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State of Rajasthan Vs. Bhagatram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 376 of 1965
Judge
Reported in1969WLN59
AppellantState of Rajasthan
RespondentBhagatram and anr.
DispositionPetition allowed
Cases ReferredSubedar v. The State
Excerpt:
.....it relates to the acquittal of respondent bhagatram under section 347, 218, 389 and 120-b, indian penal code, is also dismissed' that order can not be considered as the final judgment or order in the case.;as to the question whether the third judge was competent to take a view different from that taken by us so far as the respondent bhagatram is concerned, we are of opiniono that looking at the language of section 429, criminal procedure code, mr. justice jagat narayan had jurisdiction to express the opinion that the respondent bhagat ram should be convicted of offences under sections 120-b, 218, and 347, indian penal code, although in our referring order we had expressly mentioned that the acquittal of the said respondent under the said sections is upheld. we further hold that the..........12-3-1065 acquitted the respondent bhagatram under section 161, 120b, 347, 389 and 218, indian penal code and section 5(1)(a) of the prevention of corruption act, 1947 the other respondent ramswaroop, who was jointly tried with bhagatram was also acquitted for offences under section 165a and 120b, indian penal code. the state find an appeal against both the accused from the order of their acquittal. when we heard this appeal, the learned deputy government advocate conceded that the offence under section 218, indian penal code was not made out against bhagatram. both of us were agreed that the offences under section 347, 389, 120b and 218, indian penal code were also not proved against bhagatram. there was however, difference of opinion between us on the question whether bhagatram was.....
Judgment:

C.M. Lodha, J.

1. The Special Judge, Ganganagar by his Judgment dated 12-3-1065 acquitted the respondent Bhagatram under Section 161, 120B, 347, 389 and 218, Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act, 1947 The other respondent Ramswaroop, who was jointly tried with Bhagatram was also acquitted for offences under Section 165A and 120B, Indian Penal Code. The State find an appeal against both the accused from the order of their acquittal. When we heard this appeal, the learned Deputy Government Advocate conceded that the offence under Section 218, Indian Penal Code was not made out against Bhagatram. Both of us were agreed that the offences under Section 347, 389, 120B and 218, Indian Penal Code were also not proved against Bhagatram. There was however, difference of opinion between us on the question whether Bhagatram was guilty under Section 161, Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act. I was of the opinion that Bhagatram is guilty under these Sections and accordingly convicted and sentenced him under both these sections. Tyagi J. wae however of opinion that the order of the trial Judge acquitting Bhagatram of all the charges must be upheld. As regards Ramswaroop both of us were agreed that the order of acquittal passed in his favour by the trial court must be maintained Since we were equally divided in opinion en the question whether Bhagatram should be convicted and sentenced under Section 161, Indian penal Code and Section (1)(a) of Prevention of Corruption Act we directed that the matter may be laid before the Hon'ble the Chief Justice for referring it to a third Judge. Thus the case was than laid before the Hon'ble the Chief Justice who directed that the case be listed before Jagat Narain J.

2. Jagat Narayan J. has given his opinion that Bhagatram is guilty under Sections 120B, 218, and 317, Indian Penal Code. In agreement with me, he has convicted Bhagatram under Section 161, Indian Penal Code, and sentenced him to one year's rigorous imprisonment and a fine of Rs. 500/- in default of payment of fine to undergo further rigorous imprisonment for three months. He has not passed any sentence under Section 120B Indian Penal Code, on the ground that the offence under Section 161, Indian Penal Code, was actually committed in pursuance of the conspiracy. He has further held that Bhagatram should be sentenced to rigorous imprisonment for one year under Section 218, and 347, Indian Penal Code each, though the sentences under these Section have been made to run concurrently with the sentence imposed under Section 161, Indian Penal Code With this opinion the case has been returned to us for pronouncing the Judgment in accordance with the opinion given by the third Judge under Section 429, Criminal Procedure Code.

3. Mr. Bhargava appearing on behalf of Bhagatram has raised two objections. He has submitted that we had already upheld the order of acquittal of Bhagatram under Sections 120B, 218 and 347, Indian Penal Code and dismissed the appeal of the State with respect to these offences and, consequently, it is urged that the third Judge had no jurisdiction to take a different view of the matter. It is argued that we should not pronounce the judgment in accordance with his opinion lest it may amount to setting aside oar judgment dated 24-9-1968. The second objection raised by Mr. Bhargava is that Jagat Narayan J. could not have convicted Bhagatram of the offence under Section 161, Indian Penal Code, on the basis of his finding that the offence under Section 161, Indian Penal Code was committed by Bhagatram in pursuance of the conspiracy entered with Ramswaroop, in view of the fact, that the other person to the conspiracy viz. Ramswaroop had been acquitted by the special judge of the charge of conspiracy and his acquittal had not been disturbed by us nor by Jagat Narayan J. In other words the contention of Mr. Bhargava is that the order of conviction of Bhagatram under Section 161 Indian penal Code ordered by Jagat Narayan J. is patently erroneous, and our judgment should not follow his opinion. He has urged that the case may be referred to other Judge after ignoring the opinion of Jagat Narain J. or the whole case may be laid before a larger Bench for final Judgment.

4. On the other hand, the learned Deputy Government Advocate, appearing on the behalf of the State has contended that under Section 429, Criminal Procedure Code, our Judgment must follow the opinion of Jagat Narayan J. in toto.

5. So far as the second contention raised by Mr. Bhargava is concerned we may state at once, that we cannot sit in Judgment over the findings arrived at by Jagat Narayan J., and must take them as they are.

