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State of U.P. Vs. Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Case No. 257 of 1959
Judge
Reported inAIR1961All239
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 438 and 561A; Constitution of India - Article 134(1); Indian Penal Code (IPC) - Sections 326
AppellantState of U.P.
RespondentShankar and anr.
Advocates:Addl. Govt. Adv.
DispositionApplication rejected
Excerpt:
criminal - leave to appeal - section 561-a of criminal procedure code, 1898 and article 134 (1) (c) of constitution of india - magistrate proceeding with trial of offence which he can not adequately punish amount to impropriety - single judge of high court held sessions judge not empowered to commit the case to sessions court but can make reference to high court for its order - sessions judge's order for committing such case set aside and direction for trial of case on merit passed - state files application under section 561-a and article 134 (1) (c) - order of high court may be incorrect - no grave miscarriage of justice occurred - application should have not been mixed up under section 561-a and article 134 (1) (c). - - code as well as under article 134(1)(c) of the constitution.....ordera.n. mulla, j.1. this is an application filed on behalf of the state under section 561-a, cr. p. code as well as under article 134(1)(c) of the constitution of india. the prayer made in this application is that either the order passed by me in criminal revision no. 179 of 1959 be suitably amended or leave to appeal to the supreme court be granted.2. i may now give briefly the facts of the case in which this application is made.3. a first class magistrate convicted goberdhan and shanker opposite parties under section 326, i. p. code and sentenced them to 18 months' rigorous imprisonment each. the charge against the two accused was that they caught bold of shrimati mithana and while goberdhan accused was holding her, shanker accused cut off a part of her nose. the two offenders were.....
Judgment:
ORDER

A.N. Mulla, J.

1. This is an application filed on behalf of the State under Section 561-A, Cr. P. Code as well as under Article 134(1)(c) of the Constitution of India. The prayer made in this application is that either the order passed by me in Criminal Revision No. 179 of 1959 be suitably amended or leave to appeal to the Supreme Court be granted.

2. I may now give briefly the facts of the case in which this application is made.

3. A first class Magistrate convicted Goberdhan and Shanker opposite parties under Section 326, I. P. Code and sentenced them to 18 months' rigorous imprisonment each. The charge against the two accused was that they caught Bold of Shrimati Mithana and while Goberdhan accused was holding her, Shanker accused cut off a part of her nose. The two offenders were tried and convicted as mentioned above, but it is not apparent whether this was a private prosecution or a State prosecution. They went up in appeal and the teamed Sessions Judge of Sitapur came to the conclusion that the sentences awarded to the two accused were inadequate as the disfigurement caused to Shrimati Mithana materially affected her looks.

Relying upon a decision of the Bombay High Court in Queen Empress v. Abdul Rahiman, ILR 16 Bom 580, in which the sentence of two years' rigorous imprisonment awarded by the Magistrate was on a second trial enhanced to eight years rigorous imprisonment, the Sessions Judge quashed the conviction of the two accused and directed that they should be committed for trial to the Sessions Court.

4. Shanker and Gobardhan feeling aggrieved by this order came up in revision before the High Court and this revision was heard by me on the 11th of September, 1959. In my decision I observed that the offence committed by the two accused was certainly grave, but legally the order of the Sessions Judge directing the committal of the case cannot be upheld as in my opinion this was beyond the powers of the Sessions Judge under Section 423, Cr. P. Code.

I was of the view that where this direction to commit the accused person is equivalent to an enhancement of that sentence, it is beyond the jurisdiction of the Sessions Court and in such a case only a reference can be made to the High Court. I, therefore, accepted the revision application filed before me and directed that the Sessions Judge should proceed to hear the appeal on merits and pass suitable orders. It is against this order that this application has been presented.

5. I may observe straightway that when I decided the revision no authorities were placed before me either by the counsel for the accused or by the counsel for the State. I also did not give my reasons in my decision as to why the Sessions Judge could not make such a direction under the provisions of Section 423, Cr. P, Code. As this point has been specifically raised now and the counsel for the State has placed a large number of authorities before me, it is necessary that I should give reasons for the view which I had expressed.

