S. Ranga Rao Vs. State of Mysore - Court Judgment

Excerpt:
- code of civil procedure, 1908. order 47 rule 1: [v. jagannathan, j] review of judgment and decree in regular second appeal position of an illegitimate son coparcenary properties ruling in the case of smt. sarojamma v smt. neelamma, [reported in ilr 2005 (3) kar 3293; 2005 (5) klj 66; 2005 (3) kccr 2053; 2005 air kar r 1894; air 2005 noc 422; 2006 (1) civil l.j. 145] consideration of held, one of the grounds for seeking review is that there is an error apparent on the face of the record and not an erroneous decision on facts, held, an error on a point of law is apparent on the face of the judgment with regard to the entitlement of an illegitimate child to a share in the property of his father, irrespective of the nature of the property. hence, the matter requires to be reviewed......order1. the petitioner has been convicted by the learned sub-divisions i magistrate, hospet, in c. c. no. 45 of 1956, under s. 15(a) of the madras sales tax act and sentenced to pay a fine of rs. 400/-, in default to undergo s. i. for two months. the conviction as well as the sentence have been confirmed by the learned sessions judge, bellary, in criminal appeal no. 64 of 1957 on his tile. as against these decisions the petitioner has come up in revision to this court.2. a number of grounds have been taken in this revision petition, challenging the correctness as well as the legality of the conviction and sentence, but for obvious reasons, only one ground had been pressed before me, i. e., ground no. 1. it was contended on behalf of the petitioner that sri g. p. jagadeesh, the learned.....

Judgment:
ORDER

1. The petitioner has been convicted by the learned Sub-Divisions I Magistrate, Hospet, in C. C. No. 45 of 1956, under S. 15(a) of the Madras Sales Tax Act and sentenced to pay a fine of Rs. 400/-, in default to undergo S. I. for two months. The conviction as well as the sentence have been confirmed by the learned Sessions Judge, Bellary, in Criminal Appeal No. 64 of 1957 on his tile. As against these decisions the petitioner has come up in revision to this Court.

2. A number of grounds have been taken in this revision petition, challenging the correctness as well as the legality of the conviction and sentence, But for obvious reasons, only one ground had been pressed before me, i. e., ground No. 1. It was contended on behalf of the petitioner that Sri G. P. Jagadeesh, the learned Sub-Divisional Magistrate, Hospet, who convicted the petitioner, had no authority to do so as his appointment as a Magistrate was not in accordance with law. It was urged that the appointment of Sri Jagadeesh was invalid as the same was made by the High Court and not by the State Government as required by Section 12(1) of the Criminal Procedure Code.

3. The aforesaid contention had not been raised in the Courts below, But as it related to the competence of the Court to try the accused, II permitted the learned counsel for the petitioner to urge the same in spite of the fact that it involved investigation of fresh facts.

4. It is evident that the petitioner has taken up this contention without acquainting himself of the true facts. There is no substance in it.

5. Sri Jagadeesh is a member of the Judicial service of this State. He was appointed as a Munsiff in Notification No. Ch. S. 6478/G. N. 69-55-1 dated 20-7-1956. The former High Court of Mysore had posted him as the Munsiff and Sub Divisional Magistrate, Hospet, as per Notification No. N. O. C. 1002/52 dated 16-7-1956. Under Article 235 of the Constitution, it is within the competence of the High Court to post a Munsiff to any of the Courts subordinate to it. What is contended before me is that he could not have held the post of a Magistrate, unless he had been appointed as such under Section 12(1) Cr. P. C. and that by the State Government. It is not the case of the petitioner that the same officer could not have held both the posts as Munsiff as well as Sub-Divisional Magistrate. Hence the only point for consideration is as to whether Sri Jagadeesh had also been appointed as a Sub-Divisional First Class Magistrate.

