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State of Gujarat Vs. Purani Jagatpa Wandas Guru Bhakti Jiwandas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1983)22GLR895
AppellantState of Gujarat
RespondentPurani Jagatpa Wandas Guru Bhakti Jiwandas
Cases ReferredIn State of Kerala v. Neelakantan (supra
Excerpt:
- - 1. this revision application raises certain interesting questions regarding the interpretation of sub-sections (2) and (4) of section 11 of the probation of offenders act, 1958, hereinafter called 'the act'.2. the relevant facts, briefly stated, run as under: 1,25,000/- only and failed to account for the balance of rs. demands were made by the chief kotheri as well as the acharya maharaj for the said balance but the respondent and his companions turned a deaf ear to the demands and hence the chief kotheri was constrained to lodge a complaint (exhibit 15) for misappropriation of the trust funds at the chaklasi police station. so far as the present respondent is concerned, the learned magistrate while convicting him under section 406 of the indian penal code directed that he be.....a.m. ahmadi, j.1. this revision application raises certain interesting questions regarding the interpretation of sub-sections (2) and (4) of section 11 of the probation of offenders act, 1958, hereinafter called 'the act'.2. the relevant facts, briefly stated, run as under:according to the prosecution there is a swaminarayan temple situate in village vadtal which is administered by a registered public trust under a scheme formulated by this court. under the scheme the acharya maharaj is appointed the custodian-trustee and the complainant purani shantipriyadasjee the chief executive authority (chief kotheri) of the temple. every year 'nam-dharmada' money is collected from the followers of the swaminarayan sect for which letters of authority ('agnya patra-mohor chhap') are issued to.....
Judgment:

A.M. Ahmadi, J.

1. This Revision Application raises certain interesting questions regarding the interpretation of Sub-sections (2) and (4) of Section 11 of the Probation of Offenders Act, 1958, hereinafter called 'the Act'.

2. The relevant facts, briefly stated, run as under:

According to the prosecution there is a Swaminarayan Temple situate in village Vadtal which is administered by a registered public trust under a Scheme formulated by this Court. Under the Scheme the Acharya Maharaj is appointed the Custodian-Trustee and the complainant Purani Shantipriyadasjee the Chief Executive Authority (Chief Kotheri) of the temple. Every year 'Nam-Dharmada' money is collected from the followers of the Swaminarayan sect for which Letters of Authority ('Agnya Patra-Mohor Chhap') are issued to different Tyagis. Accordingly the respondent was issued one such Agnya Patra, Exhibit 22, dated 23/24th November, 1977 for the period from Kartak Sudi 14th of Samvat Year 2034 to Chaitra Sudi 15th of Samvat Year 2034 whereby he was authorized to collect 'Nam-Dharmada' from the followers of the Swaminarayan sect residing in Bombay, Pune, Nasik, Kalyan and Madras. The respondent was under the terms of the said 'Agnya-Patra' given receipt-books for issuing receipts to those devotees who contributed to 'Nam-Dharmada' and was bound to account for the same. The respondent along with two others went to the places wherefrom he was authorized to collect 'Nam-Dharmada' and he collected a substantial amount of Rs. 2,14,359-75 ps. from the devotees out of which he was entitled to deduct the expenses of Rs. 782-85 ps. and deposit the balance with the Chief Kotheri of the trust. However, instead of depositing the full amount, the respondent and his two companions deposited a sum of Rs. 1,25,000/- only and failed to account for the balance of Rs. 88,576-90 ps. Demands were made by the Chief Kotheri as well as the Acharya Maharaj for the said balance but the respondent and his companions turned a deaf ear to the demands and hence the Chief Kotheri was constrained to lodge a complaint (Exhibit 15) for misappropriation of the trust funds at the Chaklasi Police Station. An offence under Section 406 of the Indian Penal Code was registered and the respondent and his two companions were charge-sheeted and put up for trial before the learned Chief Judicial Magistrate, Nadiad, who by his order dated 19th December 1979 convicted the respondent and his two companions under Section 406 of the Indian Penal Code. The two companions of the present respondent were directed to suffer rigorous imprisonment for one year and to pay a fine of Rs, 1,000/-, in default, to suffer rigorous imprisonment for six months. So far as the present respondent is concerned, the learned Magistrate while convicting him under Section 406 of the Indian Penal Code directed that he be released on probation of good conduct on his executing a bond in the sum of Rs. 2,0001/- with one surety for like amount for a period of three years 'and in the meantime to keep the peace and be of good behaviour under Section 4(1) of the Act. By the said order the present respondent was placed under the supervision of the Probation Officer, Nadiad, during the aforesaid period of three years. Against the said order of conviction, the present respondent and his two companions preferred an appeal, being Criminal Appeal No. 148 of 1979, which was heard and disposed of by the learned Additional Sessions Judge, Nadiad, who by his order dated 24th January 1980 confirmed the conviction of the present respondent but set aside the conviction and sentence imposed upon his two companions. Against the said order of confirmation of conviction the present respondent filed Revision Application No. 175 of 1980 but the said Revision Application was rejected in limine on 28th April 1980. On 21st April 1980 the State preferred the present Revision Application under Section 11(4) of the Act challenging the legality and propriety of the order passed under Section 4 of the Act.