6. But before doing so I would cite the relevant portions of Section 423, Cr. P. Code:

'423 (1) The appellate Court .....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 .....

(c) .....

(d) make any amendment or any consequential or incidental order that may be just or proper.

(1A), Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in Clause (b) of Sub-section (1).....'

The whole question for determination is whether the powers given to the Sessions Court under Section 423 (1) (b), Cr. P. Code include upon a proper interpretation the power to direct that an accused be committed for trial even when this direction is equivalent to an enhancement of sentence. There is some conflict of authority on this point and while the first two cases support the view which I expressed in my decision, all the later decisions are against that view. There is thus a preponderance of authority against the view which I expressed. The first two decisions which support me are: 1. Queen v. Seetal Pershad, 5 NWPHCR 168 and 2. Queen Empress v. Sukha, ILR 8 All 14. Both these decisions are by Single Judges.

As against this there is a Bench decision of our own High Court in Queen Empress v. Maula Bakhsh, ILR 15 All 205, and this may be said to be the leading decision, for the subsequent decisions have merely followed this decision but not discussed the question at all. One of these decisions is Misri Lal v. Lachmi Narain Bajpie, ILR 23 Cal 350, which is a decision of a Bench of the Calcutta High Court.

In an earlier decision a Bench of the Bombay High Court had also expressed disagreement with the view expressed in ILR 8 All 14, and this was the case cited by the Sessions Judge in his order. The Bombay decision can, however, be distinguished, for it does not deal with the question which as really involved. It also dealt only with the powers of the High Court and not with the powers of the Sessions Judge.

7. Before giving my own views I would like to place the conflicting lines of reasoning and this would best be done by quoting extracts from the two principal decisions.

8. Brodhurst, J. in ILR 8 All 14 at page 16 observed as follows :

'The High Court of these Provinces held on more than one occasion, as will be seen by referring to the judgment of Jardine, J. in 5 NWP HCR 168, that the Court of Sessions can. only order the commitment of an accused person in cases exclusively triable by it; and I entertain no doubt that this was a correct exposition of the law during the time that Act X of 1872 was in force.

Act X of 1882 did not, so far as I am aware, extend the powers of the appellate Courts; on the contrary, it curtailed them by depriving those Courts of the power of enhancing sentences. That power was, by Section 439 of the Criminal Procedure Code now in force, conferred, under certain restrictions, solely upon the High Courts as Courts of revision. Under the latter section it is laid dawn that 'Where the sentence dealt with under this section has been passed by a Presidency Magistrate or a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.'

Had the Sessions Judge referred the case under appeal to this Court for orders, the sentences could not have been enhanced to more than a total punishment of two years' rigorous imprisonment and fine, i.e., to the punishment that the Magistrate of the first class was competent to inflict.

If the Sessions Judge was competent to order the commitment in the present case, he could do so only under Clause (b), Section 423 of Act X of 1882. If he is empowered by that section to order the commitment, the result of the amendment of the Criminal Procedure Code is that, whilst the Court, of Sessions is, by Act X of 1882, deprived of the power of enhancing a sentence of, say, three months' rigorous imprisonment under Section 325 of the Penal Code into a sentence of two years' rigorous imprisonment and fine, it is nevertheless empowered to reverse the conviction under Section 325, and the sentence of three months' rigorous imprisonment and fine, to order a commitment under the same section, and to sentence the accused to rigorous imprisonment for seven years and to fine.' On the basis of this line of reasoning the learned Judge held that a Sessions Judge could only exercise this particular power of directing a committal under Section 423 (b), Cr. P. Code where the jurisdic-tion was wrongly seized by the Magistrate and in no other circumstances.

