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Nanda @ Chhittar Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 512/1979
Judge
Reported in1981WLN437
AppellantNanda @ Chhittar
RespondentThe State of Rajasthan
DispositionAppeal dismissed
Cases ReferredA.P. v. L.V.A. Dikshitulu
Excerpt:
criminal procedure code - section 374--words 'conviction' & 'convicted'--meaning of--challenge with object to avoid consequences of conviction--held, 'conviction' means finding of guilt followed by sentence or some order--appeal does not lie to high court;the object of challenge to a conviction is to avoid the other consequence arising from conviction and also to riase the stigma resulting from the conviction. i am, therefore, of the opinion that under section 374 cr.p.c. 'conviction' and 'convicted' means the adjudication of guilt and some order.;the appeal does not lie to this court as 'convicted' means a finding of guilt followed by the sentence or some other order.;appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule..........the final judgment of the court. tindal c.j. in burgess v. boetefeur 13, ljmc 126 observed 'the word 'convicted or the 'conviction' is undoubtedly verbum acquivocum. it is some time used as meaning the verdict of jury and at other times, for the sentence of the court.' in, section (an infant) v. manchester city recorder and ors. (1969) 3 all. e.r. at page 1230, after considering the earlier authorities where the lords had occasion to deal with the meaning of word 'conviction', lord reid observed 'much of the difficulty has arisen from the fact that 'conviction' is commonly used with two different meanings. it often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt.' lord macdermott has observed 'i do not propose to enter on.....
Judgment:

M.B. Sharma, J.

1. On trial by the learned Additional Sessions Judge, Bhilwara the accused-appellant Nanda @ Chhittar has been convicted under Section 307 of the I.P.C. The judgment convicting the accused, was pronounced on October 24, 1979 but on the application of the accused that he wants to lead evidance on the question of sentence, the case was adjourned to October 29, 1979. The accused did not lead any evidence and before a sentence could be passed preferred on appeal in this Court against his conviction under Section 307 of the I.P.C.

2. The question for consideration in this appeal is as to whether under Section 374 Cr. PC (hereinafter referred to as the 'Code') an appeal lies to this Court only against finding of guilt or an appeal will only lie when it is followed by some consequential order i.e. sentence or an order under the provisions of the Probation of Offenders Act, 1980 (for short 'the Act) or under Section 360 Cr. P.C. In other words, whether the term 'convicted' or 'conviction' in Section 374 of the Code means only a finding of guilt or it means finding of guilt followed by sentence or an order as aforesaid.

3. The term 'conviction' and 'convicted' has not been defined any where in the Code. This term has been used in different sections of the Code. When a word or phrase is defined as having a particular meaning in the enactment, it is that meaning and that meaning alone which, must be given to it, in interpreting a section of the Act, unless there is any thing repugnant in the context. The difficulty in interpreting a word arises if it is not defined and more so when it conveys more than one meaning. Chapter XVIII of the Code relates to trial before a court of Session. Under Section 229, the accused can be 'convicted' on his plea of guilt. If the accused refuses to plead, or doss not plead, or claims to be tried or is not 'convicted' on his plea of guilt under Section 229, then after trial if the accused is 'convicted' then unless the Judge proceeds in accordance with the provisions of Section 360, he has to hear the accused on the question of sentence and only then pass sentence on him according to law. Similarly under Chapter XIX of the Code which deals with the trial of warrant-cases by the Magistrate, under Section 241 the accused can be 'convicted' on his plea of guilt if he pleads guilty and if he claims to be tried then at the conclusion of the trial if the court finds the accused guilty but does not proceed in accordance with the provision of Section 325 or Section 360 of the Code, then after hearing the accused on question of sentence the Magistrate can pass sentence upon him according to the law. In case of previous conviction only after he has 'convicted' the accused then Magistrate can take evidence in respect of previous conviction. Under Chapter XX of the Code which deals with the trial of summons cases by the Magistrate the accused can be 'convicted' on his plea of guilt and when he is not so 'convicted' then after trial if he finds the accused guilty and if he does not proceed in accordance with the provision of Section 325 or 360, the Magistrate will pass a sentence on him according to law. In summary trials under Chapter XXI of the Code on conviction of an offence triable summarily, imprisonment not exceeding than prescribed in Section 262 can be passed. Every judgment under Section 354 of the Code has also to specify the offence (if any), of which and the sentence for the offence in which the accused is convicted and the punishment to which he is sentenced.

4. An appeal is a creation of statute, Chapter XXIX of the Code deals with the appeals and as provided in Section 372 no appeal shall lie from any judgment or order of a criminal court except as provided by the Code, or by any other law for the time being in force. As stated earlier, though Section 354 deals with the language and contents of judgment, there is no Section which defines an order. The contention of the learned Advocate for the appellant is that Section 374 of the Code confers a right of appeal on a person 'convicted' of an offence and 'conviction' means 'adjudication of guilt' and does not mean 'adjudication of guilt coupled with sentence'. It is, therefore, to be seen as to what the terms of 'conviction' or 'convicted' in Section 374 of the Code conveys.