3. The respondent, though served, has not put in an appearance in this Court. As certain important questions regarding the construction of Sub-sections (2) and (4) of Section 11 of the Act were involved in this Revision Application, we requested Mr. D.K. Shah, Senior Counsel of this Court, to assist us Amicus Curiae and we are grateful to him for the valuable assistance rendered to us on the diverse questions arising in the matter.

4. Section 4(1) of the Act provides that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, not withstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour. Sub-section (1) of Section 11 next provides that notwithstanding anything contained in the Code of Criminal Procedure or any other law, an order under the Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. Sub-section (2) with which we are concerned reads as under:

(2) Notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other then a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court.

Sub-section (3) with which we are not concerned deals with offenders who are under twenty-one years of age. Sub-section (4) next provides as under:

(4) When an order has been mad under Section 3 or Section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law.

The proviso to Sub-section (4) lays down that the appellate Court or the High Court in revision shall not inflict a greater punishment then might have been inflicted by the Court by which the offender was found guilty.

5. On a plain reading of Sub-section (2) of Section 11 it is evident that the propriety of art order passed under Section 3 or Section 4 of the Act by any Court trying the offender (other then a High Court) can be challenged in appeal before the Court to which appeals ordinarily lie from the sentences of the former Court, notwithstanding anything contained in the Code. We have no doubt in our minds that this Sub-section confers a right of appeal de hors the Code of Criminal Procedure, hereinafter called 'the Code'. We however do not find words of limitation in this sub-section to hold that the right of appeal conferred there under is limited to one brought by the accused and the State has no right to challenge the propriety of any order made under Section 3 or Section 4 of the Act. We see no justification for placing a restrictive or narrow interpretation on the language of Sub-section (2) so as to confine the right of appeal to the accused only and deny it to the State. If such was the intention of the Parliament it could have been made manifest by use of language which would unmistakably show that only the accused can appeal against such an order. In our opinion, therefore, the right of appeal conferred under this sub-section is available both to the State as well as the accused. No doubt the right of appeal envisaged under this sub-section is limited to challenging the propriety of the order made under Section 3 or Section 4 of the Act by the Court trying the offender. In this view that we take we are fortified by authority.

6. In State v. Jagdish , the accused was convicted for the commission of offences punishable under Sections. 338, 429, 279 and 337 of the Indian Penal Code and sentenced to rigorous imprisonment for four months, six months, two months and two months respectively; the sentences to run concurrently. Having convicted and sentenced the accused as above, the learned Magistrate made an order under Section 4(1) of the Act and instead of sending the accused to jail, directed that he be released on bail on his entering into a bond in the sum of Rs. 1000/- with a surety in the like amount to appear and receive the sentence when called upon during one year and in the meantime to keep the peace and be of good behaviour. The State filed a Revision Application in the Court of the learned Sessions Judge praying that the order passed under Section 4(1) of the Act be set aside. The learned Sessions Judge made a reference to the High Court recommending (he setting aside of the order passed under Section 4(1) of the Act, The learned Sessions Judge was of the opinion that the learned Magistrate was not competent to sentence the accused and simultaneously give him the benefit under Section 4(1) of the Act. Dealing with Sub-section (2) of Section 11, Lodha, J., observed:

From the language of this sub-section it is clear that the right to prefer an appeal from an order under Section 4 of the Act has been conferred both upon the prosecution as well as upon the accused.