9. The contrary view is expressed by Edge, C. J. and Aikman, J. in ILR 15 All 205, and they observed at page 206 :

'According to the ordinary English construction of Clause (b) of Section 423, we have no doubt that the appellate Court, whether that appellate Court is a Court of Session, or a District Magistrate can, in an appeal from a conviction, having reversed the finding and sentence, order the accused to be committed to the Court of Session. That power is conferred in our opinion by Sub-clause (1) of Clause (b) of Section 423, and is not in any way controlled by the prohibition as to enhancing a sentence contained in Sub-clause (3) of Clause (b) of Section 423. There can be no doubt that it has been considered by this High Court that when acting under Section 439 of the Code, it had power, having reversed the finding and sentence, to order a committal for trial to a Court of Session. That power could not be exercised under Section 439, read with Section 423, unless the appellate Court referred to in Clause (b) of Section 423, had by reason of that latter section such power conferred upon it.

It was contended that to hold that a Court of Session had such a power conferred upon it would be inconsistent with the course of legislation. In support of that argument it was pointed out that the power of enhancement which was conferred by Section 280 of Act No. X of 1872 upon all appellate Courts, was taken away by Act No. X of 1882, and that power was by the latter Act restricted to a High Court when acting under Section 439 of Act No. X of 1882. Section 28 of Act No. XI of 1874 amended Section 280 of Act No. X of 1872, and whilst leaving the power of enhancement in the appellate Court, it conferred on the appellate Court a further power of ordering an appellant to be retried, presumably to be tried by the same Court which had originally tried him. Consequently under Section 280 of Act No. X of 1872 before it was amended, or as amended by Section 28 of Act No. XI of 1874, the appellate Court had not under those sections a power to order a commitment to itself or a commitment at all.

When we come to Act No. X of 1882, we find a great change in procedure. The power of enhancement which had existed in the appellate Court as such was taken away, but words were introduced which can only be construed as conferring upon the appellate Court a power of ordering the accused appellant to be committed to the Court of Session even where the Court of Session was the appellate Court. The object of the alteration in the procedure may have been to prevent a Court other than a High Court enhancing sentences except upon a fresh trial before itself, and under circumstances which would give the accused a right of being heard, and having his witnesses heard by the Court enhancing the sentence, and would give him an appeal from the conviction under which the heavier sentence was passed. Whatever may have been the object of the Legislature we consider no other construction can be put by us on Section 423 of Act No. X of 1882.'

10. I have tried my best to remove my doubts, by the observations of the learned Judges cited above, but I must say with all respect that these doubts still persist. No doubt there is a preponderance of authority in support of this view, but it has not brought conviction to my mind. Still as the weight of authority is against me, I would not have preferred my own opinion against this authority specially when a Divisional Bench of our own High Court has clearly expressed a contrary view.

In such a case if I had felt that this view needed reconsideration, I would have referred the case to a Divisional Bench first and then if the Divisional Bench had agreed with my view then the matter might have been referred to a larger Bench, but at this stage it is not necessary for me to decide whether the view taken by me was correct or not. I have only to see whether this is a ground on the basis of which an interference can be made under the provisions of Section 561-A, Cr. P. Code.

11. I will now mention certain aspects of the question which in my opinion deserve consideration.

12. The first point to be considered is whether all the powers mentioned in Section 423, Cr. P. Code are to be exercised by all the appellate courts in their widest meaning or by only some of the appellate courts and to different extent. This aspect of the question has not been considered in any decision, so far as my knowledge goes. A mere reading of Section 423, Cr, P. Code satisfies me that it is an omnibus section, which enumerates all the powers which are to be exercised by the appellate courts and these appellate courts include in their orbit courts from the High Courts down to the courts of those Magistrates who are given appellate powers.

It is noticeable that the section uses only the term 'appellate court' and does not define the appellate court any further. That there are several powers of the appellate Court mentioned in Section 423, Cr. P. Code which cannot be exercised by any other court except the High Court admits of no doubt. As an illustration I would cite Clause (a) of Section 423 (1), Cr. P. Code. It reads as follows :

'in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.'

