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Janardan Sarvottam Rao Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 575 of 1974
Judge
Reported in(1976)78BOMLR380
AppellantJanardan Sarvottam Rao
RespondentThe State of Maharashtra
DispositionAppeal dismissed
Excerpt:
criminal procedure code (ii of 1974), sections 377, 386, 397, 399, 401(1), 484(2)(a)-criminal procedure code (v of 1898), sections 435, 436-general clauses act (x of 1897), section 6-in respect of a prosecution launched and cognisance taken much before the coming into force of the new criminal procedure code, 1973, what procedural code, whether the old (of 1898) or new (of 1973) will govern not only the hearing of the case but its ultimate disposal including all appellate and revisional proceedings which can arise subsequent to the decision of the trial-even assuming that the new code applied, whether the sessions judge had power to enhance the sentence or the high court alone could enhance the sentence.;cognisance of an offence under the prevention of food adulteration act, 1954, was.....deshmukh, j.1. this is a revision application by original accused no. 1. the petitioner-accused no. 1 was admittedly in charge of a state transport canteen at atit in satara district, which was run by his father at the time of the commission of the present offence. while the father was away to south kanara, the petitioner was in charge of the canteen on june 15, 1973 and at least a fortnight before that. the food inspector took sample of a sweet called ' bundi ladu'. after performing the necessary formalities, he sent the sample to the public analyst for his examination and report. the sample was found to be adulteration inasmuch as coal tar dye was used as a colouring material. on these facts the prosecution was launched against accused no. 1 and his father accused no. 2. after.....
Judgment:

Deshmukh, J.

1. This is a revision application by original accused No. 1. The petitioner-accused No. 1 was admittedly in charge of a State Transport Canteen at Atit in Satara District, which was run by his father at the time of the commission of the present offence. While the father was away to South Kanara, the petitioner was in charge of the canteen on June 15, 1973 and at least a fortnight before that. The food inspector took sample of a sweet called ' Bundi Ladu'. After performing the necessary formalities, he sent the sample to the public analyst for his examination and report. The sample was found to be Adulteration inasmuch as coal tar dye was used as a colouring material. On these facts the prosecution was launched against accused No. 1 and his father accused No. 2. After contesting the case for some time, accused No. 1 pleaded guilty to the charge. The learned Magistrate, accepted the plea of guilty at that stage and convicted the accused under Section 16(7)(a)(i) of the Prevention of Food Adulteration Act, 1954. He sentenced him to suffer S.I. till the rising of the Court and to pay a fine of Rs. 1,000 or in default to suffer S.I. for a period of three months. Fine was immediately paid. The father, who was away from Atit, was acquitted.

2. When this matter came to the 'knowledge of the Sessions Judge, Satara, 'from a newspaper report, ho sent for the records of the case under the powers of revision under Section 397 of the Criminal Procedure Code, 1973 (hereinafter re- ferred to as the 'new Code'). After issuing notice to the accused and after hearing the prosecutor, as well as the accused the learned Sessions Judge by a long order revised the sentence as he found that the order of sentence by the Magistrate was not legal and not in consonance with the provisions of the Prevention of Food Adulteration Act. He considered several aspects of the matter including the benefit to be given under the Probation of Offenders Act and ultimately found that the facts of the case required that the minimum sentence required to be imposed under the provisions of the Prevention of Food Adulteration Act must be imposed upon the present accused. Accordingly he sentenced him to suffer R.I. for six months and a fine of Its. 1,000 in default to suffer further R.I. for three months. Being aggrieved by that order, the present revision application has been filed by the accused.

3. When this revision application came for hearing before the learned single Judge of this Court (Rege J.) he found that two important points of law are being raised which require consideration by a larger Bench. He therefore indicated the points by a short order dated March 14, 1975 and referred the revision application itself to a larger Bench. Hence we are hearing this revision application.

4. The first point raised is whether in respect of a prosecution launched and cognisance taken much before the coming into force of the new Code, what procedural Code, whether old or new will govern not only the hearing of this case but its ultimate disposal including all appellate and revisional proceedings which can arise subsequent to the decision of the trial. In fact, according to the petitioner, to a prosecution of this type the old Code applies and not the new Code, even in the matter of exercising revisional jurisdiction. The corollary of this proposition is that in that case under the old Code the Sessions Judge had no power to enhance the sentence but he could at best make a report to the High Court. The second point raised is that even assuming that the new Code applied, the Sessions Judge had no power to enhance the sentence and on a true construction of Sub-section (2) of Section 399 read with Sub-section (7) of Section 401 and further read with Section 386 of the new Code, it is the High Court alone that can enhance the sentence and not the Sessions Judge.

5. At the very outset, we will make it clear that a Division Bench of this Court has already taken a view that no party has a right to move the High Court by way of a revision application and such a right did not exist even under the old Code. Since moving the higher Court by way of a revision application was a matter of customary development and no right ever existed, the old Code would not be applicable when the High Court or the higher Court is invited to exercise its revisional power after April 1, 1974. According to the judgment in Suraj Prakash v. Gurnani (1974) 11 Bom. L.R. 458 it is the new Code that will govern the revisional application and not the old one since the revision application was filed after April 1, 1974.