6. Till the Andhra State was formed Bellary, District was a part of the Madras State. A portion of the quondam Bellary District was integrated with the old Mysore State as per the Andhra State Act. The scheme of separation of the judiciary from the Executive had been extended to the District of Bellary long prior to the Andhra State Act came into force. As per G. O. No. MS. 4048 dated 7-11-1952 the Governor of Madras in exercise of the powers conferred by Section 12(1) and Section 37 ot the Criminal Procedure Code, 1898 issued a Notification. The relevant portion of the Notification is as follows :

'1 (a) appoints the persons posted as Sub-Divisional Magistrates in the District in which the Scheme of separation of the Judiciary from the Executive has been introduced, by virtue of their offices, to be Magistrates of the First Class in their respective districts, and

(b) invests them with all the powers specified in the Fourth Schedule to the said Code as powers with which a Magistrate of the First Class may bo invested by the State Government;

2 (a) appoints the persons posted as Additional First Class Magistrates and District Munsiff cum First Class Magistrates in the District in which the scheme of separation of the Judiciary from the Executive has been introduced by virtue of their offices, to be Magistrates of the First Class in their-respective districts and

(b) invests them with all the powers specified in the Fourth Schedule to the said Code as powers with which a Magistrate of the first class may be invested by the State Government except......'

By this notification the Governor was pleased to appoint every Sub-Divisional Magistrate posted to the Bellary District as First Class Magistrate. He was so appointed by virtue of his office. Similar is the position of the Additional First Class Magistrate and District Munsiff cum First Class Magistrates.

7. As per S. 53 of the Andhra State Act, the notification continued to be effective even alter Bellary District (as if is constituted now) was integrated with the State of Mysore. If the posting of Sri Jagadeesh as Sub-Divisional Magistrate is a valid one then he automatically gets himself appointed as First Class Magistrate by virtue of his office.

8. The next question that comes up 'or consideration is as to what was the source of the power of the High Court to post Sri Jagadeesh as Sub-Divisional Magistrate or District Munsiff cum First Class Magistrate, Hespet. For this we must refer to the scheme of separation of the judiciary from the Executive as adumbrated by the Madras Government. In pursuance of that scheme the power of posting of the Sub-Divisional Magistrates, and other Judicial Magistrates (in the Districts in which the separation scheme had come into effect) had been delegated to the High Court. This was done by means of a notification under Article 237 of the Constitution. The Judicial Magistrates in the State were brought in line with other members of the subordinate Judicial service. A similar notification had been issued by the Rajpramukh of Mysore as per notification No. 759/Cts. 1-50-4 dated 4-5-1950. Subordinate Courts in the Bellary District came under the control and supervision of the High Court of Mysore, after the integration of the District with the State of Mysore. Consequently the High Court had power to post not merely the members of the Judicial Service as such but also the Magistrates in the District.

9. From the foregoing it is clear that Sri Jagadeesh was validly posted as a Sub-Divisional Magistrate, Hospet. By virtue of his office, he was appointed by the State Government as a First Class Magistrate of Hospet. Hence the contention raised by the petitioner is unsutailiable.

10. At the bearing of this petition Sri Ullal, the learned counsel for the petitioner filed an application before me to treat this revision petition as an application under Article 227 of the Consitution. It is averred in the Affidavit filed in support of that petition, that for a proper decision in this case, several provisions of the Constitution are required to be interpreted. I informed Sri Ullal that I would consider the prayer made in his petition after hearing his arguments in the case. In the course ot the arguments, Sri Ullal had not addressed himself tothe interpretation of any Article of the Constitution. All that was urged is that by issuing a notification under Article 237 the power of the Government to appoint Magistrates under Section 12(1) Cr. P. C. is not lost, I have considered this question in extenso. The appointment is deemed to have been made as per Government Order No. MS. 4048 dated 7-11-1952 issued by the Governor of Madras. There is no merit in this petition and the same is rejected.

11. In the result, this revision petition foilsand the same is dismissed.

12. Petition dismissed.