It is conceded by the counsel for the State that this provision does not apply to any other appellate court except the High Court and the powers mentioned in Clause (a) cannot be exercised either by the Sessions Judges or the District Magistrates. This only supports the view which I have expressed above that the powers enumerated in Section 423, Cr. P. Code relate to all the appellate courts and everyone of these powers cannot be exercised by any other court except the High Court.

Once this is granted, we have to interpret the purpose of the Legislature and also see whether the words of the statute itself give any clear indication of this intention or not. If only the words are interpreted, no doubt the Sessions judge is entitled to direct that a case be committed for trial, but where this purpose is kept in mind it would appear that this was not the intention of the Legislature. In interpreting the words of the statute no doubt the words should be given their natural-meaning, but where another meaning can be given to these words which does no violence to the language of the statute and which is in consonance with the intention of the Legislature that interpretation should be preferred.

13. What was the Intention of the Legislature? In the extracts of the two decisions which I have cited above, it is clearly made out that before the enactment of Act X of 1882 the appellate court was given the right to enhance the sentence. By enacting Act X of 1882, this power was clearly taken away. The question for determination is whether the Legislature intended to take away this power or it wanted to take away the power of enhancing sentence, but gave a greater power to Sessions Judges and District Magistrates for enhancing the sentence in another manner.

The real question is whether the intention was to curtail the power or to widen it. I have found nothing in the enactment to satisfy me that the Legislature intended to widen these powers. In my opinion this power of enhancing the sentence would not have been taken away from the Sessions Judges and the District Magistrates, if the intention was to give them a further, right to order commitments in cases where in their opinion the sentence awarded was inadequate.

This interpretation appeared anomalous to Brodhurst, J. and it appears anomalous to me. That no power of enhancement is conferred by Section 423, Cr. P. Code is quite apparent from its language. The clause added to the provisions of Section 423 which is Sub-section (1-A) makes it very clear. It pointedly mentions that the High Court may enhance the sentence and it further mentions that it could do so notwithstanding anything inconsistent therewith contained in Clause (b) of Sub-section 1. These words by themselves indicate that Clause (b) of Sub-section (1) of Section 423 does not contemplate the right to enhance the sentence,

It is difficult to accept that while the Legislature deliberately took away the right to enhance the sentence from the Sessions Judge and the District Magistrate, it yet gave them the right to achieve the same purpose by empowering them to issue directions that the cases be committed for trial to the Court of Session. The argument that this right was given to the Court of Session, but it was only after a fresh trial was held does not quieten my doubts. Even the learned Judges who expressed this view did not seem to be quite sure that this was the purpose of the Legislature, for they observed :

'Whatever may have been the object of the Legislature we consider no other construction can be put by us .....'

I feel that if the High Court had not been equated with the court of Session and the other appellate courts and the powers of these courts were not held to be co-extensive, the view expressed by Brodhurst, J. might have been acceptable to the latter Judges.

14. In my opinion a Sessions Judge can direct that a case be committed to his court where on other grounds the order passed by the Magistrate is considered to be unfair., improper or irregular. But where the direction is given because the sentence is considered to be inadequate, it would be against the spirit of the provisions of Section 423, Cr. P. Code, for this section gives no power to enhance the sentence. A terminological difference can certainly be made out that the order for commitment to trial is not an order of enhancement, but where in essence the two orders are the same, it would be bypassing the spirit of the law by relying upon the words of the law.

15. That Section 423, Cr. P. Code confers no power of enhancement of sentence is further illustrated from the fact that even when the High Court when hearing an appeal issues a notice of enhancement, it is registered as a criminal revision. In other words this power of enhancement of sentence can exclusively be exercised by the High Court under Section 439, Or, P. Code and whenever a notice of enhancement is given, the High Court acted under the provisions of Section 439 under the old Code and under the provisions of Sub-section (1-A) of Section 423 of the present Code. It cannot be doubted that the Sessions Judge cannot exercise the powers enumerated under Section 439, Cr. P. Code or under Sub-section (1-A) of the present Code.

