ORDER
1. Cr. R. P. No. 302 of 1961 is filed by the accused in Summary Trial Case 1787 of I960. He was prosecuted by the Changanacherry Municipality for offences under Sections 334 and 359 of the Travancore District Municipalities Act -- Act XXIII of 1116--for contravention of the provisions of Section 261 and the bye-laws framed thereunder for having stored in building No. 348, tiles, bricks and surki without taking out a licence. The second Class Bench of Magistrates Changanacherry who tried the case convicted him of the offences charged.
Cr. R. P. No. 310 of 1961 is filed by the accused in Summary Trial Case 1786 of 1960 who had been convicted for a like offence for having stocked for sale coffee husk and tea without obtaining a licence.
Cr. R. P. Nos. 382 and 383 of 1961 are filed by one P. K. Hassanbava Rowther, a Tea Merchant in Kottayam, who was prosecuted and convicted for an offence under Rule 31(2) read with Rule 38 of Schedule II and Section 360 of the Travancore District Municipalities Act for failure to pay profession, tax.
In all these petitions the common question of law that arises is whether the revision petitions filed by them are maintainable.
2. Cfausa 5 of Section 439, Cr. P. C. reads as follows:
'Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed'.
So under this sub-clause, the High Court is precluded from exercising the powers of revision at the instance of the accused, who had a right of appeal, but did not exercise it. What we have to see, is whether in these cases, the accused had really a right of appeal, because if they had the right and did not avail of the remedy, petitions in revision cannot be entertained.
3. Section 414, Cr. P. C. says that there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under Section 260 passes a sentence of fine not exceeding two hundred rupees only. There is no dispute that the accused were tried summarily, but were they tried and convicted by a Bench of Magistrates invested with the powers of the Magistrate of the First Class as contemplated under Section 260 Cr. P. C.? If the conviction is only by a Second Class Bench of Magistrates appeal would certainly lie.
4. The learned counsel appearing for the re-Vision petitioners contends that Sri K. Easwaran Potti, Chairman of the Bench is a person invested with the powers of a First Class Magistrate and he has taken part in the hearing of these cases, though in S. T. No. 1786 and S. T. No. 1787, Sri. Potti has not signed the judgment and therefore the Bench must be deemed to be a First Class Bench under Section 15 clause 2 of the Criminal Procedure Code.
5. The question is whether Section 15(2) would apply in these cases Section 15 Cr. P. C. reads as follows:
'(1) The State Government may direct any two or more Magistrates in any place outside the presidency towns to sit together as a Bench, and may by order invest such bench with any of the powers conferred or conferrable by or under this Code on a Magistrate of the first, second or third class and direct it to exercise such powers in such cases, or, such classes of cases only, and within such local limits, as the State Government thinks fit.
(2) Except as otherwise provided by any order under this Section every such Bench shall have the powers conferred by this code on a Magistrate of the highest class to which any one of its members, who is present taking part in the proceedings as a member of the bench, belongs, and as far as practicable shall, for the purposes of this code, be deemed to be a Magistrate of such class'.
6. Under Section 12, Cri. P. C, the State Government is given powers to appoint Magistrates of the first, second or third class in any district outside the presidency towns. Under Section 14 the State Government is given power to confer upon any person, all or any of the powers conferred or conferrable by or under the code on a Magistrate of the first, second or third class and such Magistrates would be called special Magistrates. Then under Section 15 the State Government is given power to direct any two or more Magistrates to sit together as a Bench and to invest such Bench with any of the powers conferred under code on a Magistrate of the first, second or third class and then by Subsection (2) it is provided that except as otherwise-provided by the order, every such bench shall haver the powers conferred by the code on a Magistrate of the highest class to which any one of its members who is present taking part belongs.
