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Pusarala Narasinhaswamy Vs. Indian Dominion - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 341 of 1949
Judge
Reported inAIR1951Ori31; 17(1951)CLT53
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 412, 435, 439, 439(1) and 439(6)
AppellantPusarala Narasinhaswamy
RespondentIndian Dominion
Appellant AdvocateH. Mahapatra, Adv.
Respondent AdvocateAdv. General
Cases Referred and Rex. v. Plummer
Excerpt:
.....call it incorrectness, illegality or impropriety or the like. this, however, shall not be understood to mean that the high court should, without any good reason or in an arbitrary manner, disregard the plea of guilty. the river stands good in relation to the baa of transport from the right side to the left......23 bom. l. r. 1023 : (a. i. r. (14) 1927 bom. 67, 27 cr. l. j. 1148), an accused person, who pleads guilty before a magistrate and is convicted, can contend under schedule 12, criminal p. c, in his application for revision, that his conviction is illegal.'in the case of supdt. and remembrancer of legal affairs, bengal v. jnanendranath, 33 c. w. n. 599 : a. i. r. (16) 1929 cal. 747 : 30 cr. l. j. 1038), mukherji j. held that even when a person had been convicted on his own plea of guilty, he had the right under schedule 39 (6) to show cause against his conviction, withdrawing in effect the said plea. graham j. taking a contrary view held that section 439 (6) had no application where there was a plea of guilty except when the convicted person could show that there was some mistake in.....
Judgment:

Ray, C.J.

1. The petitioner has been convicted by the Subdivisional Magistrate of Nawrangpur under S 7 read with Schedule of Act XXIV [24] of 1946. and has been sentenced to undergo rigorous imprisonment for two months and to pay a fine of as. 50 in default to undergo rigorous imprisonment for a further period of two months.

2. On 16-6-1948. he was attempting to transport by toad in lorry (no. work 139) 12 maunda and 17 lbs. of rice in small gunny bags which were kept concealed amongst bags containing tamarind from the right side of the Indravati rives to the left in contravention of Government Notification No. 39547 ST dated 5 11.47. The petitioner pleaded guilty to the charge before the trial Court who convicted him, as aforesaid. The prosecution had examined two witnesses.

3. The legality of the conviction is challenged. This gives rise to a question whether the plea of guilty in the trial Court debars him from challenging the conviction on merits. The learned appellate Court overruled petitioner's contention that he could not, in law, have been convicted of the offence charged. In this connexion he observed :

'It appears from the record of statement of the accused prepared by the learned lower Court that the details of the alleged contravention were put to in the form of a single question to the accused and his plea was recorded 'the accused has pleaded guilty to the charge'.'

He further said:

'In the present case, the accused made the plea of guilty after the details of the alleged contravention had been put to him. Hence, the plea of the accused-appellant has been properly recorded and the appellant had appreciated the nature of the charge made against him and then made his plea before the lower Court. Therefore, no appeal will lie except for sentence.'

4. In two subsequent paragraphs, the appellate Court, however, did consider the merits of the contentions advanced before him which were slightly different from what have been contended here. One of the two contentions wa3 that the Government Notification no. 39547 dated 5-11-1947 was faulty and carried no meaning. The second contention was that the prosecution had failed to prove that the Government of India had delegated their power to the Provincial Government as the fact of delegation had not been published in any Official Gazette. The notification, as first published, omitted the word 'left' before the word 'side, that is, the relevant phrase read 'from the right side to the side.' By an erratum published on 20-11.1947, the omission was supplied and accordingly the necessary correction was published. It is contended here that the erratum should not validate the notification. This contention can be over, ruled as having no substance. The alleged offence, in the particular case, was committed on 16-6-1948, long after the erratum was published. Ordinarily, the erratum should take effect to rectify the error with effect from the date of the original publication. But had the alleged offence bean committed after the first publication of the Gazette notification and before the publication of the erratum, a different consideration might have been applied. But in this particular case, the notification had stood cor. rected long before the commission of the offence. The contention, fails. I am happy to note that the learned lower appellate Court having taken the same view overruled the contention.

5. The contention involving absence of delegation by the Government of India has been reiterated in this Court, but in a different form and from a different aspect. What was contended there was that the fact of delegation had not been officially published and it was rightly thrown out by the Court. What is contended here is that the Government of Orissa secured the delegation in the form of an approval to their proposal to the effect that they should exercise the power of banning transport from the north side of the river Indravati to the south Later, however, they introduced a change prohibiting such transport from the right side of the river to the left. The river has a meandering course. In some places the right side would be to the east; while the left to the west. The contention, therefore, is that when, as is in the present case, the place of origin of the transport is to the eastern side of the particular sector of the river concerned and the destination is to the western side thereof, no offence can be said to have been committed even though it offends the Government of Orissa notification, it being in excess of the delegation obtained.

