Narendran, J.

1. A learned Judge of this Court doubted the correctness of the decision of this Court in Gopalan v. State of Kerala (1981 KLT 890) and hence referred these cases to a larger Bench. In the above case, Bhat, J. speaking for the Court has held that a revision will lie to a Court of Session from the decision of a Chief Judicial Magistrate or an Assistant Sessions Judge in an appeal from a conviction of the Magistrate of the Second Class tiled before the Court of Session but made over to him by the Court of Session. It is seen from the reference order that the Supreme Court decision in Roopchand v. State of Punjab (: AIR 1963 SC 1503 [LQ/SC/1962/332] ) was not brought to the notice of the Bench which decided Gopalans case (1981 KLT 890) and that was also one of the reasons for making the reference. In Roopchands case (: AIR 1963 SC 1503 [LQ/SC/1962/332] ) what the Supreme Court has held is that the State Government which delegated their powers under section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 to an officer cannot thereafter interfere with the order passed by him, in exercise of the revisional powers they have under section 42 of the. The Supreme Court held:

In this case the power is created by S. 21 (4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the enables the Government to delegate its powers but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills J. said in Huth v. Clarks, (1890) 25 Q.B.D. 391 that the word delegate means little more than an agent. An agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under S. 41(1) of the power of the Government under S. 21(4), is for the purposes of the, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government-and of course it had to be one or the other-then we would have an order made by a person on whom the did not confer any power to make it. That would be an impossible situation." (Para 12)

It is clear from section 381 of the Code of Criminal Procedure 1973 that no question of delegation arises in a case where a court of session makes over an appeal to a Chief Judicial Magistrate or an Assistant Sessions Judge as both have powers to hear and dispose of the appeal. So, the above Supreme Court decision is not applicable to the facts of these cases.

2. In this case, the appeal against the conviction and sentence of the Magistrate of the Second Class was filed before the court of session. The court of session made over the same to the Chief-Judicial Magistrate who dismissed the appeal and confirmed the conviction and sentence. The accused challenged that decision in revision before the court of session and that revision was disposed of by the Additional Sessions Judge, acquitting the accused. It is the above acquittal that has been challenged in these cases. The point raised is whether the court of session before which only an appeal from a conviction of the Magistrate of the Second Class can be filed, can entertain a revision from the decision of the Chief Judicial Magistrate to whom the appeal was made over. A combined reading of sections 374 (appeals from convictions), 381 (appeal to court of session how heard), and 397 (calling for records to exercise the powers of revision of the Code of Criminal Procedure 1973, for short the Code, will make matters clear. The position is: An appeal against a conviction entered by a Magistrate of the Second Class can be heard and disposed by the Assistant Sessions Judge or the Chief Judicial Magistrate. But the appeal can be filed only before the court of session. The court of session can itself hear the appeal or make it over to the Assistant Sessions Judge or the Chief Judicial Magistrate. The Assistant Sessions Judge or the Chief Judicial Magistrate, as the case may be, is disposing of the appeal in exercise of the power vested in him under the proviso to section 381(1) of the Code. Hence no question of delegation arises in making over the case under section 381(2) because delegation is conferring ones powers upon some one else who, without that, will have no powers in the matter. Under section 397, the court of session has revisional powers over the orders of all inferior criminal courts within its local jurisdiction. It goes without saying that the Chief Judicial Magistrate is inferior to Session Judge in the exercise of revisional jurisdiction under section 397. This is also made clear by the Explanation to the subsection. So, it is simple arithmetic that a revision lies to the court of session from the decision of the Chief Judicial Magistrate in an appeal made over to him by that court. We are in respectful agreement with the decision of the Division Bench in Gopalans case (1981 KLT 890). That decision does not require reconsideration. The reference is answered accordingly. The cases will have to go before a Single Bench for hearing and disposal.