6. Mr. Rane, learned advocate for the petitioner, made a strenuous effort to tell us that there was no difference between the nature of jurisdiction of the High Court while exercising appellate powers or revisional powers. It may be that filing an appeal when provided for, may be a right of the parties but moving the Court by way of a revision application may not be the right of the party. However, when the High Court is entertaining an appeal or a revision application it is exercising its correctional jurisdiction with regard to the orders and decisions made by the lower Courts. The nature of interference in appeal and the nature of interference in a revision application may differ. However, essentially the same type of jurisdiction is being exercised. It appears that the revisional jurisdiction is nothing but an exercise of an appellate jurisdiction. He drew our attention to certain observations of the Supreme Court in Shankar Bamehandra y. Krishnaji (1900) 72 Bom. L.R. 170, S.C. On page 182 of the. report the Supreme Court states that in the view of their Lordships of the Privy Council the revisional jurisdiction was a part and parcel of the appellate jurisdiction of the High Court. Such observations were made by the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (1932) 34 Bom. L.R. l065; p.c. and they are quoted with approval by the Supreme Court in Shankar's case. Mr. Kane, therefore, argued that even though, moving the High Court by way of a revision application may or may not be a right of the party when the High Court chose to exercise its power of revision which was practically exercising its powers under the appellate jurisdiction. That being the legal position a forum provided for appeal would be relevant for the purpose of considering whether the provisions of old Code or the new Code are attracted to the facts and circumstances of the case.

7. Though such a discussion is not to be found in the earlier judgment of the division Bench of this Court, it seems to be necessary to consider, which of the Codes applies in order to ascertain whether the Sessions Judge who seems to have been granted the powers of enhancing' sentence in revision for the first time under the new Code can exercise those powers in a ease of the present type. Before the division Bench of this Court dealing with Suraj Prakash's case, the question was whether a revision application in respect of a certain order passed in a pending criminal trial could be entertained at all in view of Sub-section (2) of Section 317 of the new Code. If the new Code applied the revision application did not lie at all as it was against an interlocutory order. 'We are not concerned in this case with an interlocutory order. The criminal trial was filially concluded by the Magistrate and neither the accused had gone in appeal nor had the State Government preferred any appeal with respect to the enhancement of the sentence. This was a suo motu action by the learned Sessions Judge, Satara. It is difficult to doubt that he had the right to entertain the revision application. The only doubt that is being raised is with regard to his power regarding the final disposal which is within his competence if the new Code applies. We are therefore pointedly required to consider as to what are the further forums available after the final disposal of a criminal trial of which cognisance was taken by a Magistrate before April 1, 1974, but in respect of which a further remedy is required to be pursued after April 1, 1974.

8. So far as the present accused is concerned there is no doubt that cognisance was taken by the Magistrate on December 3, 1973 much before the new Code came into force. Charge was framed on April 8, 1974 and the ease concluded on the admission of the accused on June 15, 1974. The trial of the accused was undoubtedly a pending trial on April 1, 1974 when the new Code came into force. As it was a trial which was pending on April 1, 1974 it was not being doubted that the trial could be held and disposed of according to the provisions of the old Code. That has actually been done. According to Mr. Kane since this was the case which was pending on April 1, 1974 when the new Code came into force, on a proper construction of Section 484(2)(a) not only the trial had to be concluded under the old Code but if further remedies were to be pursued by the parties or any suo motu action was to be taken by the Court it could only be under the provisions of the old Code and not the new Code. Very briefly put his argument is that in spite of the repeal of the old Code and the coming into force of the new Code as from April 1, 1974; in respect of cases which were pending- on April 1, 1974 the old Code was deemed to be applicable until those erases were finally disposed of, including all possible remedies till the last Court. For all these proceedings the old Code would apply as it was expressly kept alive for that purpose by the provisions of Clause (a) of Sub-section (2) of Section 484 of the new Code. He places reliance for this purpose upon a Full Bench decision of the Gujarat High Court in Hiralal Nansa Bhavsar v. The State (1974) 15 Guj. L.R. 725, F.B and a single Judge decision of this Court in Anil N. Shah v. The State of Maharashtra (1075) Criminal Appeal No. 547 of 1975 (with Criminal Appeal No. 301 of 1973), decided by Dighe J., on April 17, 1075 (Unrep.).

9. If this argument could be accepted, even revising the order of the Magistrate ought to be done by the High Court and not by the Sessions Judge as that was so provided by the old Code. We would therefore examine in the first instance as to what is the real meaning of Section 484(2)(a) of the new Code and how matters which were pending in several criminal Courts on April 1, 1974 are to be further carried arid disposed of.