7. In Rajkishore v. Kalusi Sahu A.I.R 1971 Orissa 193, the conviction was under Sections 323 and 325/149 of the Indian Penal Code. The learned Magistrate instead of passing an order of sentence released the offenders under Section 4 of the Act on each of them executing a bond for Rs. 1,000/- to keep peace and be of good behaviour for a period of one year. Rajkishore who had lodged the first information report filed a Revision Application questioning the propriety of the order passed by the learned Magistrate. It was contended on behalf of the offenders that the revision was incompetent as under Section 11(2) of the Act, the complainant had no locus standi to question the order of the learned Magistrate. Misra, J., after reproducing the provisions of Section 11 of the Act observed:

On a proper construction of this provision, it appears reasonable to hold that the appeal envisaged under Section 11(2) of the Act not being against substantive acquittal or conviction, but against the propriety of the order passed under Section 3 or Section 4 of the Act, the intention of the Legislature is to confer such a right both on the prosecution and the accused.

8. Bed, J., of the Rajasthen High Court in Shivcharan v. State , was called upon to construe the provisions of Section 11 of the Act and while doing so, he in clear terms held that Sub-section (2) of Section 11 provides for an appeal against any order passed under Section 3 or Section 4 of the Act.

9. A Division Bench of the Kerala High Court in State of Kerala v. Neelakantan 1974 Cri.L.J. 1107 held that Sub-section (2) of Section 11 provides for a right of appeal to all parties in a proceeding pending before a criminal Court.

10. In State of Gujarat v. Nakubhai Meghabhai Criminal Appeal No. 881 of 1977, one of us (Mankad, J.) had an occasion to deal with the question whether Sub-section (2) of Section 11 of the Act confers a right of appeal and if yes, whether the State can challenge the propriety of an order made under Section 3 or Section 4 of the Act by way of an appeal. Dealing with this question, it was in terms said:

Section 11(2) confers a right of appeal both upon the prosecution as well as upon the accused.

11. We are, therefore, satisfied on a plain reading of Sub-section (2) of Section 11 that it confers a right on the accused as well as the State to challenge the propriety of any order passed under Section 3 or Section 4 of the Act and we do not see any words of limitation in the enactment to cut down the scope of the said provision and restrict or confine it to one conferring a right of appeal on the accused alone. In our opinion, there is no justification for limiting the right of appeal conferred by the said sub-section only to the accused. We, therefore, hold that the right of appeal conferred by this sub-section is available not only to the accused but also to the State.

12. The next question which immediately arises for our consideration is, whether having regard to the fact that the right of appeal is conferred on the State by Sub-section (2) of Section 11 of the Act, the present Revision Application in this Court is competent. Having come to the conclusion that Sub-section (2) of Section II of the Act confers a right of appeal on the State also insofar as it concerns the propriety of the order passed under Section 3 or Section 4 of the Act, there can be little difficulty in coming to the conclusion that ordinarily a Revision Application at the instance of the State would not be competent in this Court. Mr. Vaidya, the learned Public Prosecutor, however, submitted that even if this Court takes the view that a Revision Application at the instance of the State which has failed to avail of the right of appeal under Section 11(2) of the Act is not competent, the State should be permitted to convert this Revision Application into an appeal under Sub-section (2) of Section 11 of the Act. This submission raises the question whether an appeal under the said sub-section would lie to this Court or to the Court of Sessions. In the two cases decided by this Court, to which we shall refer immediately, the view taken is that an appeal under Sub-section (2) of Section 11 of the Act lies to the Sessions Court and not the High Court.

13. In the case of State v. Nakubhai (supra) this Court (Mankad, J.) took the view that the propriety of an order passed under Section 4 of the Act can be assailed by the State before the Sessions Court to which an appeal is competent. It must be pointed out that it was not disputed by the prosecution in that case that an appeal would ordinarily lie against an order of sentence to the Court of Sessions.

14. M.K. Shah, J., in State v. Gabha Mavji (1979) 20 G.L.R. 959 held that in view of Sub-section (2) of Section 11 of the Act, the proper forum for the State to challenge the order passed under Section 4 of the Act is the Sessions Court to which an appeal lies and not under Section 377(1) of the Code to the High Court for enhancement of the sentence. Before the learned Judge also it was not disputed that ordinarily an appeal from sentence of the trial Court would lie to the Court of Sessions and not to the High Court.

