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Nagindas Mulchanddas Jariwala and ors. Vs. the State of Gujarat. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR837
AppellantNagindas Mulchanddas Jariwala and ors.
RespondentThe State of Gujarat.
Cases ReferredDhirendra v. Supdt. Remember of L.A.
Excerpt:
.....satisfied the statute must be struck down as violative of article 14. to the same effect are the observations of the supreme court in dhirendra v. however, taking note of the fact that in many matters which come up before the high court, the stakes involved are not too heavy or where the matters are of trifling nature and can be disposed of by a single judge, instead of taking up the time of two judges, the rules provide that those lighter matters both on the civil as well as on the criminal side should be disposed of by a single judge. it is well-settled by now that in a criminal matter the sentence of imprisonment is enhanced only if the high court comes to the conclusion that the sentence imposed by the trial court is grossly inadequate......of the rules regarding the distribution of work between division benches of two judges or more and single judges were amended and the controversy arises under the following circumstances.2. the appellants in criminal appeal no. 123 of 1974 were original accused nos. 1 to 4 in sessions case no. 49 of 1972 in the court of the learned additional sessions judge, surat. each of the four appellants has been convicted under section 120-b and section 420 of the indian penal code or in the alternative under section 420 read with section 34 of the indian penal code and each of them has been sentenced to rigorous imprisonment for one year and a fine of rs. 5.000/- or in default rigorous imprisonment for six months for the offence under section 420 of the indian penal code. no separate sentence is.....
Judgment:

B.J. Divan, C.J.

1. These Appeals have been placed before us for the consideration of the question regarding the vires of one of the Rules framed by this High Court for regulating the procedure on the Appellate Side of the High Court, The Rules were originally framed by the High Court of Bombay as early as in 1960 and they were continued as law in force after the setting up of the State of Gujarat on May 1, 1960. However, in June 1963 some of the Rules regarding the distribution of work between Division Benches of two Judges or more and Single Judges were amended and the controversy arises under the following circumstances.

2. The appellants in Criminal Appeal No. 123 of 1974 were original accused Nos. 1 to 4 in Sessions Case No. 49 of 1972 in the Court of the learned Additional Sessions Judge, Surat. Each of the four appellants has been convicted under Section 120-B and Section 420 of the Indian Penal Code or in the alternative under Section 420 read with Section 34 of the Indian Penal Code and each of them has been sentenced to rigorous imprisonment for one year and a fine of Rs. 5.000/- or in default rigorous imprisonment for six months for the offence under Section 420 of the Indian Penal Code. No separate sentence is passed on the remaining count. Under the Rules of the High Court, since the substantive sentence of imprisonment was less than three years, the matter was placed before a Single Judge of this Court, M.C. Trivedi J. We may point out that after the appeal was filed, a Criminal Revision Application No. 267 of 1973 has been Sled by the State of Gujarat praying for enhancement of the sentence against these four appellants and original accused No. 5 who has also preferred a separate Criminal Appeal. When the matters were called out before M.C. Trivedi J., Mr. Shethna, learned advocate appearing for the appellants in Criminal Appeal No. 123 of 1973 contended that Sub-clause (i) of Clause 1 of Part II dealing with Criminal Matters in Rule 2 of Chapter I of the Bombay Appellate Side Rules was ultra vires the Constitution as it offended Article 14 of the Constitution. The relevant Rule is in these terms:

2. Save as otherwise expressly provided by any law in force or by these rules, a single Judge may dispose of the following matters:

xx xx xx xx xx

II. CRIMINAL.

I. Appeals against convictions in which only a sentence of fine or of imprisonment for a period not exceeding three years, with or without fine, has been imposed except (i) where a notice of enhancement of sentence has been issued where the accused has been sentenced for a term of 2 years or more and (ii) where a notice has been issued to show cause why his conviction should not be altered to one of an offence punishable with death or transportation for life.

Mr. Shethna contends that Sub-clause (i) provides for a case where a sentence of imprisonment of two years has already been imposed by the trial Court and a notice of enhancement has been issued by the High Court and the matter has to be placed before a Division Bench but in all other cases even though notice of enhancement might have been issued, so long as the sentence of imprisonment is less than two years, the case would be heard and ultimately disposed of by a Single Judge of the High Court. We may point out that under Rule 1 of Chapter I, the Civil and Criminal jurisdiction of the Court shall, except in cases where it is otherwise provided for by any law in force or by these Rules, be exercised by a Division Court consisting of two or more Judges. The main argument of Mr. Shethna was that this classification between cases where the sentence is of less than two years or more and a notice of enhancement has been issued and cases where sentence is less than two years and notice of enhancement is issued has no rational basis and therefore, it must be struck down under Article 14 of the Constitution. Since the matter involved the question of vires of the Rule, M.C. Trivedi J., has referred this point regarding the vires to this Division Bench.

3. The principles which are applicable to challenges of this type have been now well-settled and in Kangshari Haider v. State of West Bengal : [1960]2SCR646 , Gajendragadkar J., as he then was, delivering the judgment of the majority of the learned Judges of the Supreme Court has observed in paragraph 19 of his judgment at page 464:

In considering the validity of the impugned statute on the ground that it violates Article 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the Court should apply the dual test in examining its validity. Is the classification rational and based on intelligible differentia; and, has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied the statute must be held to be valid; and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry. If either of the two tests is not satisfied the statute must be struck down as violative of Article 14.