6. Before considering the merits of the contention, I shall have to address myself to a contention raised by the learned Advocate. General, which is is the form of a preliminary objection to its entertainment, that the accused having pleaded guilty in the Court below he is not enitiled to challenge the legality of the conviction except as to the extent or the legality of the sentence. In this connexion, reliance has been placed upon Sections 271 (2), 412 and 439, Criminal P. C. It is urged that the High 'Court's powers of revision are limited to the powers enumerated in sub.s. (l) of Schedule 39, namely, powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 of the Code or on a Court by Section 338 etc. As according to Section 418 (412?) no appeal lies against a conviction based upon accused's owe plea of guilty, the High Court's power is too limited accordingly. Free of any authority, I should rule out this contention as unsold. Section 439 is an enabling one. Chapter xxxII of the Coda in which Schedule 39 occurs deals with the subjects of 'Reference and Revision'. Section 435 confers revisional jurisdiction of either wider or more limited character on Courts of various grades of which the High Courts is one. The Courts below the High Court are given revisional jurisdiction for the purpose of ultimately making a reference to the High Court With regard to High Court, the material portion of the section reads :

'The High Court .... may call for and examine record of any prooeeding, before any Criminal Court situata within the local limits of its jurisdiction for the purpose of satisfying itself.....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 sailing Joe such record, direct that execution of any sentence ha suspended and, if the accused is in confinement, ha be released on bail or on his own bond pend the examination of the reoord.'

(The rest of the section is not material) Section 436 deals with direction of further inquiry into a dismissed complaint by High Court and other Courts mentioned therein. Section 437 is not relevant for the present purpose, being confined to the powers of the Sessions Judge or District Magistrate or an Additional Sessions Judge to make a report for the orders of the High Court the result of such examination, on examining the record of any proceeding Under Section 435 of the Code or otherwise, Next cornea Schedule 39 which opens with the words.

'in the cage of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise cornea to its knowledge, the High Court may, in its discretion, exercise any of the power &c.;'

Reading Sections 435 and 439 together, it would be evident that the High Court can interfere in ali| cases of incorrectness, illegality or impropriety of any finding, sentence or order or the irregularity of any proceedings of the inferior Courts . by taking such measures or passing such or ders as could be passed by an appellate Court under Sections 483, 426, 427 and 428 or by any other Court by Section 838. The ambits of the powers are to be delimited by reference to Section 435, that is, power of removing any deficiency in the finding, sentence Or order, or proceedings, call it incorrectness, illegality or impropriety or the like. After so satisfying itself, the Court, in order to give proper relief to the parties themselves and to rectify the errors or illegality &c.;, as the case may bo, shall make such orders as a Court of Appeal could make in appropriate cases. In saying that a Court of Revision should exercise the powers of a Court of Appeal what is meant to be said is that it should exercise the power which a Court of Appeal in an appeal legally entertainable by him could do.

7. The result of my examination of the provisions, in short, is that even though no appeal would lie to an Appellate Court under Section 412 of the Code against an order of conviction based on the accused's own plea of guilty except as to the extent or legality of the sentence, the High Court, in its revisional juris diction, may interfere with the conviction as distinguished from merely the sentence if it satisfies itself that the finding is either incorrect or illegal or improper. This, however, shall not be understood to mean that the High Court should, without any good reason or in an arbitrary manner, disregard the plea of guilty. It must be satisfeid that the plea of guilty has either been misunderstood or misconceived under the particular features present in the case.

8. I shall now deal with certain authorities cited at the Bar. The learned counsel for the petitioner has relied on a decision of Rowland, J. of the Patna High Court in the case of Krishna Chandra Sinha v. Emperor A. I.R. (30) 1943 pat. 313: (44 Cr. L.J. 801). The learned Judge deals with the question in the following words:

'Hence it is suggested that where in a particular case the powers of an appellate Court are restricted by Schedule 12 the powers oil the High Court in revision are similarly restricted. The argument; it seems to me, loses right of the provisions of Sections 413 and 414 and the consequences of those provisions. In those two sections it is enacted that in certain cages there shall be no appeal but such provisions have never been considered to forbid the High Court in revision from exercising just as wide powers as if there had been an appeal and the High Court had been the appellate Court. In my opinion, therefore, the powers of this Court in dealing with the present application are as ample as if an appeal on the merits had been entertainable by the Sessions Judge and had bean dismissed,'

In the case of Emperor v. Nana Sahu, A. I. R. (SC) 1943 Bom. 209: (44 Cr. L.J. 668), Divatia J. held:

'As the learned Sessions Judge points out, It is open to them in revision to challenge the conviction as illegal even though they pleaded guilty to the charge. As hold by our Court in Chunilal v. Emperor, 23 Bom. L. R. 1023 : (A. I. R. (14) 1927 Bom. 67, 27 Cr. L. J. 1148), an accused person, who pleads guilty before a Magistrate and is convicted, can contend under Schedule 12, Criminal P. C, in his application for revision, that his conviction is illegal.'