15. Sub-section (2) of Section 11 after conferring a right of appeal provides that the appeal shall lie 'to the Court to which appeals ordinarily lie from the sentences of the former Court', meaning thereby the Court trying the offender. In the instant case the offender was tried by the learned Chief Judicial Magistrate, Nadiad. Therefore, his order under Section 4 of the Act can be challenged in appeal before the Court to which appeals ordinarily lie from the sentences awarded by him, notwithstanding the provisions of the Code. Under the old Code before the insertion of Sub-section (1A) in Section 423 of the Code, the power of enhancing the sentence was conferred on the High Court as a Court of Revision and not as an appellate Court. Therefore, under Section 423 of the old Code, the High Court when hearing an appeal could alter the finding under that provision but had to resort to Section 439 for enhancing the sentence to make it consistent with the altered finding After the insertion of Sub-section (1A) to Section 423 by Act 26 of 1955, in an appeal from conviction the High Court was empowered to enhance the sentence notwithstanding anything inconsistent therewith contained in Clause (b) of Sub-section (1) provided that the accused was given an opportunity of showing cause against such enhancement. It was no longer necessary after the insertion of this Sub-suction for the High Court to resort to Section 439 for the purpose of enhancing die sentence as the change effected by the insertion of the new sub-section made it possible for the High Court in exercise of its appellate jurisdiction to enhance the sentence. It must, however, be clarified that by the insertion of the new Sub-section no right of appeal was conferred on the State to seek enhancement of the sentence by way of an appeal but the new provision merely enabled the High Court to enhance the sentence in a conviction appeal if it thought it necessary so to do. So far as the State is concerned, if it was aggrieved by the order of sentence imposed by the trial Court, it could only invoke the revisional jurisdiction of the High Court under Section 439 but could not file any appeal against the order of sentence.

16. After the Code of Criminal Procedure, 1973 came into force, Section 423 of the old Code was modified and re-enacted in Section 396 of the new Code. However, Sub-section (1A) which was introduced by the 1955 amendment in Section 423 of the old Code came to be deleted and instead a right of appeal was conferred upon the State for the first time by Sub-section (1) of Section 377 of the Code. That sub-section provides that save as otherwise provided in Sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other then a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. So far as Sub-section (2) of Section 377 is concerned, it deals with a conviction in a case in which the offence has been investigated by the Delhi Special Police Establishment, with which we are not presently concerned. Sub-section (3) of Section 377 reproduces the proviso to Sub-section HA) of sec 423 of the old Code and lays down that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. (This part confers the benefit which was conferred by Sub-section (6) of Section 439 of the old Code, in more liberal terms). In view of this specific right of appeal conferred on the State under the new Code, Sub-section, (c) came to be added to Section 486 of the Code. Under the old Cod;, therefore, the appeal against the order passed by a Magistrate of the First Class ordinarily lay to the Sessions Court and hence the appeal under Section 11(2) of the Act would also be entertained by that Court and not the High Court. The question then is, whether the introduction of Section 377(1) in the Code has any bearing on the question of forum under Section 11(2) of the Act and, if yes, whether in view of the change in the law an appeal by the State under Section 11(2) of the Act can now be entertained by this Court.

17. Now according to the language of the statute, an appeal under Section 11(2) of the Act lies to the Court 'to which appeals ordinarily lie from sentences of the Court trying the offender, 'Ordinarily under the Code, if a Magistrate passes an order under Section 3 or 4 of the Act instead of sentencing the accused, no appeal for enhancement can lie under Section 377(1) for the simple reason that an order under Section 3 or 4 of the Act is not a sentence, it being in lieu of sentence and, therefore, no question of enhancement of sentence under Section 377(1) can ever arise. However, the moot question as regards the jurisdiction of the Court under Section 11(2) of the Act still survives. Under that sub-section an appeal lies to the Court to which appeals ordinarily lie from the sentences of the trial Court. Sub-section (2) no doubt overrides the provisions of the Code but for the limited purpose of tracing the forum to which an appeal lies, the Code is invoked inasmuch as it says that the appeal shall He to the Court to which appeals ordinarily lie from the 'sentences' of the Court trying the offender. In this view that we take, we are supported by the observations of Beri, J., in Shivcharans case (supra) wherein the learned Judge observes in paragraph 12 of his judgment as under:

The Code of Criminal Procedure is merely available for determining the Court of appeal under its provisions. Other provisions of Code of Criminal Procedure are clearly excluded.