10. The main argument on behalf of the petitioner by Mr. Kane is that the right of appeal is a vested right and once that right is conferred by a statute it cannot be taken away unless by express words or by necessary implication by a subsequently made legislation. The provisions of Section 484 of the new Code do not expressly take away that right nor is that right taken away by necessary intedment. The right of appeal also includes the right of approaching a particular higher tribunal as provided by the existing law when cognisance of an offence is taken by an appropriate Magistrate. If instead of a higher tribunal, an appellate Court of lower status is provided to which appeal is made to lie, in the eyes of law, it amounts to abolition of the right of appeal so far as that right as originally bestowed upon the party was concerned. The same principle should apply, according to Mr. Kane, where the powers of revision are to be exercised. Under the old Code the Sessions Judge had merely the Power to call for the record and proceedings and examine it for the purpose of satisfying himself with regard to the legality, propriety or procedural correctness of a proceeding, That was his power under Section 435 of the old Code. If, however, the Sessions Judge felt that there was an error committed and needed rectification he was merely to make a reference to the High Court indicating what error is committed and what rectification is needed. It was for the High Court to consider the reference, after notice to the accused as to whether the reference should be accepted or rejected. The effective exercise of authority or the interference with the orders passed by the lower Courts so as to make them adverse to the accused was the function of the High Court alone. Under the new Code, the same function prima facie appears to have been transferred to the Sessions Court, and the High Court and the Sessions Court appear to be two parallel authorities vested with the same jurisdiction. This is a denial of original right of revision and to that extent the. analogy of the abolition of appellate jurisdiction would be available. He relied upon the judgment of the Privy Council in the case of Colonial Sugar Refining Co. v. Irving [1905] A.C. 809 This judgment has also been relied upon by the Gujarat High Court while giving- its Full Bench decision and this judgment along with the observations of the Gujarat High Court have been relied upon by the learned single Judge of this Court in deciding Anil JV. Shah v. The State of Maharashtra.

11. Without referring to these judgments which have expressed some view with regard to the real meaning of Section 484 of the new Code, we would like to examine the points raised and find out what is the real intent of the Parliament. The principles to be borne in mind while examining these provisions do not seem to be in doubt. To state them briefly it would appear that a right of appeal in any proceedings civil or criminal is not a natural right. It is purely a creation of statute. However, once a statute creates a right of appeal and nominates a forum of appeal it becomes a vested right. It is no more a mere procedural matter. Such a right is available to the parties so far as the litigation commences effectively while that procedure is in vogue and it seems to be the right available to the party from the inception of the litigation until its final termination. In other words, if certain hierarchy of Courts is provided for the purpose of filing appeals and a civil or criminal matter commenced under that procedural Code, the right of the parties to the litigation are determined at the inception thereof. They are prima facie, entitled to approach all the higher tribunals as provided by the then law. It is equally clear and undisputed that the right of appeal being a creature of law it is competent to the Legislature to take it away or to modify the same. However, this has to be done by an express provision or by necessary intendment. Without an express provision or a necessary intendment an inference in favour of modification or abolition of a right of appeal is not to he lightly drawn. This has been clearly stated by the Privy Council in the earlier referred case of Colonial Sugar Refining 'Compaww and the Supreme Court of India has also quoted this case with approval in Garikapati v. Subhash Choudhry : [1957]1SCR488 . This principle being well-established is not much in doubt. It is not necessary to continue the discussion any longer. Accepting this as the correct approach we will have to find out what precisely has been done by the Legislature while introducing the new Code and while repealing the old Code by the provisions of Section 484. The provisions of Section 484 of the new Code are as follows:

484. (1) The Code of Criminal Procedure, 1898, is hereby repealed.

(2) Notwithstanding such repeal,-

(a) if, immediately before the date on which this Code comes into force, there if any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;(b) all notifications published, proclamations issued, powers conferred, forms pre scribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code;

(c) any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent;

(d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution.

(3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding, to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in this Code for the extension of time.

12. The Legislature was fully aware of the provisions of Section 6 of the General Clauses Act, 1897, and with that consciousness they have chosen appropriate language for the. purpose of expressing their intention. There is no doubt that the Code of Criminal Procedure, 1898 is wholly repealed as from April 1, 1974. If Sub-section (7) of Section 484 of the new Code was the only provision made in that Code the provisions of the General Clauses Act would have been automatically attracted and several consequences which are supposed to follow in spite of repeal of that Code is provided by that Act would have followed.

13. Considering the provisions of Sub-section (2) of Section 484 it would appear that the Legislature expressly pointed out certain consequences that should follow notwithstanding the repeal of the old Code. Clause (a) of Sub-section (2) deals with an important topic relating to all pending matters which may have reached different stages by the time the abolition of the old Code takes place. If we start from the top and go to the bottom in the manner in which the Legislature has used several expressions denoting various stages at which criminal matters lie under the old Code, it would appear that care is taken to indicate the fate that should follow in the cases of pending appeals, applications, trials, inquiries or investigations. These five expressions used by the Legislature, viz. appeals, application, trial, inquiry or investigation seem to comprehend within themselves all possible stages of criminal proceedings. Any matter would normally start with the investigation if a public authority is making investigation and would lead progressively to inquiry, trial or appeal. It may be that in certain respects an application is presented to the Court for an appropriate relief and that application has got to be considered and disposed of. The Legislature has not only described all pending matters but has taken care to designate them by distinct names so as to cover all possible pending matters. The language of Clause (1) of Sub-section (2) of Section 484 thus becomes important. The opening sentence of that clause says that if immediately before the date on which the new Code comes into force there is any appeal, application, trial, inquiry or investigation pending; then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 3898, as in force immediately before such commencement (hereinafter referred to as the old Code) as if the new Code had not come into force.

