Revisional jurisdiction of Session Judge/District Magistrate.

Balappa and Gangappa were convicted of an offence under section 66-B of the Bombay Prohibition Act in Criminal Cases Nos. 883 and 884 of 1958 respectively on the ground that each of them had been found in possession of illicit liquor on 30th October, 1958 and sentenced to simple imprisonment for one day and to pay a fine of Rs. 100. Each of them preferred an appeal to the Court of the Sessions Judge, Dharwar; they are Criminal Appeals Nos. 70 and 71 of 1959: both the appeals were filed beyond time, the delay being nineteen days: each of them filed an application under section 5 of the Limitation Act for condonation of the delay on the ground that he belonged to a backward community and was ignorant of the law and procedure relating to the preferring of appeals. Relying on. the decision Janakiramayya v Brahmayya1 as indicating the proper procedure in such cases, the learned Judge has submitted the papers in the two cases to this Court for exercising its revisional powers.

The learned Judge appears to proceed on the assumption that the above decision lays down that if the appellate Court is not satisfied about the existence of sufficient cause for not preferring the appeal within the prescribed period, the situation as a matter of course, calls for the exercise of the revisional powers of the High Court; for, after holding that he was not satisfied that the delay should be excused all that he says is:

“In view of the decisions of Janakiramayya v. Brahmayya1, where the proper procedure in such cases has been pointed out, I am submitting these papers to the High Court to exercise its. powers of revision.”

The report of the case referred to by the learned Judge shows that in that case the accused had been convicted of theft and, on appeal, the appellate Court, though not satisfied that the appellant had sufficient cause for not preferring the appeal in time had entertained and heard the appeal and acquitted the accused. The complainant approached the High Court in revision. The High Court held that, in such circumstances, the appellate Court had no authority to extend the period and admit the appeal and that the proper procedure would have been to move the High Court to exercise its powers of revision. At the same time, it refused to interfere with the acquittal on the ground that there had been no gross miscarriage of justice which ought to be remedied. It is no doubt true that beyond stating that when there is no ground for extending the period in admitting the appeal the proper procedure was to move the High Court for exercising its powers of revision, the learned Judges do not say in specific terms whether in all such cases the High Court should be moved. But the circumstances seem to indicate that what the learned Judges had in mind was that when the appellate Court finds that it cannot entertain the appeal as it is barred by limitation but nevertheless it thinks that the decision of the Court below calls interference it cannot itself deal with the matter but must report the matter for the orders of the High Court. It is clear from the circumstances of that case that the appellate Court on going into the merits of the case was satisfied that the conviction could not stand and therefore it acquitted the accused. But as it had no jurisdiction to entertain the appeal in view of its own finding that there was no sufficient cause for condoning the delay in the presentation of the appeal it acted beyond its powers in deciding the appeal. It would appear that, in these circumstances, the High Court thought that as the appellate Judge was clearly of the view that the decision of the Court below could not be sustained and as he himself had no powers to deal finally with the matter, the proper course for him to take was to report the matter to the High Court.

It is hardly necessary to say that when an appeal is found to be barred by limitation and there is no sufficient cause for condoning the delay the only result that can follow