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Sham Lal Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1971CriLJ1489
AppellantSham Lal
RespondentState and ors.
Cases ReferredIn Kambam Bali Reddy v. King Emperor A.I.R.
Excerpt:
- .....of bihar v. ram naresh pandey : 1957crilj567 , observed:-the word 'trial' is not defined in the code, 'trial' according to stroud's judicial dictionary means 'the conclusion, by a competent tribunal, of questions in issue in legal proceedings whether civil or criminal' (stroud's judicial dictionary, 3rd edition, volume 4, page 3092), and according to wharton's law lexicon means 'the hearing of a cause, civil or criminal before a judge who has jurisdiction over it, according to the laws of the land'. (wharton's law lexicon, 14th edition, page 1011). the words 'tried' and 'trial' appear to have no fixed or universal meaning. no doubt, in quite a number of sections in the code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to.....
Judgment:
ORDER

Jaswant Singh, J.

1. This habeas corpus application Under Section 491, Criminal P.C. arises in the following circumstances:

The petitioner who was 'a member of the force' as denned in Section 2 (d) of the Central Reserve Police Force Act, 1949, hereinafter referred to as the Act, was posted on duty at the training camp Ban Talba, Jammu. On August 1, 1969, he is alleged to have been grossly insubordinate and insolent to his superiors. Subedar Raghnath Singh, Subordinate officer-in-Charge, Special Junior Cadre Course at the said training camp, and Shri Sukhjinder Singh, Deputy Superintendent (Company Commandant), Officer-in-charge training camp, and to have refused to perform his duty. On August 4, 1969, a complaint under Clauses (e) and (n) of Section 10 of the Act in respect of the aforesaid allegations was filed against the petitioner before Shri Indra Singh, Assistant Commandant of the force, who was invested with the powers of a magistrate Second class Under Section 16 (2) of the Act. The petitioner was tried and was convicted for the aforesaid offences and sentenced to three months rigorous imprisonment by the Assistant Commandant, Magistrate 2nd Class, vide his order dated August 8, 1969.

2. On September 5, 1969, the petitioner filed an application before this Court Under Section 491, Criminal P.C. challenging his conviction and sentence on the aforesaid counts. The application initially came up for hearing before Hon'ble Bhat.J. It appears to have been contended before the learned Judge by the learned Addl. Advocate General appearing on behalf of the State that as the petitioner was undergoing a sentence of imprisonment imposed by a competent court and an appeal against his conviction and sentence law to the Sessions Judge, Jammu, the present application was not maintainable. After hearing the learned Counsel for the parties, the learned Judge vide his order dated December 18, 1969, referred the following two questions for decision to a Division Bench.

(1) Whether the petitioner had a remedy to file an appeal before the Sessions Judge against his conviction.

(2) If he had no such remedy, whether the trial held by the Assistant Commandant, Central Reserve Police. Magistrate 2nd Class resulting in the conviction of the petitioner is a valid trial.

On the case subsequently coming up before a Division Bench comprising Hon'ble Bhat, J., and myself questions relating to the constitutional validity of the Act and its extension to the State of Jammu and Kashmir also arose for decision. Considering that these Questions were of considerable importance and required an authoritative decision by a still larger bench, the division bench directed the papers to be laid before the Hon'ble Chief Justice for constituting a Full Bench. The Hon'ble-Chief Justice accordingly ordered the case to be laid before this bench. This is how the matter has come before us.

3. At the hearing before the Full Bench, the points relating to the constitutional validity of the Act and its-extension to the State have not been pressed. In my opinion, the learned; counsel for the petitioner has rightly refrained from canvassing these points.. It is now well settled that in examining the constitutionality of an enactment the presumption is in favour of validity and unless the invalidity is beyond doubt the court will construe it so as to have effect and will not strike it down as ultra-vires. Thai: apart, there are other weightier reasons for holding that the Act is constitutionally valid. It appears that this piece of legislation which was enacted by the Dominion Legislature in 1949' came into force on the 28th day of December of that year i. e., a little over two years after the State acceded to the Dominion of India by means of an instrument of accession executed by-the erstwhile ruler of the State on October 26, 1947, and accepted by the then Governor General of India October 27, 1947. A perusal of paragraph 3 of the Instrument of Accession would reveal that the ruler accepted the matters specified in the Schedule thereto as the matters with respect to which the Dominion Legislature might make laws for the State.