It seems clear to us, therefore, that an appeal under Sub-section (2) of Section 11 will lie to the Court to which an appeal ordinarily lies from the 'sentences' awarded by the Court trying the offender, in the present case, the Chief Judicial Magistrate, Nadiad. We have already pointed out earlier that the right of appeal conferred by Sub-section (2) of Section 11 of the Act is not limited to the accused but enures to the State also. Now, after the introduction of Section 377(1) in the Code, ordinarily an appeal by the State against the order of sentence imposed by the Chief Judicial Magistrate would lie to this Court. Under Section 11(2) of the Act, for the limited purpose of determining the forum to which an appeal lies, the order passed by the trial Court under Section 3 or Section 4 of the Act must be construed as an order of sentence. Against an order of sentence, so far as the State is concerned, an appeal ordinarily lies under the newly inserted Section 377(1) of the Code to this Court and to no other Court. Therefore, reading Sub-section (2) of Section 11 of the Act with Section 377(1) of the Code in the context of an appeal by the State, we are of the view that such an appeal would lie to the High Court. The contrary view expressed in the two decisions cited earlier does not lay down the correct law.

18. That takes us to the question whether we should permit the State to convert this Revision Application into an appeal under Sub-section (2) of Section 11 of the Act read with Section 377(1) of the Code. The appeal contemplated under Sub-section (2) of Section 11 of the Act is one against the order of the Court trying the offender, meaning thereby the trial Court, and not against any order passed by the appellate Court. In the instant case the trial Court passed the impugned order on 9th December 1979. The present Revision Application was filed by the State on 21st April 1980. The question which, therefore, arises for consideration is, whether the appeal would be within time if we permit the State to convert this Revision Application into an appeal under Sub-section (2) of Section 11 of the Act.

19. The period of limitation is prescribed under Clause (b) of Article 115 of the Limitation Act. to be sixty days from the date of the sentence. But the Article refers to an appeal provided under the Code of Criminal Procedure. So far as an appeal under Section 11(2) of the Act is concerned, it is clearly not an appeal under the Code arid, therefore, Article 115(b) can have no application. If this view that we take is correct, the necessary consequence is that there is no period of limitation prescribed for an appeal under Section 11(2) of the Act since the special statute providing for an appeal against the propriety of an order passed under Section 3 or Section 4 of the Act is totally silent on this point. If no period of limitation is prescribed, we would be inclined to think that the State can present an appeal under Section 11(2) of the Act within a reasonable period. In taking this view we are fortified by a decision of the Division Bench of the Calcutta High Court in A.M. Sinhav. Prohlad Chandra : AIR1970Cal437 . In that case the Calcutta High Court came to the conclusion that Sub-section (2) of Section 11 of the Act provides for an appeal from an order passed under Section 3 or Section 4 of the Act notwithstanding anything contained in the Code of Criminal Procedure. Dealing with the question of limitation Their Lordships observed as follows:

Article 115 provides for a limitation of sixty days for an appeal under Code of Criminal Procedure, 1898 from any other sentence or any order or any order not being an order of acquittal to the High Court. We have already pointed out that the right to appeal against the order passed by a Presidency Magistrate is not under the Code of Criminal Procedure but under Section 115 of the Probation of Offenders Act and Article 115, I.L. Act, has therefore no application. No limitation is provided for under the amended Limitation Act where right to appeal flows from some Act other then the Criminal P.C. and the period therefore must be taken to be a period which appears to be reasonable to the Court, in the facts and circumstances of the case.

While determining the question whether the appeal was filed within a reasonable period, the Court referred to Article 131 of the Limitation Act which prescribes a period of ninety days for invoking the revisional jurisdiction of the High Court against an order of sentence under the Code. However, in doing so, the attention of the Court was not invited to the provisions in Chapter XXXVI of the Code which also prescribe the period of limitation for taking cognizance of certain offences. In our opinion, the question whether an appeal under Section 11(2) of the Act is filed within a reasonable period or not would have to be determined on facts and in the circumstances of each case and in doing so, the Court would have regard to all the relevant provisions having a bearing on the question of limitation including Article 131 of the Limitation Act and Chapter XXXVI of the Code. In the present case, if we were required to go into the question whether an appeal, if filed on 21st April 1980, on which date the present Revision Application was filed, could be said to have been filed within a reasonable period, we would have in the circumstances of this case answered in the affirmative. The question of permitting the State to convert this application into an appeal, however, does not arise, in the view that we take on the question of merger.

