' These two Criminal Miscellaneous Applications are directed ag inst the order of the learned IVth Addl. Sessions Judge (West), Karachi, ated 18-10-1987.
2. The brief facts are, that Mr. Abdul Rahim Jan, Director-Gen ral, Recoveries, Enforcement and Investigation Department of the K.E.S.C. Kar chi, is also specially empowered by the Govt. Of Sind, with powers of First lass Magistrate. In exercise of the powers under section 190(1)(c), Cr.P.C. He ook cognizance of the offence under Section 40 of the Electricity Act, 1910, alle edly committed by respondent No, 2, and issued process for his appearance be for his Court. The respondent No, 2.
Filed Revision Application in the Sessions Court, which was disposed of under the impugned order by the learned IVth dell.
' Sessions Judge (West), Karachi, who set aside the orders of the learned Special Magistrate, directing the issuance of process.
3. During the course of arguments, it was urged by the learned counsel for the applicant, that as the Court of the learned Special Magistrate was situ ted within the territorial jurisdiction of Sessions Judge (South), Karachi, the Additional Sessions Judge (West), Karachi, had no jurisdiction under section 35, Cr.P.C. To entertain the Revision Application.
4. To appreciate the arguments it is necessary to reproduce section 43 Cr.P.C. Which reads as under: "S. 435(1). The High Court or any Sessions Judge or District Magist ate or any Sub-Divisional Magistrate empowered by the Provincial Go . In this behalf, may call for and examine the record of any proceeding be lore any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or properiety of any finding, sentence or o der recorded or passed, and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused I in confinement, that he be released on bail or on his own bond pending he examination of the record."
' Explanation.-- "All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for he purposes of this subsection and of section 437."
' In this context it is also necessary to reproduce section 408, Cr.P.C. Relevant portion is as under:- ' S. 408.
"Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any per on sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate the First Class, may appeal to the Court of Sessions."
' It may be noted, that words "situate within the local limits of its or his jurisdiction" used in section 435, Cr.P.C. Are not used in section 408, Cr.P.C.
5. The phrase "situate within its jurisdiction" came for consideration before the learned Single Judge of Madras High Court in the case of Shanmugam Chettey v. Pennappa Mudaly and others reported in 26 Madras page 137. In that case sanction was accorded by the Second Class Magistrate in the Sessions Division. Charge was framed against 'A' in the Court of First Class Magistrate in the Sessions Division of Chingleput. The order of the learned Sessions Judge South Arco revising the sanction and staying the proceedings, was declared by the High Court to be ultra vires. This question was further considered by a Division Bench of Madras High Court in the case of Valia Ambu Poduval and others v. Emperor reported in 30 Madras page 136. It was held by the Division Bench, "that the word "situate" in section 435 of Criminal Procedure Code refers to the place where the inferior Courts mentioned therein ordinarily sit. The principle laid down in section 435, Cr.P.C. In regard to provisional powers, must, in the absence of any indication to the contrary in the Code, be followed in the case of appeals under section 408". It was further held "that the Court of Sessions to which the appeals lie from the Magistrate First Class under section 408, Cr.P.C. Is the Court of Sessions within the local limit of whose jurisdiction the Court of such Magistrate ordinarily sits, whether the offence is committed within such local limits or not". This view was approved by a learned Single Judge of Lucknow Bench of Allahabad High Court in case of Shori Lal v. The State reported in AIR (39) 1952 Allahabad 193. It was held "that in absence of any statutory provision in Criminal Procedure Code the principle governing territorial jurisdiction of the Sessions Court in regard to its provisional jurisdiction must be followed in regard to the appellate jurisdiction. It was further held "where a Magistrate of First Class is authorized to try the offence committed in any part of province, appeal from the Magistrate's judgment lies to the Court of Sessions within whose jurisdiction the Headquarters of the Magistrate are ordinarily situate, whether the offence was committed within such local limit or not".
6. In the instant case the learned Special Magistrate has jurisdiction to try the case throughout all the Districts of Karachi, but his office is admittedly! Situated within the local limit of District Judge (South).
7. Karachi, originally, constituted one judicial district, which was sub- divided in 1985 in three judicial districts and has further been sub-divided in four judicial Districts from July 1988. However, the Courts/Offices of all the Sessions Judges, Additional Sessions Judges, Assistant Sessions Judges and most of the First Class Magistrates, are situated within the premises of the old Sessions Court and City Courts buildings which are located within the territorial jurisdiction of District Judge (South), Karachi.
8. If the view expressed in the above cases is accepted a very peculiar situation would be created in Karachi. The result would be, that the appeals and revisions against the orders and judgments passed by all the Assistant Sessions Judges and First Class Magistrates would lie to the Sessions Judge (South), irrespective of fact, that the offence was committed within the territorial jurisdiction of other Sessions Judges and irrespective of fact, that the trial Court is subordinate to any of the other Sessions Judges. This would also give rise to the question whether the orders so far passed in revisions and appeals by the Sessions Judges other than the Sessions Judge (South), would be without jurisdiction. This question, therefore, requires deeper consideration, especially in view of earlier decisions of Madras and Allahabad High Courts and the peculiar situation arising out of the division of judicial District of Karachi. It will be fit and proper if a larger Bench is constituted to interpret the word "situate used in section 435, Cr.P.C. And decide the following questions:-
(i) Whether revision application against the orders passed by Assistant Sessions Judges and First Class Magistrates, whose Courts are situated within the local limit of Sessions Judge (South) would lie only to Sessions Judge (South) irrespective of fact, that the alleged offence was committed in the territorial jurisdiction of some other Sessions Judge.
(ii) Whether same principle would be applicable to the appeals also?
This case may, therefore, be put up before My Lord the Chief Justice for constitution of larger Bench for the above purpose. .