4. Now a reference to the statement of objects and reasons of the Act shows that the Act was intended to replace the old Crown Representative's Police Force Law-, 1939, and thus provide for the organization, control and regulation of the Central Reserve Police Force by the Central Government. A careful study of the statement and the Scheme of the Act also shows that the force falls within the category of 'any other armed force raised or maintained by the Dominion' mentioned in Paragraph 1 of List 1 of the 7th Schedule to the Government of India Act, 1935, as adapted which corresponds to item No: 1 of head A of the Schedule to the Instrument of Accession. A further reference to Items 2, 3, and 5 of head D of the Schedule would show that the Dominion Legislature was also authorised to make laws regarding offences against laws with respect to any of the matters set out in the Schedule as also in regard to the inquiries for the purposes of jurisdiction and powers of all courts with respect to any of the said matters. It was in exercise of these legislative powers that the Dominion Legislature seems to have made the Act in 1949. Even under the present constitutional arrangement the Central Legislature continues to enjoy the power to legislate regarding the forces. Reference in this connection may be made to Articles 370 and 246 and Entries 2, 93, 94 and 95 of List 1 of the 7th Schedule to the Constitution of India as applied to the State. I have, therefore, no hesitation in holding that the Act was enacted by the competent Legislature and was validly extended to the State.

5. The next question that arises for determination is whether the petitioner had a remedy by, way of appeal to the Sessions Judge, Jammu, against his conviction or not. To find out an answer to this question we shall have to refer to Section 5 (2) of the Criminal Procedure Code, 1989, (1933 A. D.) in force in the State which enjoins that all offences, under any law other than the Ranbir Penal Code shall be investigated, inquired into, tried or otherwise dealt with according to the provisions of the former Code but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. The Act in question is a special Act and Rule 36 of the rules framed Under Section 18 of the Act provides that all trials in relation to any of the offences specified in Section 9 or Section 10 of the Act shall be held in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 i.e., the Criminal Procedure Code in force in the whole of India except the State Jammu and Kashmir.

6. It would be convenient at this stage to ascertain the meaning of the word 'trial' occurring in the aforesaid rule. The words 'try' and 'trial' as held in Jiban v. Emperor 34 Cri LJ 684 : (A.I.R. 1933 Cal 581), have no fixed or universal meaning but they are words which must be construed with regard to the particular context in which they are used and with regard to the scheme and the purpose of the measure concerned.

7. In dictionary of English Law by W. H. Byrne (1923 Edition) the word 'trial' has been denned as a 'a step in an action, prosecution or other judicial proceeding by which the questions of fact in issue are decided''.

8. In Black's Law dictionary (1968 Edition) the expression has been defined as:

A judicial examination, in accordance with law of the land of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it. It concludes all proceedings from time when issue is joined, or, more usually when parties are called to try their case in court, to time of its final determination.

Their Lordships of the Supreme Court while considering the import of the word in State of Bihar v. Ram Naresh Pandey : 1957CriLJ567 , observed:-

The word 'Trial' is not defined in the Code, 'Trial' according to Stroud's Judicial dictionary means 'the conclusion, by a competent tribunal, of questions in issue in legal proceedings whether civil or criminal' (Stroud's Judicial Dictionary, 3rd Edition, Volume 4, page 3092), and according to Wharton's Law Lexicon means 'the hearing of a cause, civil or criminal before a judge who has jurisdiction over it, according to the laws of the land'. (Wharton's Law Lexicon, 14th Edition, page 1011). The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of Sections in the code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those Sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.

In Abbas Beary v. The State of Mysore A.I.R. 1965 Mys 35, Kalagate, J. said:

Thus it is obvious from the observations of their Lordships (in A.I.R. SC 389 (Supra), that the word 'trial' has got to be understood with reference to the context in which it occurs.

In Madhub Chunder Mozumdar v. Novo-deep Chunder Pundit, (1888) ILR 16 Cal 121, it was held:

That the trial of an appeal is included in the expression 'shall try any person.

