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1947 DIGILAW 54 (ALL)

Motilal v. Emperor

1947-05-08

MALIK, RAGHUBAR DAYAL

body1947
JUDGMENT Malik and Raghubar Dayal, JJ. - This application is by Motilal and Sri Ram u/s 561A of the Code of Criminal Procedure and Section 205 of the Government of India Act. 2. Motilal and Sri Ram are proprietors of a firm, Messrs. Motilal and Sri Ram. They were tried for having contravened the provisions of Section 6 Clause (1) of the Hoarding and Profiteering Prevention Ordinance (XXXV of 1943). They were both convicted by Mr. S. P. Watel Magistrate 1st Class and were sentenced to eighteen months' rigorous imprisonment and a fine of Rs. 1,000 each. Moti Lal and Sri Ram filed a revision in this Court which was numbered as Criminal Revision No. 748 of 1946. This Court reduced the sentence of Sri Ram and while setting aside the sentence of imprisonment, the sentence of fine of Rs. 1,000 was maintained. The 37 sentence of imprisonment and of fine passed by the Magistrate on Motilal was maintained by this Court. 3. A certificate is prayed for by the present application u/s 205 of the Government of India Act on the ground that the Ordinance. was ultra vires of the Ordinance making power of the Governor General, he having no jurisdiction u/s 73 of the Ninth Schedule of the Government of India Act, 1936, to promulgate the said Ordinance. 4. This point was not taken before this Court or any of the Courts below. In view of the decision of a Bench of this Court in Criminal Miscellaneous case No. 437 and 433 of 1947 decided on the 6th May, 1947, the prayer for certificate u/s 205 must fail. The question of interpretation of the Government of India Act or of any Order in Council made thereunder not having been raised before this Court, it cannot be said that there was any reasonable possibility that the specified question arose and there the High Court, when it did not consider the question of the grant- ing or the withholding of a certificate failed in the performance of its duty u/s 205. The subsequent application would not, therefore, lie and this part of the prayer must be rejected. 5. The subsequent application would not, therefore, lie and this part of the prayer must be rejected. 5. As regards the second prayer u/s 553lA of the Code of Criminal Procedure, learned Counsel for the applicants has urged that the amendment to Section 14A of the Hoarding and Profiteering Prevention Ordinance made by Ordinance No. LIII of 1944, was overlooked at the trial and in accordance with that amendment the learned Magistrate had no jurisdiction to try the case in the ordinary way unless he was specially directed to do so by the District Magistrate Section 14 A which was inserted by Ordinance No. XII of 1944 provided that a Magistrate empowered to act under Chapter XXII of the Code of Criminal Procedure may try any offence punishable under this Ordinance in a summary way under the provisions of that Chapter unless the District Magistrate directs that the case should not be tried. 6. By Ordinance No. LIII of 44 which was published in the Gazette of Indian Extraordinary on the 13th December, 1944, the word "may" was changed into the word "shall", with the result that a Magistrate having summary powers has to try a case in bis summary jurisdiction, unless the District Magistrate directs otherwise. Mr. Watal had summary jurisdiction on the date3 when the trial commenced, that is in the month of April, 1945. He should have therefore, in view of the amendment, tried the case summarily as there was no direc tion by the District Magistrate that the trial should be in the ordinary way. All that the District Magistrate had said was "sanctioned". To Mr. Watal for disposal" The learned Government Advocate has urged that this implies that Mr. Watal had to try the case in the ordinary way- Weare not prepared to accept this contention. 7. Learned Counsel for the applicants has urged that if the trial had been a summary trial u/s 262 (2) of the Code of Criminal Procedure the Magistrate could not have passed a sentence of impisonment(sic) exceeding three months. If the point had been raised before the learned Sessions Judge, the learned Judge would have been bound to reduce the sentence to the maximum of three months. He could not have directed a retrial in the ordinary way as be could not have asked the District Magistrals to direct that the trial should be in the ordinary way. If the point had been raised before the learned Sessions Judge, the learned Judge would have been bound to reduce the sentence to the maximum of three months. He could not have directed a retrial in the ordinary way as be could not have asked the District Magistrals to direct that the trial should be in the ordinary way. We feel, satisfied that by reason of the fact that these Ordinances were passed one after the other and they were amended by successive Ordinances with which it was difficult for the public or for the Bar to keep pace, the provision of Ordinance No. LIII of 1944 was over-looked. 8. The next question for consideration is whether we can interfere at this stage u/s 561A of the Code of Criminal Procedure. The learned Government Advocate has drawn our attention to Section 369 of the Code and has urged that this Court having disposed of the revision in the manner indicated by us above, it has now no power of review nor can it in any way alter its judgment except to correct a clerical error. We are not prepared to accept his submission. Section 369 begins with the words 'Save as otherwise provided by this Code', and we consider that under Sectiou 561-A, where this Court is satisfied that it is necessary, to secure the ends(sic) of Justice, that it should interfere under its inherent powers, it ought to do so We do not want to encourage successive revisions. Where a revision has been decided we are not of the opinion that a second revision would lie or that a party has a right to have the matter reheard or reargued, but where, as in this case, a mandatory provision of law has been overlooked, we thick this Court has power to correct an obvious error. 9. In the result we reduce the sentence of imprisonment passed(sic) on Motilal from eighteen months' rigorous imprisonment, to a period of three months' rigorous imprisonment; the sentence of fine shall remain. The application of Sri Ram is rejected.