6. As regards the first objection it is contended by Mr. Bhargava that the case had not been referred by us to another Judge under Section 429, Criminal Procedure Code, and that so far as offences under Sections 120B, 218 and 347, Indian Penal Code are concerned the appeal of the State has finally been dismissed by both of us. Thus it is argued that an operative decision of the court having been given by us in this respect, it can not be changed and the third Judge had no jurisdiction to convict the respondent Bhagatram for these offences. The learned Deputy Government Advocate has in this connection placed strong reliance on Subeader v. The State : AIR1956All529 in which the whole case law bearing on the subject has been discussed thread-bare. It has been held in this case that it is open to the third Judge to take a view different from that taken by the referring Judges so far as a particular accused is concerned. The contention of Mr. Bhargava that the reference was not made under Section 429, Criminal Procedure Code, is also devoid of force. This is the only specific provision for making reference to a third Judge in a criminal case. In Rule 61-A of Chapter v. of the rules of this Court we have provision for a reference to a larger Bench and this rule runs as follows:

61-A - If the Judges constituting a bench are equally divided in opinion as to the decision to be given on any point, and the case cannot be disposed of in accordance with Section 34 of }he Rajasthan High Court Ordinance, 1949, the Judges shall state the point upon which they differ and the case shall then, be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who have first heard it.

7. This rule specifically provides that it will be applicable only if the case cannot but be disposed of in accordance with Section 36 of the Rajasthan High court Ordinance, 1949

8. Section 36 of the Rajasthan High Court Ordinance, 1949, reads as below:

36. Single Judges and Division Courts:

Any function which is hereby directed to be performed by the High Court in the exercise of its original or appellate jurisdiction maybe performed by any Judge, or by any Division Court thereof, appointed or constituted by the Chief Justice for the purpose, and if such Division Court is composed of two or more judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges are equally divided, they shall follow the procedure prescribed in that behalf in the Codes of Civil or Criminal Procedure according as the case is Civil or Criminal and the case shall then be heard and disposed of in accordance with the provisions of the appropriate Code.

9. It is clear from this Section that if the Judges of a Division Court are equally divided, they shall follow the procedure prescribed in that behalf in the Codes of Civil or Criminal Procedure according as the case is civil or criminal and that case shall then be heard and disposed of in accordance with the provisions of the appropriate code. Thus there is no escape from the conclusion that the reference was made by us under no other provision except Section 429, Criminal Procedure Code, even though we have not made mention of this Section in our referring Order. This Section provides that the final Judgment of the case will be pronounced only after the third Judge has delivered the opinion. It is further provided in this Section that the final judgment or order shall follow the opinion of the third Judge. In this view of the matter even though we have mentioned in the referring order that 'the appeal of the State so far as it relates to the acquittal of respondent Bhagatram undersection 347, 218, 389 and 120B, Indian Penal Code, is also dismissed' that order cannot be considered as the final judgment or order in the case-Learned Counsel for the accused respondent referred to Section 369, Criminal Procedure Code in support of his contention and has argued that the opinion of the third Judge seeks to alter the order passed by us on 24-9-1968 which is not permissible according to the provisions of this section. Learned Counsel has further relied upon Raju v. Emperor AIR 1928 Lahore 462, and Kishansingh v. Emperor AIR 1928 P.C. 254. We do not consider it necessary to discuss the principle laid down in these authorities, in as much as it is a universal principle of law enshrined in Section 369, Criminal Procedure Cede, that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. It may be noted that this Court did not become functus officio on passing the Order dated 24-9-1968 by which the case was referred to a third Judge for opinion. According to provisions of Sections of Section 429, Criminal Procedure Code, the stage for final disposal of the case is reached only when the opinion of the third Judge is delivered. We, therefore, hold that Section 369 Giminal Procedure Code has no application to the facts and circumstances of the present case.

10. As to the question whether the third Judge was competent to take a view different from that taken by us so far as the respondent Bhagatram is concerned, we are of opinion that looking at the language of Section 429 Criminal Procedure Code, Mr. Justice Jagat Narayan had jurisdiction to express the opinion that the respondent Bhagat Ram should be convicted of offences uuder Sections 120B, 218, and 347, Indian Penal Code, although in our referring order we had expressly mentioned that the acquittal of the said respondent under the said Sections is upheld. We further hold that the opinion of the third Judge is binding on the Division Bench. In this connection we respectfully agree with the view taken is Subedar v. The State : AIR1956All529 .

11. In view of the opinion of the third Judge we partly allow this appeal, set-aside the order of acquittal of Bhagatram, under Section 161, Indian Penal Code and sentence him to one year's rigorous imprisonment and a fine Rs. 500/- five hundred; in default of payment of fine he shall undergo further rigorous imprisonment for three months. Bhagatram is also convicted under Sections 120B, 218, and 347, Indian Penal Code and sentenced to one year's rigorous imprisonment for offences under Sections 218 and 347, Indian Penal code each. The sentences awarded under these Sections shall run concurrently with the sentence passed under Section 161, Indian Penal Code. No separate sentence is awarded for conviction under Section 120B, Indian Penal Code. The appeal of the State against Ramswaroop is, however, dismissed.

12. The District Magistrate, Ganganagar is directed to get the accused Bhagat Ram arrested and to send him to jail to serve the sentence awarded to him.

13. The learned Counsel for respondent Bhagat Ram has prayed that the case may be certified to be a fit one for an appeal to the Supreme Court. The case in our opinion, does involve important questions of law, and is a fit one for appeal to the Supreme Court. We accordingly allow the prayer and certify that the case is a fit one for appeal to the Supreme Court.


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