20. It was, however, urged by Mr. Shah that the respondent had filed an appeal against the order of conviction passed by the learned trial Magistrate and that appeal came to be disposed of by the learned Additional Sessions Judge, Kaira at Nadiad, on 24th January 1980 whereby the conviction of the respondent was confirmed. Mr. Shah, therefore, pointed out that under Sub-section (4) of Section 11, it was open to the State to request the appellate Court to set aside the order made under Section 4 of the Act and in lieu thereof to pass an order of sentence on the respondent. In the submission of Mr. Shah under Sub-section (4) of Section 11 it is open to the appellate Court in an appeal brought by the accused to pass an order of sentence after setting aside the order passed under Section 3 or Section 4 of the Act. In support of this contention Mr. Shah placed reliance on the observations of Beri, J. in Shivcharan's case (supra) to the following effect :

Moreover, in the case before me the accused Shiv Charan had also appealed and the learned Additional Sessions Judge could have acted under Sub-section (4) of Section 11....

In the present case we are not required to decide whether in an appeal brought by the accused against his conviction the appellate Court can acting under Sub-section (4) of Section 11 of the Act set aside the order passed under Section 3 or Section 4 of the Act and in lieu thereof pass an order of sentence. This is so because we are inclined to take the view that after the appellate Court heard the appeal on merits and confirmed the order of conviction, the order of the trial Court merged in that of the appellate Court.

21. In Gojer Brothers v. Ratan Lal : [1975]1SCR394 , Chandrachud J., (as he then was) while speaking for the Supreme Court broadly stated the juristic principle of merger in paragraph 10 as under:

The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more then one operative order governing the same subject-matter. Therefore the judgment of an inferior Court, if subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the judgment of the inferior Court loses its identity by its merger with the Judgment of the superior Court.

The different facets or nuances of this principle we need not touch as we consider it proper to confine ourselves to the facts of the present case without entering into a doctrinaire elaboration of the different situations calling for the application of this principle. In the instant case the respondent was convicted by the learned trial Magistrate and he challenged that order of conviction in appeal but the learned Additional Sessions Judge, Nadiad, dismissed his appeal and thereby confirmed the trial Court's order of conviction. It is thus clear that the order of the subordinate Court was examined on merits at a full fledged hearing and was ultimately confirmed by the superior Court. If the broad principle quoted above is applied, there can be no doubt that the whole of the learned trial Magistrate's order would merge in the appellate order and hence there would be no question of filing an appeal under Section 11(2) of the Act as an appeal under that sub-section lies against the propriety of the order passed by the 'Court trying the offender.' In course of time this principle of merger came to be extended even to proceedings before quasi-judicial and executive authorities and we see no reason, at least none is pointed out to us, why it should not apply to criminal cases. On the contrary, our view receives support from the decision of the Supreme Court in U.J.S. Chopra v. State of Bombay the : 1955CriLJ1410 where the application of this principle to criminal cases was accepted. The difference of opinion was only on the limited question whether summary rejection of an appeal or revision would merge the lower Court's order in the order of the superior Court.