14. Pausing here for a minute let us analyse what the Legislature has done today in respect of pending criminal matters. The first thing that the Legislature has done is not to refer in a general manner by common expression to all the pending matters irrespective of their stages. That could have been done if a particular common course was to be indicated in respect of all the pending matters irrespective of their stages. The Legislature has therefore defined them not in a general manner but by specific description by calling them, appeals, applications, trials, inquiries or investigation. This is the first thing which the Legislature did. Describing' them as pending matters it has again equally specifically pointed out what should happen to such appeals or such applications, such trials, such inquiries or such investigations. The expression 'such' used before all these five expressions indicates that each one of them is specifically referred to for the purpose of indicating what should happen to that particular matter, if it was pending on the date the new Code came into force. The Legislature then points out, by again using different verbs that they should be disposed of, continued, held or made as the ease may be in accordance with the provisions of the old Code. It is therefore dear that what is suggested is that a pending appeal is to be 'disposed of, a pending application is to be 'continued', a pending trial is to be 'held' and a pending inquiry or investigation is to be 'made', as the ease may be in accordance with the provisions of the old Code as if the new Code had not come into force. It would not require much mental exercise to note that investigation and inquiry can lead to trials and the decisions of trials to appeals as the- procedural Code might provide. These are the distinct stages of a criminal litigation and the Legislature is fully aware of them. They provide for the continuance of the pending criminal litigation from its various stages to the termination of that stage only under the old Code as if the new Code had not, come into force. If by express provision the Legislature indicates that a pending appeal be disposed of under the old Code or a pending trial be held under the old Code or a pending inquiry or investigation be made under the old Code, it appears to us that this use of the language by the Legislature must be given its full effect.

15. The old Code, which was repealed as a whole by Sub-section (7) of Section 484 of the new Code, is kept alive notwithstanding such repeal for a specific purpose and that purpose is being described by Sub-section (2) of Section 484. That being so, the express language of the Legislature will have to be construed by giving it the full meaning it deserves. if the old Code is so kept alive in respect of a pending trial only for the purpose of holding it and the trial is held under the pro-visions'of the old Code, the intention of the Legislature as per the express language must be deemed to have been carried out, Only the holding of trial under the old Code was provided and nothing more. If as a result of the trial, the convicted accused wants to file an appeal or against an order of acquittal the State wants to file an appeal, the old Code does not seem to be available as the very purpose for which the old Code was kept alive was over in terms of the express language of Clause (ft) of Sub-section (2) of Section 484. This does not mean that nothing can be done either by the accused after conviction or by State after the order of acquittal. The parties then have to look to the new Code. If the new Code had no remedy at all by way of an appeal, then it could be said that the right of appeal is abolished altogether and nothing further could be done by either side. If, however, the new Code incorporates the right of an appeal to the accused as well as to the State, it is that right under the new Code which would become relevant as the function of the old Code as was kept alive for a specific purpose was over by holding of the trail.

16. We have discussed the question of trial because, after trial would normally follow an appeal by either of the sides. In principle however an approach would be available to every type of litigation irrespective of its stage. If for a pending appeal the Code is kept alive, only for the disposal thereof, how would the provisions operate? If that pending appeal was already on the file of the Supreme Court it would have been disposed of according to the old procedural Code. If the appeal was pending in the High Court the High Court would have to dispose it of according to the old Code. In the same way if the appeal was pending in the Sessions Court the disposal thereof would be governed by the old Code. Once the appeal is so disposed of by either of the Courts on whose file it was pending, the further remedy by the parties to that appeal would be governed by the new Code and not the old Code.

17. Mr. Rane argued that the intention of the Legislature seems to be to allow the parties to agitate, their claim under the old Code until every pending matter is finally disposed of by resorting to all remedies available under the old Code. This should be so, according to him, because the right of appeal as well as the forum of appeal is determined when a Us starts. In the case of civil matters the Us would start when a claim is filed or launched and in a criminal matter the Us may start when the Magistrate takes cognisance of the offence. On the day when such cognisance is taken so far as the criminal matters are concerned, the vested right arises in respect of all appeals which may have been provided by law then in existence.

18. So far as the broad proposition of law is concerned it is difficult to quarrel with it. In fact we have already pointed out earlier before the present discussion started that these principles are well-settled and have been recognised, as the Privy Council says from the days of Coke. Since the Supreme Court of India has also accepted that approach it will have to be assumed that the remedy by way of an appeal is a vested right of the party and that right includes in it a right to approach a particular higher tribunal. Since it is clear that, the Legislature has a right to take away this right of appeal it is equally clear that the Legislature can take away this right of appeal or modify it but the requirement is that this must be done either by express language or necessary intendment. In our view the effort of the Legislature in describing pending litigation by its various classification by reference to stages and the further endeavour to point out that take termination of a particular stage alone be completed under the old Code, as if the new Code had not come into force, makes it, expressly clear that the substantive rights under the then existing law were confined to further procedure as indicated in Clause (a) of Sub-section (2) of Section 484 and no more. Once the specific stage for which the old Code was specifically kept alive is over, it would follow that parties to the litigation will have to look to the new procedural Code and avail themselves of such remedies as are available under that Code.