The real difference between the two views is that according to one view where a case is ordered to be committed because the sentence is found to be inadequate, it is not an order of enhancement, while according to the other view it is an order of enhancement which is camouflaged in another terminology. As the second view appeals to me, I am still of the opinion that the order passed by the Sessions Judge was without jurisdiction.

16. I now approach the question from another angle. If the Legislature intended to give the Sessions Court the power to order a committal on the ground of inadequacy of sentence even after the final order was passed by the Magistrate, surely it would have also made some provision to vest it with similar powers for achieving the same purpose during the pendency of the case in the Magistrate's Court and before the final order was passed.

It is inconceivable to me that the Legislature intended to arm the Sessions Judge with a power after the case was completed even at the cost of subjecting an accused to extreme harassment and inconvenience and calling upon him to face a second trial, still it did not give the Sessions Judge that power in a pending case when the impropriety, if any, could have been cured at the initial stage. This aspect of the case escaped the attention of the Judges who decided Maula Bakhsh's case, ILR 15 All 205. Looking at the provisions of the Criminal Procedure Code from this angle I find that neither the revisional powers of the Sessions Judge incorporated in Sections 435 to 437, Cr. P. Code, nor the power of transferring and recalling cases given under Section 528, Cr. P. Code to the Sessions Court confers this right. The revisional powers of the Sessions Judge are as follows ;

(a) He can call for and examine the record of any proceeding before any inferior court within Ms jurisdiction for satisfing himself as to the correctness, legality or propriety of any finding, sentence or order and can also supervise the regularity of any proceedings of such inferior court (section 435 Cr. P. C.). In case he finds that there is irregularity in the proceedings, he can only report the result of his examination to the High Court for its orders (section 438 (Cr. P. C.). Where a Magistrate proceeds with the trial of an offence which he cannot adequately punish it can at best be described as an irregularity, though actually it is only an impropriety, and therefore, the Sessions Judge cannot direct the Magistrate to commit the case to the court of Session, but can only make a reference to the High Court for its orders.

(b) In case of a dismissal of a complaint under Section 203 or Sub-section (3) of Section 204 Cr. P. C. or where an accused is discharged he can order further inquiry and in the last type of cases mentioned above he can do so only after giving the discharged person an opportunity to show cause why such direction should not be made (section 436 Cr. P. C).

(c) Where the Magistrate has wrongly seized jurisdiction in a case exclusively triable by a court of Session and has discharged an accused, he can direct that the accused be committed for trial to the court of Session after giving him an opportunity to show cause why such an order should not be passed (section 437 Cr. P. Code).

This exhausts the revisional powers of the Sessions Judge and looking to the words of Section 437, Cr. P. C. it seems to me that the view expressed by Brod-hurst, J. was the correct view. It does not sound sense to me that the Legislature did not give the Sessions Judge the right to direct committal in a pending case because the Magistrate could not adequately punish an offender and in such a case only the High Court on reference from the Sessions Judge was empowered to do so under its wider revisional powers under Section 439, Cr. P. C., yet after the filial order was passed the Sessions Judge was empowered to do so on his own.

The omission to give this power to the Sessions Judge in a pending case cannot be treated as accidental nor can it be presumed that the Legislature by a mistake left a lacuna. On the other hand it clearly indicates the intention of the Legislature that the power to direct a committal under Section 423(b) Cr. P. C. is far more restricted when exercised by the Sessions Judge and it does not include those cases where this direction is given on account of inadequacy of sentence and in such a case only the High Court can do so.