22. It was, therefore, submitted by Mr. Shah that once the order passed by the trial Court merged in the order of the appellate Court no appeal under Sub-section (2) of Section 11 of the Act could lie. Mr. Shah, therefore, submitted that having regard to the fact that the impugned order passed by the learned trial Magistrate had merged in the order of the appellate Court, no useful purpose will be served by permitting the State to convert this Revision Application into an appeal under Sub-section (2) of Section 11 of the Act because such an appeal would be infructuous. To that Mr. Vaidya, the learned Public Prosecutor, countered by pointing out that under Sub-section (4) of Section II of the Act the High Court in exercise of its revisional jurisdiction can set aside the impugned order and in lieu thereof pass an order of sentence on the offender in accordance with law, if the facts and circumstances of the case so warrant. According to him under Sub-section (4) of Section 11 it is open to the High Court to invoke its revisional jurisdiction if the facts of the case so demand under Section 397(1) read with Section 401(1) of the Code. Now under Section 397(1) the High Court is empowered to call for and examine the record of any proceeding before any inferior criminal Court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, or as to the regularity of any proceedings of such inferior Court. Under Sub-section (1) of Section 401 the High Court while exercising jurisdiction under Section 397 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 of the Code. Sub-section (4) of Section 11 of the Act takes cognizance of the power of the High Court insofar as its revisional jurisdiction under the Code is concerned and that is why it does not employ the non-obstinate clause employed by Sub-section (2) thereof. That is why Sub-section (4) in terms provides that the High Court may in exercise of its power of revision set aside such order and in lieu thereof pass a sentence on an offender according to law. Mr. Shah, however, pointed out that under Sub-section (4) of Section 401 where an appeal lies and no appeal is brought, no proceeding by way of revision can be entertained by the High Court at the instance of the party who could have appealed. According to Mr. Shah, under Sub-section (2) of Section 11 of the Act, the State could have challenged in appeal the propriety of the order passed under Section 4 of the Act and since it did not do, so before the disposal of the appeal filed by the accused against the order of conviction, no revision application at its instance can be entertained. We find it difficult to persuade ourselves to Mr. Shah's view point for the simple reason that Sub-section (4) of Section 401 speaks of an appeal under the Code and not an appeal under any other statute. Since the Code does not provide for an appeal against an order passed under Section 3 or Section 4 of the Act and the appeal provided is under a special law, namely, Sub-section (2) of Section 11 of the Act, Sub-section (4) of Section 401 can have no application and it would be open to the High Court in exercise of its revisional jurisdiction to set aside the order passed under Section 4 and in lieu thereof to pass a sentence according to law if the facts and circumstances of the case so warrant.

23. In State of Kerala v. Neelakantan (supra) the Kerala High Court after considering the case law on the subject observed as under:

The conclusions and opinions expressed in these cases, however, do not militate against the powers of the High Court in revision in interfering with an illegal or improper order passed by lower Courts. There is no doubt that the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever the facts calling for its exercise are brought to the notice of the Court and it matters little how and by whom those facts are brought to the notice of the High Court. The revisional jurisdiction of the High Court is in its real purpose not a mere power but also a duty. The bar under Sub-section (5) of Section 439, Criminal Procedure Code can operate only against a party and cannot operate to deprive the High Court of its undoubted jurisdiction.' In taking the above view, the Division Bench of the Kerala High Court' revised the orders passed by the trial Magistrate under Sections 3 and 4 of the Act in exercise of its revisional jurisdiction. To us, therefore, it appears clear that notwithstanding sub-section (4) of Section 401 of the Code, the High Court can in exercise of its revisional jurisdiction recognised by sub-section (4) of Section 11 of the Act, set aside any order passed under Section 3 or Section 4 of the Act and substitute it by an order of sentence if the facts so warrant.

24. In the instant case, since we have come to the conclusion that on the merger of the trial Court's order in the appellate order, an appeal under Sub-section (2) of Section 11 of the Act is no more competent, we must hold that this Court is empowered under Section 11(4) of the Act to examine the propriety and legality of the order made under Section 4 of the Act and if the facts so warrant, to set it aside and in lieu thereof to sentence the offender in accordance with law. The revisional jurisdiction can be invoked by the High Court suo motu after examining the record of any proceedings before an inferior criminal Court within its jurisdiction or when its attention is invited by any party including the State to the impugned order, the propriety whereof appears to be doubtful. In such cases, notwithstanding the fact that the High Court derived knowledge through the State, it is open to the High Court to exercise jurisdiction under Sub-section (4) of Section 11 of the Act and to set aside the impugned order and substitute it by an order of sentence. We are, therefore, of the opinion that in the instant case the present Revision Application is competent.

25. We now summarise our conclusions: (1) Section 11(2) of the Act confers a right of appeal notwithstanding an)thing contained in the Code; (2) such right of appeal is conferred both on the accused as well as the prosecution (State); (3) the appeal can lie only against the order of the Court trying the offender; (4) the challenge in such an appeal is limited to the propriety of the order made under Section 3 or Section 4 of the Act; (5) Article 115 of the Limitation Act, 1963 is not attracted to such an appeal and hence the appeal can be filed within a reasonable period; (6) what should be the reasonable period would depend on the facts and circumstances of each case; (7) the forum for such an appeal by the State is the High Court and not the Sessions Court (the view to the contrary expressed in Nakubhai's case (supra) and in Gabha Mavji's case (supra) does not lay down the correct law) (8) if an appeal is decided on merits after hearing both sides, even if the order of the trial Court is confirmed, it merges in the order of the appellate Court and no appeal can then lie against the appellate Court's order; (9) the High Court can exercise revisional jurisdiction under Section 15(4) of the Act against the order of the appellate Court or against the trial Court's order if no appeal is filed regardless of the fact as to how and by whom the High Court's attention is drawn to the facts of that case; (10) the restriction contained in Section 401(4) of the Code does not have any relevance to the exercise of revisional powers by the High Court even if the attention of the High Court is drawn by the party which could have appealed; and (11) the High Court will exercise its revisional jurisdiction sparingly.