5. It is for the court to interpret a particular word used in the statute and in doing so the court can take assistance to well-known and authoritative dictionaries. It is to be first seen as to whether the term 'conviction' carries only one meaning or more than one. Black's Law Dictionary, 4th Edition at page 403, column 2, defines 'convicted' and 'conviction' according to it in ordinary phrase, its meaning is the finding of a verdict that the accused is guilty. But, in legal parlance, it often denotes the final judgment of the court. Tindal C.J. in Burgess v. Boetefeur 13, LJMC 126 observed 'the word 'convicted or the 'conviction' is undoubtedly verbum acquivocum. It is some time used as meaning the verdict of jury and at other times, for the sentence of the court.' In, Section (an infant) v. Manchester City Recorder and Ors. (1969) 3 All. E.R. at page 1230, after considering the earlier authorities where the Lords had occasion to deal with the meaning of word 'conviction', LORD REID observed 'much of the difficulty has arisen from the fact that 'conviction' is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt.' LORD MACDERMOTT has observed 'I do not propose to enter on an exhaustive review of all cases cited in arguments a number of them have little bearing on the present issue. Some turn on whether the plea made should have been accepted as a plea of guilt or not guilty--The guilty but...'cases; some depend on the meaning to be given to the ambiguous word 'conviction'; some seem to touch on the exercise of the alleged discretion rather than on its existence.' Some relate to proceedings raising special issues because two courts rather then one were involved.' Lord Widgery, referred to the observations of Salmon. J. in (1962) 3 All. E.R. 924.' Once the magistrate has convicted or acquitted they are functus officio and cannot alter there decision.' Then he proceeded to observe 'I think the learned Judge must here have been using the word' convictel in its wider sense and as including not only the finding of guilt but the subsequent adjudication as to punishment. There is nothing in the context or in the case to suggest that be meant to a finding of guilt and nothing more' Lord Morris, observed 'the words 'convict' and 'conviction' in the Act are not always used with the same meaning. If, however, the word convict' in this Sub-section is used in the sense of a finding of guilt (as opposed to a finding of guilt coupled with the making of some order) the question is...The learned Lord further observed 'the word 'conviction' may some time be used to denote merely a rinding of guilt and some times to denote such a finding followed by an appropriate order.' Lord Upjohn observed 'the primary meaning of the word 'conviction' denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt, or the acceptance of the plea of guilt followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. The above observations of different Lords in the aforesaid case were made while dealing with the case as to whether the accused who pleads guilty can withdraw his plea and plead not guilty before the sentence is passed.

6. Therefore, there can be no doubt that the term 'conviction' has two meanings. In the general sense, it means 'a finding of guilt' but in legal parlance it means 'a finding of guilt followed by some order'. Maxwell on the interpretation of statutes, twelth Edition at page 279, while dealing with 'Identical expressions' and referring to the safe rule that the same word is used in the same sense in a statute has observed 'the presumption as to identical meaning is however, not of much weight. The same word may be used in different senses in the same statute and even in the same section'. The author has again said 'there are many modern examples of the same word being given distinct meanings.' He further says at page 280, 'the usual reason for attributing different meanings to the same word is simply that it occurs in different contexts.

7. 'Craies on Statute Law' at page 168-169, under the heading 'use of same words in different senses in the same Act' has said 'It is a sound rule of construction, said Cleasby B, in Courtanld v. Legh 'to, give the same meaning to the same words occurring in different parts of the Act of Parliament.' The presumption that the same words are used in the same meaning is however very slight and it is proper, 'if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.' Reference was made to the observations of Turne L.J. in Re National Savings Bank 1866) L.R.I. Reference was also made to R.V. Burt, v. Presburg (1960) Q.B. 625.

8. It is also a well settled rule of construction that if two consructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Act and eschew the other which will lead to absurdity or will make established provisions of existing law nugatory or which would lead to strange, inconsistent results or otherwise introduce an element of uncertainty and practical inconvenience in the working of the Statute. In the earlier part of this order, I have already referred to some provisions dealing with trial of cases, wherein word 'conviction' and 'convicted' have been used, but at the cost of repetition it may be stated that these words have not been defined any where in the Code and are ambiguous words. It may be observed that the purpose of the some of the provisions of Code which replaced Cr. P.C. 1898, was to avoid, delays in the disposal of the cases. If the word 'conviction' or 'convicted' is taken to mean only a finding of guilt and not final disposal of the case, then to my mind, it will frustrate the very object of the Code. If a meaning as suggested by the learned Advocate for the appellant is assigned to the word 'conviction' and 'convicted' then it will confer more than one right of appeal on the accused, one against 'the finding of guilt' and the other, the consequantial sentence or order as the case may be. The sentence for an offence is an important consideration, as depending on the sentence awarded for the offence the forum of appeal may differ. If under Section 374 of the Code 'conviction' only means a finding of guilt of a person accused of an offence then in case of person 'convicted' on trial held by a court other than the Sessions Judge or Additional Sessions Judge an appeal will lie to the Sessions Judge. But if that Court passes a sentence of imprisonment for more than 7 years then an appeal will lie to the High Court. It could not have been the intention of Legislature to confer two rights of appeal on the accused, one against the finding of guilt and the other against the consequential order. Notwithstanding any thing contained in Section 374 there is no right of appeal in cases in which a court passes a sentence prescribed in section 376 Cr. P.C. Can it be said that in such case against adjudication of guilt an appeal will lie, but if it is followed by sentence prescribed therein then no appeal will lie and only a revision will lie. There may be cases where though an accused is convicted but the passing of the sentence for the offence is postponed. If 'conviction' is assigned the meaning 'a finding of guilt' as suggested by the learned Advocate for the appellant, then though against conviction an appeal may lie in every case before a proper forum; but against the sentence if one is passed as aforesaid no appeal will lie. In case the accused pleads guilty, no appeal lies except to the extent or legality of the sentence. I am, therefore, of the opinion that 'conviction' or 'convicted' in Section 374 of the Code means 'a finding of guilt of a person accused of an offence and some consequential order'. In other words so far as the trial court is concerned it must finally dispose of the matter.

