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Mukand Lal Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1979CriLJ105
AppellantMukand Lal
RespondentThe State and anr.
Cases ReferredSanta Singh v. The State of Punjab
Excerpt:
.....caused by the same it has still to be seen what was the order required to be filed along with the appeal filed against the order dated 20-9-1976. for answering this question reference is required to some provisions at the criminal procedure code. the effect of the judgment passed on 20-9-1976 re-imposing the sentence on the petitioner had the effect of reviving both the conviction as well as the sentence and was, thereforee, the judgment that the petitioner could be said to have a grievance against. no appeal could possibly be filed against the order dated 15-1-1976 at the time the appeal was filed against the order dated 20-9-1976 because such an appeal would be clearly time barred. however, shri bahri in his order dated 1-9-1976 protected the petitioner to the extent of saying that..........the revision has come to this court after the learned additional sessions judge has held that the appeal filed by the petitioner was barred by time and accordingly no relief was given by the additional sessions judge. in order to appreciate the question of limitation it is necessary to deal with the history of the case because, as will be apparent, this was not the first time the petitioner had come in appeal to the additional sessions judge.2. the petitioner was initially convicted by shri j. d. kapur, metropolitan magistrate and on appeal which was crl. a. 17 of 1976 before shri p. k. bahri, additional sessions judge, delhi, it was urged that there had been non-compliance with the provisions requiring the accused to be heard on the question of sentence. the decision of the supreme.....
Judgment:
ORDER

Dalip K. Kapur, J.

1. This is a revision arising from a conviction under Section 7 read with Section 16 of the Prevention of Food Adulteration Act in which the petitioner was sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000/-. The revision has come to this Court after the learned Additional Sessions Judge has held that the appeal filed by the petitioner was barred by time and accordingly no relief was given by the Additional Sessions Judge. In order to appreciate the question of limitation it is necessary to deal with the history of the case because, as will be apparent, this was not the first time the petitioner had come in appeal to the Additional Sessions Judge.

2. The petitioner was initially convicted by Shri J. D. Kapur, Metropolitan Magistrate and on appeal which was Crl. A. 17 of 1976 before Shri P. K. Bahri, Additional Sessions Judge, Delhi, it was urged that there had been non-compliance with the provisions requiring the accused to be heard on the question of sentence. The decision of the Supreme Court in Santa Singh v. The State of Punjab : 1976CriLJ1875 , was referred and this contention was accepted by the learned Additional Sessions Judge who remanded the case to the lower court after setting aside the sentence and directed the lower court to afford an opportunity of hearing | in terms of Section 235(2) in the light of the Supreme Court's judgment. It was further said as follows:

It is, however, made clear that after the proper sentences have been awarded after affording necessary opportunity of hearing, the appellant would be at liberty to file a fresh appeal challenging his conviction and the sentence.

After the remand the Metropolitan Magistrate passed an order on 20-9-1976. He said that he did not find any good ground for deviating from the original sentence passed against the accused and in effect affirmed his previous judgment. The petitioner then appealed again and the appeal was heard by Shri K. B. Andley, Additional Sessions Judge, Delhi. The appeal was filed without a certified copy but later the certified copy of the order dated 20-9-1976 was filed. A preliminary objection regarding the appeal was raised on the footing that the appeal should have been accompanied by the earlier judgment of the Magistrate. In fact, the contention raised was that the original judgment dated 15-1-1976 was the judgment by which the petitioner was convicted and sentenced and although the sentence was set aside on appeal by the order of Shri P. K. Bahri, Addl. Sessions Judge, passed on 1-9-1976 the conviction remained and the second order merely affirmed the original period of sentence. It was, thus urged that in order to have a properly constituted appeal before the Additional Sessions Judge it was necessary for the accused to file a certified copy of the original judgment as well as the judgment passed after remand. This point had been accepted by the learned Additional Sessions Judge and it has been held that the appeal is improper and, thereforee, barred by limitation Against this order this revision has been brought to this Court.