In Kambam Bali Reddy v. King Emperor A.I.R. 1914 Mad 258, it was held that an appeal to a High Court is not a second trial but a continuation of the trial in the Sessions Court.

9. Thus in the context of the present rule, it can be said that the word 'trial' includes an appeal as well. The necessary implication is that the right and forum of appeal under the Act would be regulated by the provisions of the Criminal Procedure Code, 1898. This would evidently bring into operation Section 408 of the Code which inter alia provides that a person convicted on a trial held by the District Magistrate or any other magistrate may appeal to the court of Session. In this view of the matter, the petitioner can be said to have had the right of appeal to the Sessions Judge, Jammu.

10. Now assuming that the word 'trial' is not susceptible of the interpretation indicated above and is restricted to proceedings before the original court, even then according to Section 5 (2) of the Jammu and Kashmir Code of Criminal Procedure, which is a general law so far as our State is concerned all offences under the special laws have to be tried, inquired into, or otherwise dealt with in accordance with the provisions of that code i.e., the provisions of the Code of Criminal Procedure of the State. The expression 'otherwise dealt with' occurring in this sub-section is according to the dictum of the Supreme Court in : [1962]2SCR694 all comprehensive and would evidently include within its compass an appeal as well. It is also well established that where an enactment provides a special procedure only for some matters its provisions must apply to those matters and the provisions of the Criminal Procedure Code will apply in respect of matters on which the special enactment is silent (See (1907) ILR 31 Bom 438 : (6 Cri LJ 60) and : 1965CriLJ100 ).

11. Thus if it be taken that the Act does not make a specific provision regarding an appeal against a conviction even then the right and forum of the appeal shall according to Section 5 (2) of the Criminal Procedure Code of the State have to be determined in accordance with the provisions of that Code because the expression 'otherwise dealt with' occurring in the sub-sec- tion is all comprehensive. In that view also the appeal would lie to the Sessions Judge as provided by Section 408 of the Code. Thus from whatever angle we may examine the matter, I have no doubt in my mind that the appeal against the conviction of the petitioner: lay to the Sessions Judge, Jammu. I would, therefore, answer question No. 1 framed by the learned Single Judge vide his order dated December 18, 1969, in the affirmative. In view of this answer, the second question framed by the learned Single Judge, does not arise for consideration.

12. The next question that arises for consideration is whether the present application Under Section 491, Criminal P.C. is tenable. Now it is well settled that normally no writ of Habeas Corpus lies in regard to a person who is undergoing imprisonment under a sentence of court in a criminal trial on the ground of erroneousness of conviction. Reference in this connection may be made to the authorities in : [1951]2SCR344 (para 25) and A.I.R. 1963 Tripura 31 at p. 33.

13. I am, therefore, of the view that the present petition is not maintainable and that the proper course for the petitioner was to file an appeal before the Sessions Judge, Jammu. The petitioner may, if so advised, file an appeal against his conviction before the Sessions Judge, who would dispose of the same in accordance with law after considering the desirability of giving the benefit of Section 5 of the Limitation Act.

14. Before concluding I may also dispose of another point urged by Mr. Bhalgotra, learned Counsel for the petitioner. Mr. Bhalgotra has contended that the trial held in the present case is vitiated because no opportunity to engage a counsel as contemplated by Article 22(1) of the Constitution, was afforded to the petitioner. A perusal of the minutes of the proceedings of August 5, 1969, shows that on the petitioner's expressing a wish that he would have P. Ws, 1 and 2 examined by his pleader the case was adjourned to the following day. On the case, however, coming up on the next day, the petitioner expressed his inability to produce his pleader for cross examination of the P. Ws. and stated that the said P. Ws. would be cross examined by his counsel - Head constable Lallan Singh. At this the Head Constable Lallan Singh, was summoned and allowed to assist the petitioner but he expressed his inability to cross examine the witnesses. Thereupon the petitioner expressed a wish to cross examine the witnesses himself but all of a sudden he changed his mind and declined to cross examine them. 1 am, therefore, unable to hold that the petitioner was denied the right to consult and be defended by a counsel of his choice.

15. In the result, the petition fails and is hereby dismissed. The petitioner shall immediately surrender to his bail bond.

S.M. Fazl Ali, J.

16. I agree.

J.N. Bhat, J.

17. I agree.


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