19. The provisions of Clause (a) of Sub-section (2) of Section 484 can also be looked at from a slightly different point of view. Mr. Rane argued that the Legislature does not say in so many words that after the disposal of the appeal or the continuance of the application or the holding of the trial or making an inquiry or investigation, the old Code will not be further available to the parties and therefore this is not a negation of the right of the parties by express provision. It is at least possible to say that being conscious of the various types of criminal matters that must be pending at various stages, the Legislature deliberately provided by express language the manner in which the old Code shall be available while dealing with the pending matters. If the old Code is expressly made available only upto a certain stage and not beyond, it would mean that it is by express language or necessary intendment that the Legislature wants to suggest that beyond that stage the old Code is not going to be available to the litigants. In our view, the language is quite clear but even if some doubt were to be entertained in that behalf, there is undoubtedly a clear necessary indication that upto a certain stage only the old Code would be available for the further continuance and disposal of the pending litigation. It obviously follows that once that purpose is over as the old Code is no more in existence, the further continuance of the litigation beyond that stage would be governed by the provisions of the new Code.

20. We may in this behalf refer with some advantage to the proviso to Clause (a) of Sub-section (2) which is under discussion. This proviso says that every inquiry under chap. XVIII of the old Code which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code (i.e. new Code). Chapter XVIII of the old Code deals with inquiry into cases triable by the Court of Session or High Court. Those are the committal proceedings. As the Magistrate ha# merely a right to enquire and commit the case for trial to the Court of Session, if he is otherwise non-able to dispose of the case for want of any evidence, the very inquiry under chap. XVIII though pending- is directed to be held under the new Code. If once the committal, order comes to be disposed of under the new Code it stands to reason that the further trial by the Court of Session would obviously be under the new Code. In other words in respect of inquiries under chap. XVIII of the old Code, the provisions of the new Code have been fully made retrospective. When it comes to other pending matters than inquiries under chap. XVIII, the old Code is retained for the termination of that proceeding with respect to the stage alone at which it was pending. Once that stage is over the new Code applies, which means that there is limited retrospective operation of the new Code with respect to other pending matters as compared to the fuller retrospective effect given to the inquiry covered by chap. XVIII of the old Code.

21. Whether one looks at the main body of the Clause (a) or to the proviso thereof, the language seems to be quite clear and the intention of the Legislature is un mistakably express so as to suggest the point of time and the stage at which the old Code should cease to operate and the new Code should take over the further stages of the pending criminal litigation.

22. Mr. Rane argued that Clause (a) of Sub-section (2) deals with certain specific matters but does not deal with the further progress of those matters after they are dealt with in the manner indicated by that clause. He thinks that this is an argument in favour of pointing out that the operation of the new Code is not retrospective but it is prospective and all pending matters have got to be disposed of till their final termination under the provisions of the old Code. We think that the import of the provisions is precisely the reverse. If it is accepted that the Legislature is dealing with several stages in a specific manner and has equally clearly indicated to what further stages the old Code should apply, it is difficult to accept that the Legislature will further add an expression 'no further. The Legislature expresses itself clearly in the minimum Words and superfluous expressions are always avoided. If it is admitted that there is a specific reference to a certain stage being dealt with under the old Code for which that old Code is kept alive, it is equally clear that Sub-section (1) of Section 484 will thereafter take care of the situation. In the absence of any such provisions Section 6 of the General Clauses Act, 1897, would have come into operation. That section, however, has very important catch words, viz. 'unless different intention appears'. One has to go to Section 6 of the General Clauses Act only where the repealing provisions do not indicate their own intention. If there is a different intention already expressed, it is that intention and not the provision of Section 6 of the General Clauses Act that would become relevant.

23. Looked at from this point of view, the intention is being expressed by suggesting how far the old Code would be available in respect of pending matters and if that stage is covered under the provisions of the old Code any further stage of that litigation must be carried forward under the new Code and not the old one. Bearing in mind the principles which we have discussed above which apply to such situation, we are clearly of the opinion that in view of the express language of Sub-section (2)(a) of Section 484 there is hardly any scope to take a view that for all pending matters until their final disposal takes place by resorting to lawful appellate remedies upto the Supreme Court, the old Code would still be available to the litigants. On the contrary upto a certain stage of a pending litigation which is specifically described by its designation the Legislature has limited the use of the old Code and that being 'the- different intention' of the Legislature in terms of the provisions of Section 6 of the General Clauses Act, 1897, it is that intention which must prevail. We are unable to accept the argument of Mr. Rane that because the Parliament does not deal with the further remedies a necessary intendment should be inferred that the further remedies are still to be governed by the provisions of the old Code.