To the same effect are the observations of the Supreme Court in Dhirendra v. Supdt. Remember of L.A., A.I.R. 1954 S.C. 424 where also these dual tests were applied by the Supreme Court while considering the challenge to a statutory provision on the ground of alleged violation of Article 14.

4. In the instant case it must be borne in mind that Rules 1 and 2 of Chapter 1 of the Appellate Side Rules deal with the procedure for distribution of work amongst Single Judges and Division Benches consisting of two or more Judges of the High Court. Ordinarily, as provided by Rule 1 unless specifically provided by the rules or by any law for the time being in force, the Civil and Criminal jurisdiction of the Court is to be exercised by a Division Court consisting of two or more Judges. However, taking note of the fact that in many matters which come up before the High Court, the stakes involved are not too heavy or where the matters are of trifling nature and can be disposed of by a single Judge, instead of taking up the time of two Judges, the rules provide that those lighter matters both on the civil as well as on the criminal side should be disposed of by a single Judge. One of the main objects in providing that a single Judge should dispose of lighter type of cases is that the work which goes on accumulating before the High Court should be disposed of as quickly as possible and there should not be many pending matters before the High Court. Since the smaller matters can be disposed of by a single Judge, Part I of Rule 2 deals with those civil matters which a Single Judge can dispose of and enacts that the lighter matters can be disposed of by a Single Judge.

5. Bearing this scheme in mind, when one turns to Part II of Rule 2 which deals with distribution of work on the Criminal side, it provides that ordinarily appeals against convictions in which only a sentence of fine has been imposed or of imprisonment for a period not exceeding three years, with or without fine has been imposed shall be disposed of by a Single Judge. Where, however, a notice of enhancement of sentence has been issued in cases where the accused has been sentenced for a term of two years or more, the case will have to be heard by a Division Bench. It is true that Sub-clause (i) of Clause 1 of Part II provides that where the accused has been sentenced to a term of less than two years and a notice of enhancement has been issued the case would be disposed of by a Single Judge. The rational principle behind this division between the work of a Single Judge and the work of a Division Bench consisting of two or more Judges is that cases involving lesser terms of imprisonment where judicial mind has already been applied and sentence of upto three years has been passed should be disposed of by a Single Judge. When, however, sentences of two years or between two years and three years have already been imposed by the trial Court and the High Court issues a notice of enhancement, it means that the High Court itself finds at the time of issuing the notice of enhancement that even the sentence of two years would be inadequate if the conviction is upheld. In such circumstances it is obvious that the matter would be a serious matter which would require to be disposed of by a Bench consisting of two Judges or more than two Judges. It is well-settled by now that in a criminal matter the sentence of imprisonment is enhanced only if the High Court comes to the conclusion that the sentence imposed by the trial Court is grossly inadequate. Therefore, when one judicial mind has already been applied and the trial Court has taken the view that the accused deserves the sentence of imprisonment of two years or more and in addition to that application of the judicial mind, the High Court at the time of issuing the enhancement notice also applies its judicial mind and issues the notice of enhancement, it would mean that according to the High Court if the accused is found to be guilty, then the sentence of two years would be grossly inadequate and a much heavier sentence is required to be imposed. On the other hand where the sentence of imprisonment imposed by the trial Court is less than two years and the High Court applies its mind and issues a notice of enhancement, it would mean that the Single Judge who would be dealing with the matter would dispose it of and if he enhances the sentence after upholding the conviction, he would do so. It must be pointed out that except as regards sentence of death there is no restriction either in law or under the Rules on the power of a Single Judge of this Court in passing any sentence provided the matter is placed before him in the normal course. It is only if sentence of less than two years has been imposed and a notice of enhancement has been issued that a Single Judge would dispose of the matter. It is true as has been contended on behalf of the appellants before us that the benefit of collective deliberations should be given to a case according to the scheme of the Rules when the case is a serious case where a sentence of more than three years has already been imposed by the trial Court or is likely to be imposed by the High Court after enhancing the sentence. Bearing in mind this Scheme of the Rules and the aim of reducing the accumulation of work in the High Court, the High Court wanted that the lighter cases are disposed of by Judges sitting singly. The provision of this Sub-clause (1) of Clause 1 of Part II of Rule 2 fits in with the general scheme of the Rules which we have discussed so far. Ordinarily the High Court does not enhance the sentence unless the sentence has been found to be grossly inadequate. Therefore, when the classification has been made by Sub-clause (i) of Clause 1 of Part 11 of Rule 2, the classification is on a rational basis, namely, to see to it that lighter cases are disposed of by a Single Judge and such cases do not accumulate in the High Court. At the same time provision has got to be made to see that really serious cases go before a Division Bench of two or more Judges and that is why the Sub-clause (i) which is under challenge provides that where the trial court has already imposed a sentence of more than two years and a notice of enhancement has been issued, the case will go before a Bench consisting of two or more Judges. There is no question of there being no rational nexus between the object sought to be achieved and the provision of that particular rule. It is equally clear that there is a clear rational nexus between the classification and the object sought to be achieved. Under these circumstances it is obvious that the provision of Sub-clause (i) of Clause I of Part II of Rule 2 of Chapter I satisfies the dual test mentioned by Gajendregadkar J., In Kangshari Haldar's case (supra).

Under these circumstances we hold that the sub-clause is Intra vires and does not violate Article 14 of the Constitution. We, therefore, answer the point referred to us accordingly.


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