangankal village were set on fire when hundreds of persons indulged in arson and the complainant Bharmappa sustained injury as a result of assault by one Yerragudi Rajasekhar who hit him with but-end of an axe on his head when he pleaded not to set fire to his Hut and that one Pinjar Honnurappa hit him with a stone on his right side abdomen, when he was trying to remove the articles from his hut which was set ablaze. The Police investigated into the case and during investigation an old Harijan woman by name Huligamma aged about 70 years, found to have died as a result of burn injuries sustained in the incident in the Medical College Hospital, Bellary and therefore, S. 302 of the Indian Penal Code, and S. 3 (2) (4) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 came to be added to the case. The respondents filed an application u/ Ss. 437 and 439 of the Cr. P. C. for enlargement of their bail; that the Court of Sessions Judge, Bellary and the learned Civil Judge and JMFC, in-charge Sessions Judge, Bellary passed the impugned, order. ( 4 ) AN important question arises in this petition as to whether the learned Civil Judge and J. M. F. C. , Hospet can pass the order u/s. 439, Cr. P. C. as in-charge Sessions Judge in a case relating to an offence punishable with death or imprisonment for life. ( 4 ) AN important question arises in this petition as to whether the learned Civil Judge and J. M. F. C. , Hospet can pass the order u/s. 439, Cr. P. C. as in-charge Sessions Judge in a case relating to an offence punishable with death or imprisonment for life. ( 5 ) IN order to satisfy myself as to how the learned Civil Judge got powers to pass the impugned order, I call for the Notification from the office of the Registrar of this Court, on this point. The office sent the Notification dated 17-04-1990 which reads as follows: -"in exercise of the powers conferred by clauses (a) and (b) of sub-sec. (3) of S. 28 of the Karnataka Civil Courts Act, 1964 (Karnataka Act No. 21 of 1964), the High Court of Karnataka hereby designates the District Judges /civil Judges mentioned in Col. No. 2 of the table, below, as the Vacation District Judges/civil Judges for the duration of adjournment of District Court mentioned in Col. No. 3 for the period of Summer Vacation of 1990 noted in column No. 4. TABLE sl. No. Designation district Court period from to xx xx xx 7. Civil Judge, Bellary bellary 23-5-90 27-5-90. " ( 6 ) FROM the Notification it can be seen that the Civil Judge was appointed as a Vacation District Judge for the period mentioned in the Notification under clauses (a) and (b) of sub-sec. (3) of S. 28 of the Karnataka Civil Courts Act, 1964 (Karnataka Act No. 21 of 1964 ). This Notification will not give the powers to a Civil Judge to exercise of the powers of Sessions Judge. I call for the report from the District and Sessions Judge, Bellary, as under what authority the learned Civil Judge and CJM, Bellary acted in the matter and passed the impugned order. The learned District and Sessions Judge has sent his report dated 31-03-1990, which reads as follows:"i have authorised the Civil Judge and CJM, Bellary, and Civil Judge and JMFC. , Hospet, to attend all urgent matters on Criminal side during my absence on availment of summer vacation. The learned District and Sessions Judge has sent his report dated 31-03-1990, which reads as follows:"i have authorised the Civil Judge and CJM, Bellary, and Civil Judge and JMFC. , Hospet, to attend all urgent matters on Criminal side during my absence on availment of summer vacation. " ( 7 ) THE question to be answered is whether in view of the Notification of the High Court of Karnataka dated 17-04-1990 and also the authorisation given to the Civil Judge and CJM, by the District and Sessions Judge, Bellary, will the Civil Judge and CJM acting as in-charge Sessions Judge, have the powers of a Sessions Judge. ( 8 ) SECTION 9 of the Code of Criminal Procedure reads as follows: "the State Government shall establish a Court of Session for every sessions division. " sub-section (5) of S. 9 of the Cr. P. C. reads as follows: where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the Sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. " there does not appear to be any Notification or any orders of the High Court u/ S. 9 (5) of the Cr. P. C. authorising the learned Civil Judge and CJM, Bellary to exercise the powers of a Sessions Judge. This point has been dealt with in Prem Nath v. State of Rajasthan, AIR 1967 SC 1599 : (1967 Cri LJ 1569 ). Wherein the Supreme Court has held as follows (paras 11, 12) (of Cri LJ):"there is no provision in the Code of Criminal Procedure under which a Civil Judge can be invested with powers of an Additional Sessions Judge. Where therefore, a person appointed as a Civil Judge is also intended to work as an Additional Sessions Judge an appointment has to be made under S. 9 of the Code of Criminal Procedure as an Additional Sessions Judge. Where therefore, a person appointed as a Civil Judge is also intended to work as an Additional Sessions Judge an appointment has to be made under S. 9 of the Code of Criminal Procedure as an Additional Sessions Judge. When such a Civil Judge exercises the power of an Additional Sessions Judge he does so not because he is a Civil Judge but because of his being appointed as an Additional Sessions Judge u/s. 9 of the Code. " ( 9 ) IN this case on hand, there is no order appointing the Civil Judge and C J M as an Additional Sessions Judge by the High Court u/s. 9 of the Cr. P. C. Therefore, the learned Civil Judge and C J M, Hosapet, who while acting as in-charge Sessions Judge passed this order had no powers to pass the impugned order. On this point itself the bail granted by him which is without any authority or power is liable to be set aside. Hence, I make the following order this petition is allowed. The bail granted by the Civil Judge and C J M, Hosapet acting as in-charge Sessions Judge, Bellary is hereby cancelled. The respondents are at liberty to file applications u/s. 439, Cr. P. C. in Court of Sessions Judge, Bellary after they surrender to the police and the said applications being filed by the respondents shall be disposed of as expeditiously as possible. Petition allowed. --- *** --- .