24. The conclusion to which we thus arrive by examining the provisions of Sub-section (2)(a) of Section 484 is that Sub-section (2) is a complete code in itself, and lays down rights and remedies of parties and the manner in which the old Code should operate and the stages at which the new Code should take over the further progress of the pending litigation.

25. The rest of the clauses of Sub-section (2) are merely in aid of the proposition which we have laid down above. Clause (h) for instance is purely a transitory provision and it provides for the operation of all notifications, proclamations etc. as if they were made or formed under the new Code. Clause (c) provides that if a sanction has been accorded or consent given under the old Code in pursuance of which no proceeding was commenced under that Code, that sanction or consent shall be deemed under the corresponding provisions of the new Code and the proceedings may be commenced under the new Code in pursuance of such sanction or consent. Under Clause (d) there is a wholesale exception in the case of Rulers within the meaning of Article 363 of the Constitution as the old Code has to continue in relation to prosecutions against them. Sub-section (3) makes it clear that where the period prescribed for an application or other proceedings under the old Code had expired before the commencement of the new Code even if a larger period is provided by the new Code for filing that application or proceedings, the earlier period which was already barred by time is not to be revived. In other words the parties were expected to take action under the old Code so long as it was in force and the mere fact that the longer period is now available under the new Code for taking some action will not automatically 'revive the matter if it is time barred. Having taken a complete survey of the entire section we do not see how it would be possible to construe it in the manner in which Mr. Rane wants us to do.

26. The learned single Judge of this Court in Anil N. Shah v. The Mate of Maharashtra has undoubtedly agreed with the approach of the Full Bench decision of the Gujarat High Court reported in Hiralal Nansa Bhavsar v. The State, to which we have already referred. The main reasoning of those judgments is that the appeal is a vested right. We have already pointed out in the course of our discussion that as a theoretical proposition it is difficult to dispute that statement of law. We however qualify it as we have indicated earlier in our judgment that a right of appeal itself is not a natural right and unless a statute provides for it no one can say that he has a right of appeal to some higher tribunal. If once a higher tribunal is nominated and a right of appeal is provided by the statute it can be taken away or modified by subsequent legislation, but the Legislature must do so by using language which is rather express or exhibits necessary intendment. The two judgments have further argued that this vested right of appeal is not taken away by the express language of Section 484(2)(a) of the new Code. Though the Legislature has described pending litigations by referring to its five different stages and has used different words for indicating the manner of their termination, the two judgments assume that a disposal must always be a final disposal. A final disposal would undoubtedly indicate all possible remedies by the then existing law when cognisance was taken of the offence by the appropriate Magistrate. It is on this assumption that a conclusion has been drawn that Section 484(2)(a) is not retrospective bat is purely prospective and all pending litigations irrespective of its stages must be continued and disposed of under the old Code until the final stage of disposal is reached. In other words full meaning has not been given by the two judgments to the express language of the Legislature in classifying pending litigation into different categories and using different verbs for the termination thereof and this, in our view, has resulted in taking the view different from the one which we have taken. With respect, we are unable to agree with that approach. It is a well-known cannon of construction that the Legislature must presume to know what it wants to do. It must be further assumed that the words used by the Legislature are in further cognisance of the expression of their intention and they must be given their full effect. The Courts must draw conclusions consistent with the express language. If the result is beyond the competence. of Legislature a question may arise as to what construction may be put upon the language of the Legislature. If, however, what is sought to be done is well within their competence the Courts do not seem to have a choice to draw an inference contrary to the express provision of the language of the statute. In other words so far as the proposition involved in the present litigation is concerned, the Legislature undoubtedly had the right to modify the right of appeal or to take it away while introducing the new procedure code. If from the express language it appears that all the 'supposed' advantages of the old Code are not available fully but the new Code is well within the legislative competence of the Parliament the language of the new Code must prevail in spite of the fact that it modifies to some extent the rights earlier provided under the old Code. It is on this approach that we are unable to accept either the reasoning or the conclusions reached by the learned single Judge of this Court or the 'Full Bench of the Gujarat High Court.

27. Our attention was drawn to a possible anomalous position at the inception of the new Code. The new Code provides for an appeal to the City Sessions Court, from certain judgments and orders of the Metropolitan Magistrates, where formerly appeal lay to the High Court. It is argued that one accused who is convicted and sentenced by the Metropolitan Magistrate may obtain certified copy before April 1, 1974 and file his appeal in the High Court. His co-accused may get the copy late, say in the first week of April 1974, and would be required to file his appeal in the City Sessions Court. 'We do not think that this situation cannot be remedied. If these facts are brought to the notice of the High Court, it has power enough to call for the appeal from the file of the City Sessions Court and hear both appeals together. Such marginal contingencies, which may be very few, cannot override the express language of Section 484(2)(a).