17. The language of Section 528 Cr. P. Code which deals with the powers of the Sessions Judge to withdraw, recall or transfer appeals or pending case makes this intention still more clear. Sub-sections (1), (1A) and (1B) of this section deal with the powers of withdrawal and recalling and yet no right has been given to direct a committal in a pending case on any ground. I have already discussed above the revisional powers of the Sessions Judge and he can, if he feels that such a course should be adopted, can only make such a recommendation by making a reference to the High Court under Section 438 Cr. P. Code. The language of the newly added Sub-section (1C) of Section 528 Cr. P. C. is even more significant. It rung as follows:

'Any Sessions Judge, on an application made to him in this behalf, may, if he is of opinion that it is expedient for the ends of justice order that any particular case be transferred from one Criminal court to another Criminal Court in the same sessions division.'

This again does not confer a power upon the Sessions Judge to direct a committal even in the ends of justice. The right to transfer Criminal cases is confined to the extent mentioned above and it does not include the right to have the case committed to the Sessions court. In my opinion it cannot be contended on the words of the subjection quoted above that such a right is implied. The Legislature did not hesitate to express explicitly where it intended to confer such a right. Section 526 Criminal Procedure Code deals with the powers of the High Court when a transfer application is presented before it. The relevant words of Section 526 Criminal Procedure Code are :

'Whenever it is made to appear to the High Court:

(a) .....

(b) .....

(c) .....

(d) .....

(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order-

(i) .....

(ii) .....

(iii) that any particular case or appeal be transferred to and tried before itself; or

(iv) that an accused person be committed for trial to itself or to a court of Session.'

The explicit inclusion of this power under Section 526 Cr. P. Code and its studied exclusion from Section 528 Cr. P. Code leaves no doubt in my mind that in a case pending before a Magistrate the Sessions Judge cannot on his own direct a committal even if he considers it to be expedient in the interests of justice and he can only make a reference to the High Court for suitable order under Section 438 Cr. P. Code.

18. Section 347 Cr. P. Code is also extremely significant. This section again explicitly empowers the Magistrate to commit an accused for trial to the Sessions court at any stage before he has signed the judgment, if it appears to him that the case ought to be tried by the Sessions court. The Legislature has conferred such a power in unambiguous words wherever it has considered it to be necessary. It is, therefore, obvious that where the powers conferred upon the Sessions Judge do not contain any such explicit provision, it cannot reasonably be contended that this power was given in an implied manner to the Sessions court.

19. As I understand it, the intention of the Legislature has been made perfectly clear in the various provisions of the Criminal Procedure Code. If all these provisions are read together and an attempt is not made to isolate the words of one section from the other sections, the purpose of the various provisions can well be harmonized in one whole understandable scheme. It is only when the words of Section 423 Cr. P. Code are sought to be interpreted by themselves divorced from the other provisions that a doubt arises regarding the intention of the Legislature. Reading the provisions of Section 423 Cr. P. Code in the framework of the other relevant sections of the Criminal Procedure Code, the picture that emerges before me is as follows.

20. The Legislature safeguarded adequate punishment for an offence in several ways. In the first place the offences were classified and they were made triable by courts with different powers of inflicting sentence according to the gravity of the offence. Then it came across those offences which possessed innumerable shades of gravity and these offences were made triable both by courts of inferior powers as well as courts possessing superior powers.

The range of punishment for such offence because of its varying shades differed from a nominal sentence upto imprisonment for life. It, therefore, enacted Section 347 Cr. P. Code and vested the Magistrate with the power to commit the case to the superior court if he found at any stage of the proceedings before him that he could not adequately punish an offender. This discretion was vested in the Magistrate and the Legislature did not want that normally an interference should be made with this exercise of discretion. If, however, the State or the complainant felt that the Magistrate could not pass an adequate sentence and was improperly exercising his discretion it could seek its relief from the High Court either under Section 526 Cr. P. Code by praying for a transfer to the Sessions court or through a reference made by the Sessions Judge under Section 438 Cr. P. Code and if the ends of justice required it the High Court could grant that prayer.

