the State of Uttar Pradesh v. Shawkar and Another

Judgment

THE STATE OF UTTAR PRADESH SHAWKAR AND ANOTHER (J. L. KAPUR, K. C. DAS GUPTA and R~GHUB.Ut DAYAL, JJ.) Power of Appellate Court-Conviction b11 MagiatraU- A ppeal to Sessions Court-If can direct commitment of acc~ed-­ Code of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b). The respondents were convicted by a Magistrate under s. 326 Indian Penal Code. They appea1ed to the Court of the Sessions Judge who set aside the conviction and directed the case to be committed tO the Court of Session. On revision the High Court set aside the orde~ holding that the Sessions Judge had, in an appeal against conviction, no power to direct commitment to the Court of Session. Hdd, that the words of s. 423 (1) (b) of the Code of Criminal Procedure clearly emplwered an appellate court t<> order commitment for trial to the court of Session. The power was not limited to cases exclusively triable by a court of Session. Queen Empress v. Abdul Rahiman, ( 1891) I. L. R. 16 Bom. 580;

Queen E'IDpress v . .IJLaula Baktk, ( 1893) I. L. R. 15 All. 205 and Salish Chander Das Bose v. Queen Empress, ( 1899) I. L. R. 27 Cal. I 7i, approved. CR.!MINAL APPELLATE JurusDICTION: Cr. A. No. 206/l9ti0. Appeal by special . leave from the judgment and ordei' dated September 11, 1959, of the Allahabau High Court (Lucknow Bench) at Lucknow in C~iminal Revision No. 179 of 1959. G. C. Mathur and 0. P. Lal, for the appellant. The respondent did not ·appear. 1962. February 15. The Judgment of the Colirt was delivered by KAPUR, J .. -In this appeal against the judgment and order of the High Court of .Allahabad, the Tht Slolt uf Uttar P1odt1h Shdnkar Kapur J. 214 SUPRE:IIE L'OCR'i' REl'OltTS (1962] SUPP. question of the interpretation of s. ,12:3( 1 )(b) of the Criminal Procedure Code arises. The case of the prosecution was that respondent Shankar wanted to have illicit intimacy with ?11Rt. .Mithana who was not agreeable to his ad vanecs.

In order to take his revenge he cut off her nose on January 28, l!J59. The allegation againat the other respondent Goberdhan was that he helped Shanker in foll ing her down and ca,ught her while Shankt•r cut off her nose. Both tho respondents were tried under s. 326 read with s. :J4 of the Indian Penal Code and the i\Iagistrate Ist class . found them guilty and sentenced them to rigorous imprisonment for 18 months each. An appE>al was taken against this order to the Ressions Judge, Sitapur, who on June 12, HJ59, set aside the order of convicti<m and directed the case to be committed to the Court of Session. On ,July 15, 19;)9, the J.Iagistrate committed the respondents to the court of Session to stand their trial under s. 3~6 read with s. 34 of the Indian Penal Code. A revision was taken to the High Court against the order of the Sessions Judge.

The High Court held that the crime was not only brutal but most cowardly and that the offence was of a grave nature; that the Magistrato was wrong in assuming jurisdiction in such & case and that the cutting of a woman's no8e was troatod as a trivial matter by the .Magi8tratc. The learned Judge, however, was of the opinion that a Scs8ion Judge bearing an appeal against conviction had no power to direct commitment to the court of Session; all that he could do was to recommend enhancement of the sentence but it was not worthwhile enhancing tho sent.enc" because tho enhancement could only Le from 18 months to two years. He thereforo allowed the revision and set aHide the order of tho Ses:;ions Judge aud directed that the appeal be reheard on merits. .Against thi~ order the State has come in appeal to this Court Ly Special Leave. It m:i,y be mentioned that on an application made to ·the learned Judge under s.

561A Criminal Procedure Code, the learned Judge, after referring to several decided cases, was still of the opinion that his previous order was correct and he declined to give a certificate under Art. 134(1) (c) and the State has come in appeal by Special Leave. It is not necessary to decide the question whether the application under s.561 A was entertainable in the circumstances of the care. Section 423 of the Criminal Procedure Code deals with the power of the Appellate Court in disposing of appeals against convictions. The relevant portion of the section is contained in cl.(b) of sub-s.(l) of that section which is as followsi- S. "423 ( 1) The Appell:ite Court shall then send for the record of the case, if such record is not already in Court.

After perusing such record and hearing tbe appellant or his pleader, if he appears and the Public Prosecutor if he appears, and, in case of an appeal under section 411A, sub-section (2). or section 417 the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) ..................................... : ................ . (b) in an appeal from a conviction, (1) reverse the finding and sentence, and · acquit or discharge the accused, or order . him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without .altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without Tht Stale of Uttar Pradesh Shankar Kapur J. 19i2 T11e s1.1, •I Utt•r l)rWsh Sli1n/;u 2i6 SUPRE~IE COURT REPORTS [1962]

SUPP. altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance tho same". The Code .eipressly gives the power t.o the Appellate Court to dismiss the appeal, to acquit or discharge the accusc<l or order him to be retried or committe<l for trial. Therefore the section does empower the Appellate Court to order oommitment for trial to tho Court of Session. The Court~ in India havo almost unanimously held that to be the interpretation of the section. In Queen Empress v. Abd·ul Rahinwn (')whore tho circumstances were almost similar as tho one in tho present case, it was held that s. 423( b) which is the oorresponding section of tho Code of 1882 empowered an Appellate Court to order an accused person to be committed for trial. That was aleo the view of the Allahabad High Court in Queen Einpre,.~s v . . Maula Baksh.(') In an earlier case Qua>n Empres8 v. Suk!UJ('), All1ihabad High Court held that under s.

42:~ of the Code a commitment could bo ordered only when an offence wa1:1 exclusively triable by a court of ::ie~ion. That view wao overruled in the later Allahabad caso Q·ueen Empress v. Maula Baksh(') and was not accepted in the Bombay case above quoted. It is not necessary to refer to c&&es decided by other Courts where it ha~ been held that the power to order commitment under s. 423(1) (b) is not limited to cases exclusively triable by the court of Session. In Satish Chander U"'8 Bose v. Queen Empress(') and other c&Sea of the High Court ol Alla.ha.bad the earlier view in Suklw:B case was not accepted. In our opinion the words of s. 423 (I) (b) of the Code a.re quite clear and the power of the (I) (1891) I. L. R. 16. Bom. 58-0. (3) (1885) I. L. R. 8. AIL 14. (2) [1893] l. I.. R. 15 All. 205. (4) (1899) l.L.R. 27 DJ. 172. 217, Appellate Court to commit is not ci.rcumscribed to oases oxclusively triable b5 a court of Session and the High Court was in error in taking a contrary view.

We therefore allow this appeal, set aside the order of the High Court and restore that of the Sessions J utlge. Appwl allowed. BALJEET SINGH & OTHERS RISAL SINGH & OTHERS (B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR RAGHUBAR DAY.AL, JJ.) and Civil Procedure-Res judicata-Twelve suits against four sets of defenda .. ts-Decreed by common judgment-Twelve app<als- Appeals by one set of defendants dismissed for default-Whether other appeals barred-Appeals to Supreme Court-Consolidation Operations-If make appeals infructuous-U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954). K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under s. 175 U. P. ~renancy. Act, 1939. Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees wCre prepared and the defendants preferred twelve appeals to the Additional Commissioner.

Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1~55, special leave was granted. In July 1954, the villages in which the lands in suit were situate came under consolidation operations onder the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification 19!2 T/,, 81atnf Uttar Pradesh Shonk., K•ftur J.