3. The problem which has now to be dealt with is whether this view of the Additional Sessions Judge is correct and if not what is the proper decision in law. I may at once say that the point is an unusual one and could never have arisen but for the remand by Shri P. K. Bahri, Addl. Sessions Judge, by the order dated 1-9-76. Normally, in a criminal case the Appellate Court has no power to remand to the trial Court except for the purpose of retrial. Hence, the remand was in a sense irregular. However, assuming the remand to be perfectly in order because in any case no harm is caused by the same it has still to be seen what was the order required to be filed along with the appeal filed against the order dated 20-9-1976. For answering this question reference is required to some provisions at the Criminal Procedure Code. The provisions of Section 382 are to the effect that every appeal shall be in writing etc. and shall be accompanied, unless dispensed with, by a copy of the judgment or order appealed against. The question here is which is this copy which he has to file. It may be said that the petitioner is aggrieved not only by the order fixing or rather re-fixing the sentence which was passed on 20-9-76 but he is also aggrieved by the original order which was passed on 15-1-76 whereby he was convicted. It can, thereforee, be said that he should file copies of both judgments, On the other hand, it can be said that he had already appealed against the order dated 15-1-76 and that appeal had proved to be successful in the sense that the order of conviction was set aside and the case was remanded back for giving another decision even though that decision may be restricted to sentence only. In any case, if there was no judgment on 20-9-1976 the petitioner need not have filed any appeal because, by the decision of Shri P. K. Bahri, the sentence part of the original judgment had disappeared and the conviction without a sentence was ineffective. I am of the view that when the appeal had been accepted, the original judgment must be deemed to have become ineffective and inoperative. The effect of the judgment passed on 20-9-1976 re-imposing the sentence on the petitioner had the effect of reviving both the conviction as well as the sentence and was, thereforee, the Judgment that the petitioner could be said to have a grievance against. The petitioner, thereforee, had to file an appeal only because of the judgment dated 20-9-1976. It can be said that the learned Metropolitan Magistrate should have reproduced his previous reasoning but in my view that is carrying hyper-technicality to the extreme. Obviously, when he re-affirmed his previous judgment and imposed the same sentence and said that 'I have already discussed this aspect in my original judgment' it is sufficient to note that everything he has previously said has again become effective.

4. The rule contained in Section 382 is a technical rule; it requires an aggrieved person filing an appeal to attach a copy of the judgment appealed against There is no real significance in this copy because when the appeal is heard the whole record is before the appellate Court. The purpose of having a copy of the judgment is merely to give the appellate Court an initial idea of what the case is about at the time of passing interim orders. It is not necessary that this copy need be filed because the section allows the dispensing with the copy. The provision should not be read as creating a disability against a person from filing an appeal. When an accused, as in this case, has filed a copy and it is a copy of the judgment, it is sufficient compliance with this section to enable the appeal to proceed further. If the lower appellate Court wanted another judgment i.e. the initial judgment, the Court could have directed the appellant to file the same but this requirement should not be carried to the extreme of non-suiting the appeal altogether on the ground that that copy has not been filed. In a sense, the appellant had already filed that initial copy when he filed previous appeal and the time of filing an appeal is only 30 days plus the copying time allowed by law. No appeal could possibly be filed against the order dated 15-1-1976 at the time the appeal was filed against the order dated 20-9-1976 because such an appeal would be clearly time barred. However, shri Bahri in his order dated 1-9-1976 protected the petitioner to the extent of saying that when he did file such an appeal it could be an appeal against conviction as well as sentence. To my mind, this is an example of a failure to apply various provisions of law properly. To restore the parties to the proper position, the failure (if any) to file a copy of the earlier order is no failure at all. In any case, that copy should have been dispensed with. After all, Section 382 contains a provision allowing the Court to dispense with a copy. The power to dispense with a copy is to be used in furtherance of justice and not as a denial of justice. When the lower appellate Court saw or thought that the copy was missing it should merely have dispensed with the same and thus allowed the appellant to be heard on the merits. I do not think that Section 382 was enacted as a trap for appellants especially in cases like the present. In the circumstances, I would hold that either the appeal was properly filed or hold that this is a case in which that copy should be dispensed with if it is at all a copy which is required to be filed. In the circumstances, I would allow this revision to the extent that the dismissal of the appeal by the Additional Sessions Judge on the ground that it was barred by time was not proper. This means that I have now the choice of either hearing the case on the merits or directing the parties to reappear before the Additional Sessions Judge for having the appeal heard on the merits.

5. As the parties have been denied a hearing before the appellate Court constituted by law, I think I should not deal with the case myself and should send the case back to the learned Additional Sessions Judge for hearing the appeal. I have also noted that the appellate Court has no power to remand and I would, thereforee, say here that the remand is being made under the inherent power of this Court under Section 482, Cr.P.C. The parties to appear in the Court of Shri K. B. Andley, Additional Sessions Judge on 24-4-1978.


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