The main legal point established in the judgment is that the construction and effect of Section 409(2) of the Code of Criminal Procedure restrict the jurisdiction of Additional Sessions Judges and Assistant Sessions Judges, and the judgment and order of the Additional Sessions Judge, being without jurisdiction, is a nullity.

( 1 ) 1. This is a complainants appeal under Section 417, Sub-section (3) of the Code of Criminal Procedure (hereinafter mentioned as the Code) against the acquittal of respondents 1 to 7 by the lower appellate court and raises an important question of law as to the construction and effect of Section 409, Sub-section (2) of the Code.

( 2 ) THE material facts are briefly these : Respondents 1 to 7 were convicted and sentenced in C. C. No. 124 of 1956 on the file of the Judicial First Class Magistrate, Parvathipur, for certain offences punishable under Section 494, Indian Penal Code. They appealed to the Court of Sessions, Visakhapatnam, and the appeal was admitted by the Sessions Judge as Criminal Appeal No. 387 of 1956. Before the appeal came on for hearing, the Sessions Judge who was also the District Judge, Sri B. T. M. Raghavacharyulu, died on 3/01/1957. The State Government appointed Sri K. Jagannatha Rao on 15/02/1957, to act as District and Sessions Judge in the vacancy and be assumed charge of the office on 27/02/1957. Meanwhile on 8/01/1957, the High Court permitted the Additional District and Sessions Judge, Visakhapatnam Sri W. V. V. Sundara Rao, to perform the current duties of the office of the District. Judge of Visakhapatnam. On 8/02/1957, Sri W. V. V. Sundara Rao passed an order making over Criminal Appeal No. 387 of 1957 to himself, being apparently under an erroneous impression that he could assume the powers of the Sessions Judge under Section 409 (2) of the Code. He heard the appeal on the same day and delivered judgment on 21/02/1957, acquitting respondents 1 to 7.

( 3 ) IT is common ground that Sri W. V. V. Sundara Rao was not appointed Sessions Judge for the Court under Section 9 (1) of the Code and that he had, therefore, no power under Section 409 (2) to make over the appeal for being beard by himself as Additional Sessions Judge. It is also not disputed that the complainant raised no point of jurisdiction at the hearing before the learned Additional Sessions Judge and objected to his jurisdiction for the first time only in this Court. The question for decision is whether, in these circumstances, the judgment of acquittal is liable to be set aside in law or is a nullity.

( 4 ) I may refer at this stage to the material portions of Sees. 408 and 409 of the Code (as amended by Act XXVI of 1955) which read as follows:"section 408 : Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate. . . . . may appeal to the Court of Session. * * * * * "section 409 : (1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions or by an Additional Sessions Judge or an Assistant Sessions Judge: Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by any Magistrate of second or third class. (2) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him. "the words of Section 409 (2) are plain and emphatic. They enjoin on Additional Sessions Judges and Assistant Sessions Judges to hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to them. The word only conveys by necessary implication that they are prohibited from hearing other appeals filed in the Court of Session. In the case of Assistant Sessions Judge, there is a further limitation under proviso to Sub-section (1) on their powers, namely that they cannot hear any appeal unless it is of a person convicted on a trial held by a Magistrate of the Second or Third Class.

( 5 ) THE first question that arises for consideration is whether Section 409 (2) is a provision affecting the jurisdiction of Additional Sessions J