28. Once this conclusion is reached, the other point really does not seem to have much substance. Under the scheme of the new Code chap. XXX dealing with reference and revision it Would appear that powers of revision of the Sessions Judge are now enlarged as compared to his right under the old Code. Section 397(1) authorises the High Court or Sessions Judge to call for and examine the record before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. This provision is similar to the provision of Section 435 of the old Code, Provisions of Section 398 of the now Code are also similar to the provisions of Section 436 of the old Code. The controversial provision which is debated before us is incorporated in Section 399 of the new Code. Sub-section (1) of this section lays down that in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (7) of Section 401. Here for the first time the powers of the Sessions Judge are considerably enlarged and he is given the some powers as the High Court under Sub-section (7) of Section 401. In other words whatever be the powers of the High Court under Sub-section (7) of Section 401 are also the powers of the Sessions Judge for the disposal of proceedings, the record of which has been called for by himself for examination. Let us therefore find out in the first instance what are the powers of the High Court. Sub-section (1) of Section 401 which deals with the powers of the High Court is as follows:

401, (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

The provisions of Section 386 may be pertinently relevant. The provisions of Sections 389, 390 and 391 of the new Code are more or less dealing with the interim stages or matters procedural. The substantive rights which are to be exercised while dealing with the revision applications are those contained in Section 386. Instead of repeating all the powers conferred upon the appellate Court under Section 386 while drafting Sub-section (1) of Section 401, the Legislature has merely referred to the powers of the appellate Court as contained in Section 386.

29. Going to the provisions of that section the opening clause says that if after examining the record the appellate Court considers that there is no sufficient ground for interfering in the matter it can dismiss the appeal. The first power as we will now describe it is the power of dismissal. Clause (a) of Section 386 then deals with the appeal from an order of acquittal. With respect of such appeals the appellate Court is entitled to reverse such order and direct that further inquiry be made or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. This is the second power bestowed upon the appellate Court though it is to be exercised when an appeal from order of acquittal is being considered.

30. Clause (b) of Section 386 indicates the powers when an appeal from a conviction is being entertained by the appellate Court. The appellate Court can in such appeal reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial. It can also alter the finding, maintaining the sentence or with or without altering the finding, niter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same. The section further says that in an appeal for enhancement of sentence the appellate Court can reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same. In appeals relating to any other order, the appellate Court can alter or reverse such order and it can always make any amendment or any consequential or incidental order that may be just or proper while dealing with the appeal. There is a proviso that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. There is a further proviso that the appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

31. The above summary of the provisions of Section 386 shows the various powers of the appellate Court and also its limitations. Going back to the provisions of Section 401 which we have quoted above, the Legislature authorises the High Court sitting as a Court of revision to exercise any of the powers conferred on a Court of appeal by Section 386. The language of Section 401 is clear and unequivocal. It merely refers to Section 386 and refers to all or any of the powers which are exercisable under that section. The above reference to the provisions of Section 386 made by us does show that the various powers are exercisable in different types of appeals. However, whatever the nature of the appeal he all the powers that are described in Section 386 are the powers of an appellate Court. All such powers or any of them are available to the High Court for being exercised while dealing with the revisional application under Section 401(7) which merely refers to the 'powers conferred on a Court of Appeal by Section 386'. If these are the powers of the High Court under Section 386 which it can exercise as a Court of revision and Sub-section (7) of Section 399 directs that the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401, there seems to be hardly any doubt that the powers of the Sessions Judge are made co-extensive with the powers of the High Court.

32. Mr. Rane, however, argued that this would not be the construction to be put on the provisions of Section 399(7). With reference to Section 386 Mr. Bane argued that Clause (e) deals with the enhancement of the sentence in an appeal for enhancement of sentence. An appeal for enhancement of the sentence on the ground of its inadequacy is permitted to be filed by Sub-section (1) of Section 377. There was no such provision in the old Code. In respect of such an appeal the High Court is authorised to pass various types of orders including the one for enhancement of sentence. The appeal for enhancement under Sub-section (1) of Section 377 necessarily lies to the High Court and never to the Sessions Judge. Mr. Rane therefore poses a question as to how a Sessions Judge can now enhance the sentence sitting as a Court of revision under Sub-section (1) of Section 399, though he had no power as an appellate Court for enhancing the sentence. The power to enhance the sentence as appellate Court in respect of an appeal relating to sentence is conferred by the Legislature only on the High Court. We do not see any anomaly, because the Legislature wants the High Court to exercise all the appellate powers 'conferred on it under Section 386 oven as a Court of revision. A mere reference to Section 386 has been made in Sub-section (1) of Section 403. Since further the Legislature wants the Sessions Judge also to use all powers of the High Court including the powers of enhancement of sentence, Sub-section (1) of Section 399 merely refers to the exercise of all the powers by the High Court under Sub-section (1) of 8. 401. The language of Section 401 and Section 399(1) is worth noting. It merely refers to power of an appellate Court without mentioning the type and remedy under which that power is to be exercised. All the powers irrespective of the remedy are therefore powers of an appellate Court and all these powers are made exercisable by the High Court as well as the Sessions Judge. We are thus satisfied that the Sessions Judge under the new Code has all the powers of the High Court which are enumerated by the Legislature in Section 386.

