Ganesharam v. State of Rajasthan — 1968 DIGILAW 42 (RAJ)

TYAGI, J.—Ganesharam has filed this application under sec. 561-A Criminal Procedure Code and it arises out of the following circumstances: Ganesharam petitioner, who was prosecuted in the court of the Additional Munsif-Magistrate, Bikaner for an offence under sec. 325 Indian Penal Code, was acquitted by the learned Magistrate vide his judgment dated 28th March, 1966. An appeal was preferred by the State against the said judgment and this Court vide its judgment dated 12th January, 1968, set aside the acquittal and convicted the petitioner under sec 325 Indian Penal Code and awarded him rigorous imprisonment for one year. Then an application under sec. 561A Criminal Procedure Code was moved on behalf of the petitioner praying that the order of conviction passed by this Court be set aside and his counsel who could not attend the Court on the day when the appeal was decided be allowed to argue the appeal. By another application dated 12tb February, 1968, it was further prayed that in the exercise of its inherent jurisdiction the Court may extend the benefit of sec. 6(1) of the Probation of Offenders Act (hereinafter called the Act) to the petitioner who was below 21 years of age when the judgment of the trial court was pronounced. 2. Mrs. Chatterji who represents the petitioner did not press the first application for setting aside the conviction, but she strenuously argued that it was the duty of the learned Deputy Government Advocate, who appeared on behalf of the State when the appeal was heard and decided ex parte by this Court, to have brought this fact to the notice of the Court that the petitioner was below 21 years of age and that he was entitled to the benefit of the provisions of sec. 6 of the Act. If this fact had not escaped the notice of the Court at the time of the hearing of the appeal, then, according to Mrs. Chattterji, the Court had no alternative but to order for the release of the accused under the provisions of secs.3 and 4 of the Act. It was further argued that this Court by sending the petitioner to jail has passed an order which was not within the competence of the Court as the provisions of sec. 6(1) of the Act are mandatory in nature and the Court was bound to comply with the requirements of those provisions. 3. It was further argued that this Court by sending the petitioner to jail has passed an order which was not within the competence of the Court as the provisions of sec. 6(1) of the Act are mandatory in nature and the Court was bound to comply with the requirements of those provisions. 3. Learned Deputy Government Advocate has vehemently opposed this application. His argument is that the jurisdiction under sec 561-A Criminal Procedure Code is not available to the petitioner because he himself was guilty of not appearing before the Court to point out that he was entitled to the benefit of sec. 6(1) of the Act. It was also contended that on the date when he was ordered to be sent to jail he had crossed the age of 21 and therefore the provisions of sec. 6(1) of the Act were not attracted to his case. 4. The question about the scope of the jurisdiction of this Court under sec. 561-A Criminal Procedure Code came before the full Bench of the Allahabad High Court in Raj Narain vs. The State(l). The point to be discussed in that case was whether the High Court has a power to revoke, review, recall or alter its own earlier decision passed in the exercise of its revisional jurisdiction and rehear the same. The majority (with Mootham C. J. differing) held that an inherent power implies by its very nature a power cannot be expressed in terms but which must reside in a Court for achieving the higher and the main purpose of a Court, namely, the purpose of doing justice in a case before it and for seeing that the act of the Court does no injury to any of the suitors. The learned Judges were of the opinion that the circumstances requiring the use of such a power cannot be foreseen. The Legislature according to them, enacts provisions to meet such circumstances which can be foreseen, and once provision has been made in the statute about a certain circumstance the occasion to invoke inherent power in that circumstance practically vanishes. The learned Judges were of the opinion that the circumstances requiring the use of such a power cannot be foreseen. The Legislature according to them, enacts provisions to meet such circumstances which can be foreseen, and once provision has been made in the statute about a certain circumstance the occasion to invoke inherent power in that circumstance practically vanishes. An occasion to invoke the inherent power will not then arise for the simple reason that when the Code has provided for the contingency, that provided method must be considered to be the just method to meet that contingency and any other method thought of by the Court cannot then be said to be a method which would advance the interest of justice. It is in this sense that no occasion for the exercise of any inherent power arises when the statute expressly or by necessary implication provides for what is to be done in that situation. 5. Sec. 561-A Criminal Procedure Code envisages three circumstances in which the Court can exercise that power, namely, when it is necessary (1) for securing the ends of justice, (2) for preventing abuse of the process of Court, and (3) to give effect to any order under this Code. 6. It is now well-settled that this section does not confer any power on the High Court. It only saves such inherent power which the Court possessed before the Code of Criminal Procedure was enacted. If such a power is so included it can be exercised for the purposes mentioned in the section and it would be a matter for determination by the Court in each individual case whether the circumstances obtaining in that case make out that purpose and make it inherent on the Court to exercise such a power to achieve the objects mentioned in the section. 