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1999 DIGILAW 1396 (MAD)

Manuel T. Paikaday, Advocate, Ernakulam v. Revenue Inspector, Palai Municipality

1999-11-30

K.K.MATHEW, M.U.ISAAC

body1999
Order.- The accused in the cases 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 Section 417, Criminal Procedure Code, 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. The accused has filed these appeals against the order of the learned Single Judge under section 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 section 5 (ii), and for passing appropriate orders. “ Section 5 (ii) of the Act is as follows: ”An appeal shall lie to a Bench of two Judges from- * * * * * (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; * * * * * * Section 5 of the Act before it was amended by Act VI of 1966 reads thus: “An appeal shall lie to a Bench of two Judges from a judgment or order of a Single Judge in the exercise of original jurisdiction. An appeal shall die to a Bench of two Judges from a judgment of a Single Judge in the exercise of a; 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 section 5 (11) whether the order was passed in a civil or criminal case. From the context it would appear that the word “order” in sub-section (ii) of section 5 was intended to include only an order passed in a suit or a civil proceeding. The collocation of the words ‘decree or order’ lends support to this construction. It may be recalled that section 5 (ii) was enacted to remove an anomaly. From the context it would appear that the word “order” in sub-section (ii) of section 5 was intended to include only an order passed in a suit or a civil proceeding. The collocation of the words ‘decree or order’ lends support to this construction. It may be recalled that section 5 (ii) was enacted to remove an anomaly. While there was provision in section 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 section 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 Bihar1, the rule in Heydon’s case2 that for the sure an 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 section 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. M.C.M. ----- Appeal rejected.