33. Enhancing the sentence is one of the powers included in that section and the Sessions Judge can now exercise that power in view of the clear provisions of Sub-section (1) of Section 399 read with Sub-section (1) of Section 401. This is the power of the Sessions Judge only under the new Code since we have held above on the first point that every trial which was pending as on April 1, 1974, as in the present case, conclusion of that trial alone was under the old Code and nothing further. For the purpose of further remedies one has to look to the new Code. That being our view, to the revision application entertained by the learned Sessions Judge suo motu, the provisions of the new Code were attracted and he was entitled to exercise all the powers which the appellate Court can exercise including the power of enhancement of sentence. The order of enhancement of sentence by the learned Sessions Judge does not seem to be unlawful or beyond his competence.

34. This takes us to the consideration of the last point argued by Mr. Kane. The present revision application is against the order of enhancement of sentence passed by the learned Sessions Judge. Against such an order a revision application to this Court undoubtedly lies as the language of Section 399(7) is clear enough. If the Sessions Court is moved by way of an application in revision by a person and the Sessions Judge disposed it of, a further application at the instance of the same party in the High Court is not permissible as is equally clear from the provisions of Sub-section (5) of Section 399. However, the Present revision application is at the instance of the accused, who is aggrieved by the order passed by the Sessions Judge in a suo motu examination of the record. Since the Sessions Judge is a criminal Court inferior to this Court, it seems to be permissible for us to entertain this application for the purpose of considering- the correctness, legality or propriety of any finding, sentence or order passed, or the regularity of the proceedings by the Sessions Judge. The right of this Court to entertain an application and to dispose it of under Section 397(1) is not in doubt.

35. Mr. Rane's last point was that the sentence of one day's imprisonment and a fine of Rs. 1,000 for a conviction under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act may not be a lawful sentence. He agreed that this was not a case to which the proviso of Sub-section (1) of Section 16 of the Prevention of Food Adulteration Act was attracted and a minimum sentence as awarded by the Sessions Judge was a lawful sentence. Any lesser sentence in terms of period of imprisonment or the amount of fine was not possible. However, there are circumstances in this case which should induce this Court to give the petitioner benefit of the provisions of the Probation of Offenders Act, 1958.

36. That Act undoubtedly can be pressed into service on the express language of the Act itself. It is also so held by the Supreme Court in Jai Narain v. Delhi Municipality : 1973CriLJ49 . The only question is whether there are circumstances which should compel us to revise the sentence now awarded by the Sessions Judge and give the accused benefit of the Probation of Offenders Act.

37. The circumstances, according to Mr. Kane which should be taken into consideration are that the State Transport canteen or the sweet-meat shop belongs to the father of the accused, who was original accused No. 2, as the father was away in home town in Kanara District the accused as the son was in charge of the shop only for a fortnight or so. He was otherwise serving in another hotel at Satara. He is a young man just about twenty-one and was recently married before the offence was registered. In the circumstances, if material in the shop was availably for the purpose of preparation of Bundi Ladu, the accused might not have consciously handed over au objectional colouring material. This is again the first offence of the accused. As a commutative effect it is stated that the accused may be released on probation of good conduct rather than sentence him to jail.

38. The learned Sessions Judge who took suo motu action in this case has considered all these arguments. These very points were raised before him and they have not appealed to him. He has pointed out that in the case of antisocial offences the Legislature has come out with the provisions where the normal discretion of Courts in the matter of sentence is taken away and the minimum sentence has been prescribed by the statute itself. It cannot be forgotten that the powers of revision of the Sessions Judge as also the High Court are the same. Undoubtedly he is subordinate to this Court and this Court is entitled to revise his order if there are good reasons. If the order of the learned Sessions Judge is a considered one and he has applied his mind to all the arguments raised before him and has ultimately thought that the circumstances justify the enforcement of the minimum sentence prescribed by the Legislature, we must have some better arguments for the purpose of taking a different view from him. Since the examination in a revision application in confined to the correctness, legality or propriety of finding, sentence or order or the regularity of proceeding, it must be pointed out where the Sessions Judge has gone wrong. There is no complaint or irregularity of proceedings any where. Since our earlier discussion shows that the Sessions Judge has the same power of revision as the High Court the order passed by him is certainly not illegal. The only question may be of propriety or correctness. So far as correctness is concerned, since minimum sentence has been laid down by the Prevention of Food Adulteration Act it is difficult to doubt correctness. The only question that remains is, of propriety. In the matter of consideration of propriety it is the primary discretion of the Court that imposes the sentence. Unless it is found that the discretion is improperly exercised the consideration of impropriety thereof also does not arise. The learned Sessions Judge has pointed out that technically the accused may not be the owner of the shop, but he is the son of the proprietor and though employed else where is in the same trade. It was more than a fortnight that his father was away. If the colouring material is of an objectionable type simply because the bright colour of the article attracts the customers, it was improper to have utilised that colouring material at the risk of the health of the consuming public.

39. Having considered all these circumstances and also taking into consideration the age of the accused, the Sessions Judge thought it fit to award the minimum sentence. In the facts and circumstances of the ease, which have been already considered by the Sessions Judge, we do not think that we should interfere with the exercise of the revisional powers by the Sessions Judge and more particularly with the discretion in the matter of sentence. We therefore decline to interfere with the order passed by the learned Sessions Judge. Revision application thus fails and stands dismissed. The accused will surrender to his bail. Rule discharged.


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