If the State or the complainant made no such prayer during the pendency of the case it was equivalent to their accepting that the Magistrate was competent to award adequate punishment. Again, if the Magistrate did not exercise his powers to the full limit and gave a light sentence, then it was again open to the State or the complainant to pray for enhancement of the sentence and if the Sessions Judge found that the sentence was inadequate, he could make a reference to the High Court recommending such an enhancement. He was, however, not empowered to do so on his own. The reason seems to be that on the question of assessing the gravity of the offence and over-riding the discretion exercised by the Magistrate, the Legislature felt that an interference should be made only by the High Court and by no other appellate or revisional court.

The Legislature realized that subjecting an offender to a second trial only for the purpose of enhancing his sentence should be permitted in exceptional cases and for very grave reasons. That an offender escaped with a light punishment is not such a breach of law that the error must be corrected in every case at the cost of a second trial, but this power was to be exercised only in extraordinary cases which required such a grave step in order to vindicate the law. In my opinion the power of the appellate court to direct a committal to the court of Session should be interpreted in this background.

If this is done, the right of the Sessions Judge to direct a committal must be held to be subject to the restriction that he cannot do so where such an order is equivalent to an order of enhancement of Sentence and if he thinks that the ends of justice require it, he can only make a recommendation under Section 438 Cr. P. Code and then it the High Court also feels that it is one of those exceptional cases in which a proper, penalty must be exacted and the error cannot be rectified by that limit of enhancement which is permissible under the law, it can in its revisional or inherent powers accept the recommendation to set aside a miscarriage of justice.

I think that the Legislature intended that only that court should exercise this power at the stage of appeal who could also exercise it at an earlier stage. Still as I have observed above, if it had been necessary to decide this question, I would not have preferred my opinion against the authorities cited above and I would have referred the matter to a Divisional Bench.

21. But the position at this stage is quite different. I have already passed an order and even if it is incorrect, it has not caused such an injustice which must be rectified under the provisions of Section 561-A Cr. P. Code. A sentence of 18 months may be inadequate for the crime committed by the accused, but it cannot be described as insubstantial or absolutely inadequate. There bas been no such grave failure that the interests of justice demand that the mistake must be corrected. It is also surprising that upto the stage when the learned Sessions Judge passed his order, the State was not interested in the case at all. Probably it was a private prosecution.

The aggrieved woman did not put in any application before the Magistrate that he should commit the case to the court of Session under Section 347 Cr. P. Code, nor did the Magistrate suo motu act under this section. If this was a State prosecution it is all the more surprising that the representative of the State did not make any such prayer before the trial court. I am, therefore, of the opinion that no such grave miscarriage of justice has occurred which must be cured by me by exercising my inherent powers under Section 561-A Cr. P. Code.

22. There is another aspect of the case. The crime was committed on the 28th of January, 1959 and more than a year has now elapsed. If a retrial is ordered and even expedited the offenders, if they are found guilty, would be convicted about 11/2 years after the date of the offence. In Emperor v. Mohan Lal, 13 All LJ 477 : (AIR 1915 All 185), which was one of the cases cited before me by the counsel for the State, it was observed by a Bench of this Court consisting of Richards, C. J. and Piggott, J. :

'We do not, for one moment, wish to be taken as saying that the offence for which the accused have been found guilty, (particularly under the present circumstances) was not a most serious one, Nor do we wish to say that it would not have been better if the accused had been committed in the first instance to the court of sessions. At the same time the sentences cannot be said to have been nominal sentences. There is a strong principle that a man ought not to be tried a second time unless there are very grave reasons for so doing.'

The above observations apply fully to the circumstances of this case.

23. As regards the prayer that I should certify this case as a fit one for appeal to the Supreme Court, I feel that this prayer should not have been mixed up with the application under Section 561-A Cr. P. Code, It would be open to the State to file such an application separately against the order which I am passing to-day. I cannot consider this prayer along with a prayer for using my inherent powers under Section 561-A Cr. P. Code.

24. For the reasons given above I see no reason to modify my earlier order and this application is rejected. The stay order is vacated.


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