9. Let us view it from another angle. There may be cases where after adjudging a person guilty of an offence the matter of sentence may be postponed. Though it will be rare but the possibility cannot be excluded that there may be a time lag in between such an order of adjudication of guilt and an order imposing a sentence. It may be so because of the transfer of the presiding officer after adjudication of guilt and before passing of sentence or order. It may also be that the period for filing an appeal against 'conviction', if it only means adjudication of guilt, may expire by the time the sentence is passed. Can it be said that only against the sentence, which may be passed ultimately, the accused will have no right to challenge his 'conviction'. I am conscious that if the words are capable of two constructions, one of which is more favourable to the accused than the other, the court will be justified in accepting the one which is more favourable to the accused, unless the object behind it would be defeated. It is also true that the statutory deprivation of a general right of appeal, must always be const rued strictly. The various sections in Chapter XXIX, which deal with the appeals, give an indication and show the legislative intent to limit appeals and only against the final disposal of the case by the Court an appeal lies. The question of sentence is directly connected with the forum of appeal. If we see the scheme then it is clear that the question of sentence looms large and is a predominent factor. I have already referred earlier that in case a word is capable of two interpretations, it should be interpreted in such a manner that it achieves its object and gives effect to the legislative intent. A look at the Article 115 of the Limitation Act, 1963 will show that the period for filing appeal prescribed therein commences from the date of sentence or order. In case of sentence of death, it is thirty days from the date of the sentence. Thus it is the date of sentence or order from which the period for an appeal commences. If 'conviction' or 'convicted' is seen in the context in which it occurs in Section 374 Cr. P.C., and in the context of the word 'judgment' as used in Section 372 of the Code then whatever this word may convey in other Chapters of the Code to which a reference has been made in earlier part of this order, for purposes of Chapter XXIX of the Code it means final disposal of the case i.e. a finding of guilt and some consequential order.

10. Before concluding a reference may be made to the few authorities cited by the learned Advocate for the appellant. Nothing turns out on any of them. Advocate General v. P.H. Mowle AIR 1962 AP 8; Karey v. State AIR 1959 Allah 350) Mayandi Nadar v. Pala Kuduban AIR 1935 Mad 157 Bahadur Molla v. Ismail AIR 1925 Cal 324 Tulsi Das v. King Emperor AIR 1924 Allah 768 Madhav v. Emperor AIR 1926 Bom 382 H. De Souza, v. P.M.P. De Souza AIR 1966 Goa 46 A.P. v. L.V.A. Dikshitulu : [1979]1SCR26 . In the aforesaid cases, except of the Supreme Court the accused was convicted under Section 562 of the Code of Criminal Procedure 1898. In most of them more than one courts were involved. After findins the accused guilty, the court had become functus officio. Those cases have no application to the present case. Apart from that it does not appear from any of those cases as to whether it was considered if the word 'conviction' and 'convicted' has more than one meaning and if so what is its effect T S.C. case AIR 1979 SC 193 final order had been passed that is the accused was adjudged guilty and also sentenched, but duriug the pendency of the appeal the accused had undergone the sentence awarded and the High Court observing so dismissed the appeal. It was in that context that their Lordships observed that merely because the accused would not have to suffer further imprisonment, it does not mean that he cannot challenge his conviction The object of challenge to a conviction is to avoid the other consequence arising from conviction and also to raise the stigma resulting from the conviction I am, therefore, of the opinion that under Section 374 Cr. P.C. 'conviction' and 'convicted' means the adjudication of guilt and some order. The court must finally dispose of the case. Any other meaning to the above word would create difficulties and would open the door to wide spread abuse of process and delay the disposal of this case.

11. I am, therefore, of the opinion that the appeal does not lie to this Court as 'convicted' means a finding of guilt followed by the sentence or some other. The appeal is, therefore, dismissed.


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