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1967 DIGILAW 324 (ALL)

Atraj Singh v. State

1967-09-08

H.C.P.TRIPATHI, J.S.TRIVEDI, T.RAMABHADRAN

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ORDER T. Ramabhadran, J. - This purports to be an appeal by one Atraj Singh, who has been found guilty of three offences u/s 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947), and sentenced to undergo one month's rigorous imprisonment for each offence; the sentences running concurrently. 2. When this appeal came up for hearing on 29-3-1967, a question arose whether this appeal was maintainable in view of the provisions of Section 413, Code of Criminal Procedure, which run as under: Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only, or in which a Court of Session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or District Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only. 3. The Learned Counsels for the parties took time to study the point and trace out any previous decision on this point. Today the Learned Counsels have stated that despite best efforts, they have not been able to find any previous decision on the above point. 4. Mr. P.C. Chaturvedi, Learned Counsel for the Appellant, pointed out that u/s 9 of the Criminal Law (Amendment) Act, 1952, the High Court may exercise, so far as they may be applicable, all the powers conferred by Ch. XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898) on a High Court as if the Court of the Special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court. It was submitted that from the wording of Section 9 supra, it could not be inferred that Section 413 Code of Criminal Procedure would apply to cases under the Prevention of Corruption Act, 1947. 5. I have heard the learned State counsel also. 6. The point involved is not free from difficulty and it is likely to arise in other cases also. In the absence of any previous decision by this Court or by any other High Court, it is desirable to get an authoritative pronouncement on this point. 7. 5. I have heard the learned State counsel also. 6. The point involved is not free from difficulty and it is likely to arise in other cases also. In the absence of any previous decision by this Court or by any other High Court, it is desirable to get an authoritative pronouncement on this point. 7. Accordingly, let this appeal be laid before the Hon'ble the Chief Justice for referring the following point to a Bench of two Judges: Whether the provisions of Section 413, Code of Criminal Procedure would apply to an appeal preferred u/s 9 of the Criminal Law (Amendment) Act, 1952 against a conviction u/s 5(2) of the Prevention of Corruption Act, 1947 DIVISION BENCH 8. Tripathi, J. (21-8-1967)--A learned single Judge has referred the following question for the consideration of a Bench of two Judges: Whether the provisions of Section 413, Code of Criminal Procedure would apply to an appeal preferred u/s 9 of the Criminal Law (Amendment) Act, 1952 against a conviction u/s 5(2) of the Prevention of Corruption Act, 1947? 9. We have heard Sri P.C. Chaturvedi, Learned Counsel for the Appellant. Section 9 of the Criminal Law (Amendment) Act, 1952 (Act No. 46 of 1952) which is relevant to the question in controversy reads: 9. Appeal and revision--The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898) on a High Court as if the Court of the special judge were a court of session trying cases without a jury within the local limits of the jurisdiction of the High Court. 10. In terms of this section, the appellate jurisdiction of the High Court in-respect of a judgment or order of the Court of the special judge is the same which it enjoys u/Ch. XXXI of the Code of Criminal Procedure against an order or judgment of a court of session. This is clear from the fact that for the exercise of the appellate powers conferred on it by Ch. XXXI the High Court is required to treat the order of the Court of the special judge as that of a court of session trying cases without a jury. This is clear from the fact that for the exercise of the appellate powers conferred on it by Ch. XXXI the High Court is required to treat the order of the Court of the special judge as that of a court of session trying cases without a jury. We are, therefore, unable to agree with the contention of the Learned Counsel that in view of the aforesaid Section 9 the High Court enjoys an unlimited power of appeal in respect of an order of the special Judge. 11. The appellate powers of the High Court in respect of such an order are the same which have been conferred on it by Ch. XXXI of the Code of Criminal Procedure. Section 413 which falls within Ch. XXXI of the Code places a limitation on the exercise of the appellate powers by the High Court in respect of an order of a court of session. That limitation, in our opinion, is equally applicable on the exercise of its appellate power in respect of an order of the court of the special judge, because, it will be incongruous to hold that although the High Court derives its appellate powers in respect of an order of the special judge from Ch. XXXI of the Code read with Section 9, Section 413 which is a part of it is not applicable. 12. Our answer to the question is, therefore, in the affirmative. Let the papers be returned to the learned single Judge. Ramabhadran, J. 13. This appeal, which is directed against the conviction of Atraj Singh, of four offences, punishable u/s 5(2) of the Prevention of Corruption Act, had come up before this Court, on an earlier occasion, when, for reasons stated in my order dated 3-4-1967, the following point was referred to Section bench of two Judges: Whether the provisions of Section 413 Code of Criminal Procedure would apply to an appeal preferred u/s 9 of the Criminal Law (Amendment) Act, 1952 against a conviction u/s 5(2) of the Prevention of Corruption Act, 1947? 14. A bench of two learned Judges of this Court, has now answered the question in the affirmative. It, accordingly, follows that the provisions of Section 413 Code of Criminal Procedure would apply to the present case and, therefore, no appeal lies, since the sentence of imprisonment, inflicted upon Atraj Singh for each offence, does not exceed one month. 15. 14. A bench of two learned Judges of this Court, has now answered the question in the affirmative. It, accordingly, follows that the provisions of Section 413 Code of Criminal Procedure would apply to the present case and, therefore, no appeal lies, since the sentence of imprisonment, inflicted upon Atraj Singh for each offence, does not exceed one month. 15. Mr. P.C. Chaturvedi, Learned Counsel for Atraj Singh, then prayed that the memo of appeal be treated as a revision application, on the point of sentence. He pointed out that Atraj Singh has already undergone about 15 days' R.I. Secondly, the amounts involved are petty. Further, this appeal has remained pending for nearly 3 years. The Applicant has been under suspense for a very Ion time. Moreover, as a result of conviction he has been dismissed from Government service, and lost his right 1 pension, etc. 16. I have heard the learned State Counsel, in reply. In view of the circumstances, mentioned above, it does not appear necessary, now to send the Applicant back to jail. 9. The result is that the memo of appeal, which was treated as a revision application, is partly allowed. The conviction of the Applicant Atraj Singh, c four offences u/s 5(2) of the Prevention of Corruption Act, is maintenance but the sentence of imprisonment, inflicted upon him, thereunder, is reduced in each case, to the period already undergone. The Applicant is on bail. He need not surrender. His bail bonds are discharged.