In Re: Alagu Ambalam and Others

In this case a criminal appeal against a conviction by a Second Class Magistrate was presented to the first Class Sub-Divisional Magistrate.

After partly hearing the appeal he resolved to examine certain persons as Court witnesses and issued summons to them. Thereupon one of the

parties to the appeal petitioned the Additional District Magistrate to transfer the appeal to another Court, alleging that the examination of further

witnesses was wholly unnecessary. The Additional District Magistrate, after hearing the appellants and the complainant, transferred the appeals to

his own file, and, without examining the further witnesses, disposed of the appeal, confirming the conviction.

We are asked now, as a Court of Revison, to set aside the proceedings of the Additional District Magistrate on two grounds; first, that he had

no jurisdiction to transfer an appeal which had been partly heard by the Sub-Divisional Magistrate and, second, that if he had power to make the

transfer he was bound to examine the witnesses to whom the Sub-Divisional Magistrate had issued summons.

We do not think that there is any ground for either contention. No decision on the point is cited, and we are not aware that any exists. The

petitioners rely on the analogy of the case of Kumarasami Reddiar v. Subbraya Reddiar ILR (1889) M. 314 in regard to certain civil appeals, but

we do not think that that case has any bearing on the present question. To decide the present question, we must look to the terms of the Criminal

Procedure Code. Section 407 provides for an appeal, in cases like the present, to the District Magistrate, and adds that ""if the District Magistrate

so directs, any appeal or class of appeals may be presented to and heard by a First Class Magistrate subordinate to him and empowered by the

Local Government to hear such appeals."" It furthur provides that ""the District Magistrate may withdraw from such Magistrate any appeal or class

of appeals so presented."" There is no limitation in the section or elsewhere in the Code of Criminal Procedure on this power of withdrawal, and we

should not be justified in introducing a limitation in respect of part-heard appeals, which the legislature has not thought fit to enact.

As observed by the Privy Council in the case of Gokul Mandar v. Pudmanund Singh (1902) 29 I.A. 196 ""the essence of a Code is to be

exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the

enactment according to its construction."" If the legislature desired to impose the suggested limitation, it would have found no difficulty in enacting it.

Moreover, the power of withdrawal is given with a view to promote the ends of justice and the convenience of parties; and there is no reason why

the promotion of these objects should be barred in the case of part-heard appeals.

The second objection is equally untenable. u/s 428 of the Code of Criminal Procedure the appellate Court, if it thinks additional evidence

necessary, may take such evidence before deciding the appeal, but there is nothing in the Code of Criminal Procedure or in reason to render it

illegal or irregular for the appellate Court to dispense with such evidence if further consideration or argument leads the Court to the conclusion that

such evidence is not necessary. The Court to which an appeal is transferred for disposal, and on which the responsibility for its correct disposal

rests, is certainly not bound by any opinion as to the necessity for taking further evidence formed by the Court from which the appeal was

transferred, and which is no longer responsible for the decision of the appeal.

We dismiss the petition.