In the case of Supdt. and Remembrancer of Legal Affairs, Bengal v. Jnanendranath, 33 C. W. N. 599 : A. I. R. (16) 1929 Cal. 747 : 30 Cr. L. J. 1038), Mukherji J. held that even when a person had been convicted on his own plea of guilty, he had the right under Schedule 39 (6) to show cause against his conviction, withdrawing in effect the said plea. Graham J. taking a contrary view held that Section 439 (6) had no application where there was a plea of guilty except when the convicted person could show that there was some mistake in recording the plea of that he did not in fast take such plea, On account of this difference of opinion, the case was referred to a third Judge, Buckland J. His Lordship held that in the case of a person who had been convicted on a plea of guilty, the conviction against which he might show cause under Schedule 39 (6), Criminal P. C. would mean the judgment of the Court sentencing him, Against Such conviction, cause might be shown by attacking the propriety or legality of the sentence but not; by withdrawing the plea of guilty or going behind such plea as a confession of the facts charged. His Lordship had, however, said that against a conviction on the accused's own plea of guilty, he might show cause by contending that there was some defect in the proceedings or the fact to which he confessed by his plea of guilty did not amount to an offence or offence of which he had been convicted. His Lordship, in this connection, relied on the case of Reg v. Brown, (1890) 24 Q. B. D. 357: (59 L.J. M.C. 47). His Lordship explained his decision to be confined to the case that such an accused could not go behind] his plea of guilty as a confession of the charged Dealing with Mukherji J's based mainly on the theory that an even after passing of sentence on conviction was entitled to withdraw his plea of guilty, his Lordship said that, the withdrawl of ft plea of guilty was a totally different matter actually there was no provision in the Criminal P. C., which allowed that to though his Lordship had no doubt Court would permit it in a proper case English authorities moreover agreed that the leave of the Court was required and that such leave could not be given after sentence, that is judgment, had been pronounced, (Reg. v. Clouter, (1859) 8 cox. 237, Reg. v. Sell (1840) 9 C & P. 346: (173 E. R. 862); and Rex. v. Plummer, (1902) 2 K. B, 389: (71 L.J. K.B. 805).

9. It is clear from examination of the authorities that ordinarily the accused shall not be allowed to withdraw from his plea of guilty in so fur as it means his confession of the facts charged but at the same time he shall be allowed to challenge the legality of the convition apart from the sentence if any such error; in the proceeding has vitiated the trial and affected the legality of the conviction. I reserve my opinion, however, as to the view given by Rowland J. of the Patna High Court that the disqualification of the order of conviction's appealabillity attaches strictly to a case where the trial Court convicts the accused on his own plea alone without any aid or consideration of any evidence adduced before him.

10. In this view of the matter, coming to the present case, the accused's plea of guilty is based upon his confession of the facts eh charged, namaly, that he was attempting to transport contraband foodgrains from the right side of the local sector of Indravati river to its left. If such transport does not amount to am offence in law for lack of delegation to the Provincial Government by the the Central Government of the power of banning transport, his conviction cannot be held determined by his plea, We have, therefore, to consider the contention of the learned counsel on its merits. I have set forth his contention above. Its merit hinges upon whether delegation with reference to transport from north side to to the south of. the river stands good in relation to the baa of transport from the right side to the left.

11. The course of a river is, in its broad outline, the direction of the line between its source and its mouth. For the purpose of general direction, the line joining the two points would be the indicator. If the line runs from east to west, the two sides of the river should be north and south. The direction north is to the right of man standing with his rear to the east and front to the west. Therefore, in the case of such a river, with its flow from east to west, its right side is generally the north side and left side is the south side, In the case of a river, meandering in its course, the midstreamline of a particular sector considered independently may be such that its right side lies to its east and the left to its west; but taking the river as a whole, it is on the north aide of the river. In the circumstances, in the facts of this particular case, there has been no substaintial variation between the power delegated and the power exercised. Alteration, if any, is merely a matter of form rather than of substance. This alteration in the phraseology of the notification has been adopted for the sake of exactitude and to avoid evasion of the ban. I would, therefore, hold that the power of the Provincial Government does not suffer from lack of delegation by the Centre.

12. In the result, I uphold the order of conviction. With regard to the sentence, however, it errs on the side of severity and calls for reduction, I would, therefore, remit altogether the sentence of imprisonment and alter the sentence to one of fine only. Subject to this modification in the sentence, the revision is dismissed.

Narasimham, J.

13. I agree.


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