7. What does 'except as otherwise provided under the section' mean, is what remains to be decided. On a reading of the two clauses it seems to us that it can only mean that unless special powers are conferred by the order constituting the Bench, every such Bench shall have the power referred to in Sub-clause (2). Here, it is admitted that the Government had constituted the Changanacherry Bench Court as a Second Class Bench Court. That being so, Clause (2) would have no-application. The contention of the learned counsel' is that the order constituting the Bench as a Second1 Class Bench should have further specified that[ even in a case where one of the Magistrates who sits on that Bench is a First Class Magistrate stilt the Bench would only be a Second Class Bench and in the absence of such a provision in the order clause (2) would apply. We do not agree. It is only in cases where the Government constitute a Bench in a particular locality, without naming it as a first, second or third class Bench that the provision contained in Clause (2) of Section 15 would apply.
8. We are fortified in the view that we take by the observations of Beaumont C. J. in Emperor v. Bhimabai Sitaram, AIR 1934 Bom 176.
9. In a very clear case reported in Queen Empress v. Narayanaswami, ILR 9 Mad 36 the accused was tried summarily by a Bench of Magistrates invested with the powers of a Magistrate of the second class and convicted and the question-was whether an appeal would lie under Section 407, Cri. P. C. (omitted by Act 26/55). While considering this question Hutchins, J. observed:
'The District Magistrate has referred to the-General Clauses Act, Section 2(13), which provides, that the term 'Magistrate' shall include all persons exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure. But Section 15 of the Code itself is still more explicit. Every Bench, as far as practicable shall, for the purposes of this code, be deemed to be a Magistrate of such class, i.e., of the highest class to which any one of its members belongs. It is true that this clause is exceptional, 'except as otherwise provided' by any order of Government under the section conferring or limiting the powers of the bench. but it renders it pretty clear that the legislature;intended that a bench with the powers of a Magistrate of any class should be deemed to be itself a Magistrate of that class'.
It follows that if the Government constitute a particular Bench as a second class Bench, it will always be a second class Bench, even though one of the Magistrates who sits on the Bench is a Special Magistrate invested with First Class powers. Therefore from an order passed by the Bench Court of Changancherry an appeal lies and since the accused did not avail themselves of the right of appeal, under clause (5) of Section 439, Cri. P. C., revision will not lie.
10. A question of jurisdiction also has been raised by the learned counsel for the petitioners, that some of the Magistrates who took part in the trial and decided the cases were not Magistrates on the day when they heard the cases and pro-.nounced the judgment. From the Kerala Government Gazette dated 19-9-1961 it is seen that the following 'persons:
(1) Sri C. J. Sebastian; (2) Sri C. K Kesavan;(3) Sri. N. Raja Raja Varma; (4) Sri. K. Krishnan Nair and (5) Shri. K. Hameedkannu Rowther were appointed for a period of two years as Judges ofthe Village Panchayat Court, Changanacherry and invested with the ordinary powers of a Magistrateof the Second Class and directed to sit as members of the Bench Magistrate's Court, Changanacherry under Section 14, Cri. P. C. The term of appointment of G. Kesavan Namboodiri and M. Abdul Karim having expired, they were not reappomted. They have, however, taken part in the proceedings and signed the judgments, and the argument is thattheir term having expired and they not being re-appointed they have ceased to be Magistrates with effect from the date of the Government notification and as such they have no power to sit on the Bench and hear and decide cases.
11. Under Rule 9 of the Rules framed under Section 12B of Regulation V of 1067 by the Government of His Highness the Maharaja of Travan-core, the term of Office of Honorary Magistrates had been fixed as two years. But these Rules have been amended in 1938 (Vide Acts and Proclamations of Travancore, Vol. X, Appendix A, Page 31) and it is seen that Rule 9 has been omitted and re-numbered as Rule 10 and at the end of the said Rule the following provision has been made.
'The term of office of an Honorary Magistrate shall be two years and he shall, unless, otherwise directed by Government continue in office until his successor takes charge'.
By this amended Rule, it is clear that the old Magistrates will continue in office until their successors have taken charge and there is no case that on the date when these two Magistrates heard and decided the cases the successors had taken charge. Therefore, it follows that the old Magistrates had jurisdiction to sit and hear cases. The objection fails.
12. Since the revision petition is not maintainable, the other questions raised by the petitioners have not been considered and decide.
13. These revision petitions are dismissed.