26. That takes us to the last question whether the facts and circumstances of the present case warrant the exercise of revisional jurisdiction by this Court. From the facts which we have set out in the opening part of this judgment, it becomes clear that the Agnya Patra (Letter of Authority) and the receipt-books were issued to the respondent and it was the respondent who had collected the amount of Rs. 2,14,359-75 ps. from the devotees, albeit with the assistance of two others, and had accounted for Rs. 1,25,000/- only and failed to deposit the balance of Rs. 88,576-90 ps. Demands were made from the respondent time and again by the Chief Kotheri as well as the Acharya Maharaj but he and his companions turned a deaf ear to the demands and hence the complaint, Exhibit 15, for misappropriation of the trust funds came to be filed at the Chaklasi Police Station. The two companions of the present respondent were convicted under Section 406 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for six monthe by the learned trial Magistrate. No doubt, their conviction came to be set aside by the learned Additional Sessions Judge, Nadiad, in appeal. However, the conviction of the present respondent was confirmed in appeal by the learned Additional Sessions Judge. Now the facts which weighed with the learned trial Magistrate in granting the benefit of Section 4 of the Act to the respondent are: (1) the respondent is an old man aged about 70 years: (2) he has renounced the world and has become a Tyagi since many years; (3) he is staying in the Swaminarayan temple at Vadtal where he sings Bhajans; (4) he is physically weak and is suffering from paralysis of his left hand and leg; and (5) the Probation Officer has recommended that he should be given the benefit under the Act on condition that he refunds the amount involved in this case. It must be remembered that the Agnya Patra-Mohor Chhap is issued to a Tyagi only because he has renounced the world and is not likely to indulge in acts of misappropriation of money. Such a letter of authority is issued year after year for the collection of Nam-Dharmada from the devotees of the Swaminarayan sect to various Tyagis and if a Tyagi, such as the present respondent misappropriates the funds so collected and refuses to account for the same or deposit the same on repeated demands made by the Acharya Maharaj as well as the Chief Kotheri, the faith and confidence reposed in such Tyagis not only by the Acharya Maharaj and the Chief Kotheri but also by the thousands of devotees who pay the amount on the basis of the letter of authority issued to a Tyagi would be rudely shaken. The fact that the respondent has suffered a stroke of paralysis (we do not know whether before the commission of the crime or afterwards) may invoke pity but not sympathy because those who attire themselves in saffron robes and use religion as an instrument for collecting and misappropriating trust funds can never expect sympathy from a Court of law. Besides, the object of granting benefit under the Probation of Offenders Act is to reform a criminal but what is there to reform in a man who in the December of his life while posing to be a Tyagi misappropriates a substantial amount and then puts forward the bait that he will repay it to obtain the benefit of Section 4? But from where is he going to get funds to repay unless he has secreted the money, because he is not gainfully employed? Even during the proceedings till his conviction he did not refund the money but merely made a hollow promise to pay. We say hollow because, placed as he is, be is in no position to repay unless he has secreted the misappropriated amount, in which case also he does not deserve sympathy. The net result is that the trust has lost its money, the respondent has kept the money or spent it away and he ultimately goes scot free on a mere premise to repay, which promise he cannot in the circumstances keep. At this age what is there to reform in a man like the respondent? In order that others like him may not misuse religion, it is necessary to set an example.

27. We also fail to understand how the learned trial Magistrate ess justified in passing an order of sentence on the two understudies of the respondent while giving the benefit of Section 4 of the Act to the principal accused. We are conscious of the fact that he is an old and infirm person suffering from partial paralysis (does not appear to be immobilised) but that would at best justify an order of simple imprisonment but not an order under Section 4 of the Act.

28. We, therefore, think (he ends of justice will be met if the respondent is directed to suffer simple imprisonment for six monthe and to pay a fine of Rs. 2.000/-, in default, to suffer simple imprisonment for two monthe. The rule is made absolute accordingly. He shall surrender to his bail within four weeks.


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