Deodhari Rai vs Emperor

Courtney-Terrell, C.J.—This is an application in revision by a person who was convicted by a Magistrate of an offence u/s 471, Penal Code, and sentenced to six months rigorous imprisonment. The accused is a resident of Hajipur, and the offence is alleged to have been committed in the District of Muzaffarpur of which Hajipur is the southern sub-division. Haying been convicted he appealed to the Sessions Court. The Sessions Court of Muzaffarpur covers two Districts-Motihari in the north and Muzaffarpur including the Subdivision of Hanpur in the south. The learned Sessions Judge transferred the case to the Additional Sessions Judge for trial. At the time of the transfer, the Additional Sessions Judge was occupied in hearing cases in Motihari, and the accused was duly informed and so was the Public Prosecutor.

On the 29th May the case was received by the Additional Sessions Judge by transfer and he noted that as he would be engaged in trying a Sessions case at Motihari on the date fixed, that is on the 31st May, the case was adjourned to 14th June 1934, for hearing at Motihari, and the parties were duly informed. On the 14th June the appellant put in a petition, stating that as he was a resident of Hajipur Sub-division, he could not engage a lawyer at Motihari and he asked for an adjournment to some other date and for the hearing of his appeal at Muzaffarpur. But the learned Additional Sessions Judge said that no adjournment would be granted, the appellant had ample notice of the hearing of the appeal at Motihari and his pleader had been informed as far back as the 1st June, as his signature on the order-sheet showed. The appellant not apparently provided with legal facilities appeared and made his protest then and there.

The appeal was heard, and the appellant was heard in person and the Public Prosecutor was heard for the Crown, and the result was that on the ultimate hearing on the 21st June the judgment was delivered dismissing the appeal.

Now, it is perfectly clear that the Sessions judge had jurisdiction to transfer the case to the Additional Sessions Judge. It is perfectly clear also that whereas the Sessions Division of Muzaffarpur covers both Motihari and Muzaffarpur Districts, the appeal could as a matter of law, be heard at Motihari. It is a matter of discretion for the Sessions Judge, or the Additional Sessions Judge, when the matter comes before him on appeal to decide in which district it shall be heard; but that discretion must be exercised in a judicial manner and reasonable attention must be paid to the interest of the appellant.

In this case to my mind the discretion was not exercised in a judicial manner. The learned Additional Sessions Judge seems to think that it was merely a question of whether the appellant had or had not been taken by surprise and he says that whereas the appellant had ample notice of the intention of the Court to hear the appeal at Motiari, he had no real grievance if his appeal was heard at Motihari. Now, Motihari is at a greater distance from the Sub-division of Hajipur (where the appellant resides) than the Sessions Division of Muzaffarpur.

Furthermore it is clear that it was more inconvenient for the appellant to bring a lawyer to Motihari than to bring him to Muzaffarpur. It would have been a proper exercise of discretion for the Additional Sessions Judge to consider these matters, which he did not. If be had considered those matters and nevertheless decided to exercise the discretion, it might have been difficult for this Court to interfere; but not having taken any of the proper matters into consideration, in my opinion, the discretion was wrongly exercised by him. I would therefore set aside the judgment in appeal of the Additional Sessions Judge, and direct that the appeal be re-heard at Muzaffarpur by such appellate tribunal as the Sessions Judge may direct.