7. Chagla C. J. in the State of Bombay vs. Nilkanth Shripad Bhave (2) while dealing with the scope of section 561-A Criminal Procedure Code observed as follows: "As sec. 561 A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice. Sec. 561A must give the power to the High Court to entertain applications which are not contemplated by Criminal Procedure Code. 561 A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice. Sec. 561A must give the power to the High Court to entertain applications which are not contemplated by Criminal Procedure Code. Therefore, if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice." 8. In view of the above observations, it is to be seen whether the circumstances of this case are of such a nature which make it incumbent on this Court to exercise its inherent powers to dispose of the application filed before it. 9. The Supreme Court in Rattanlal vs. The State of Punjab (5) has observed that the provisions of sec. 6 of the Act are mandatory in nature and even if the accused did not bring the provisions of the Act to the notice of the Court till after the case of the accused was disposed of, it does not absolve the Court from discharging its duty under the Act and apply the provisions of the Act to the circumstances of the case if they are attracted to them. 10. In that case, appellant Rattanlal was convicted under secs. 45 and 354 of the Indian Penal Code and sentenced to six months rigorous imprisonment on each count and also sentence of the fine was imposed on him under sec. 451. The appellant was 16 years of age at the time of his conviction but when the order of conviction was recorded by the learned Magistrate, the Probation of Offenders Act was not extended to the District of Gurgaon where the appellant used to live. On appeal, learned Sessions Judge upheld the conviction as well as the sentence. A revision application was then filed before the High Court of Punjab but it was dismissed in limine. It may be mentioned that by that time the appellant did not urge before any of these Counts to apply the provisions of sec. 6 of the Act to his case, as he did not know that the Act had been extended to the Gurgaon Dist. It may be mentioned that by that time the appellant did not urge before any of these Counts to apply the provisions of sec. 6 of the Act to his case, as he did not know that the Act had been extended to the Gurgaon Dist. After the revision petition was disposed of by the High Court, it appears that the appellant filed criminal miscellaneous petition before the High Court to exercise its jurisdiction under sec. 11 of the Act and to pass orders under sec. 3, 4 or 6 thereof. That application was also dismissed by the High Court and it was against that order that an appeal was taken to the Supreme Court. The majority of the Judges of the Supreme Court held that in the circumstances of that case the appellant was entitled to the benefit of the provisions of sec. 6 of the Act. An argument was raised on behalf of the prosecution that at such a late stage of the proceedings the Supreme Court should not allow a party to raise a point for the first time before it about the application of the provisions of sec. 6 of the Act. While dealing with that question, the learned Judges observed as follows: "But in this case both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act. It is true that the accused did not bring the provisions of the Act to the notice of the court till after the revision was disposed of. But that does not absolve the court from discharging its duty under the Act. The observations made by the Additional Sessions Judge in sentencing the accused were made de hors the provisions of the Act.........." 11. The learned Judges, however, did not themselves give the benefit of the provisions of sec. 6 (1) of the Act to the appellant but sent back the case to the High Court with a direction that the High Court may make an order under sec. 6 of the Act or if it so desires to remand it to the Sessions Court for doing so. 12. 6 (1) of the Act to the appellant but sent back the case to the High Court with a direction that the High Court may make an order under sec. 6 of the Act or if it so desires to remand it to the Sessions Court for doing so. 12. Learned Deputy Government Advocate in support of his argument that at this late stage the petitioner should not be allowed to invoke the inherent jurisdiction of the Court particularly when he was himself guilty of laches of not attending the Court when the appeal of the State was heard by this Court cited an authority of the Mysore High Court in Dasappa vs. State of Mysore (4). In that case, the accused were convicted under sec. 380 Indian Penal Code and sentenced to rigorous imprisonment for four months. Appeal and revision petitions were preferred by the accused in the Sessions and the High Court and they were also dismissed. Thereafter review application was filed by the accused persons plying that one of them was 17 years of age and, therefore, he was entitled to the benefit of the provisions of the Probation of Offenders Act. It was argued by learned counsel for the convict that it was through oversight that that submission could not be made before the Courts when the sentence was passed and upheld in appeal or revision and, therefore, he urged that the Court should consider this new plea to secure the ends of justice under the inherent powers. The learned Judge, after relying on certain observations of the Supreme Court in Chopra vs. State of Bombay(5) observed that the case of the petitioner did not fall under any of the provisions of the Code of Criminal Procedure and the review petition was therefore misconceived, as in his opinion such a review would clearly be against the principle of finality of orders of dismissal passed by the High Court and that the petitioners were to blame themselves for not having apprised their advocate of all material facts. The learned Judge, however, remarked that the petitioner No. 2 who claimed to be below 21 years may approach the State Government under Chapter 29 of Criminal Procedure Code for remission of the sentence. 13. The learned Judge, however, remarked that the petitioner No. 2 who claimed to be below 21 years may approach the State Government under Chapter 29 of Criminal Procedure Code for remission of the sentence. 13. I regret that, with all due respect to the learned Judge, I cannot agree with the decision in that case because the observations of the Supreme Court on which he placed reliance in dismissing the petition about the finality of the orders passed by the Court were entirely in the context of different circumstances which had absolutely no bearing on the circumstance obtainable in that case. 14. There is no dispute that the provisions of sec. 6 of the Act are mandatory in nature as the Supreme Court in Ratanlal vs. The State of Punjab(3) have clearly mentioned that whether a plea is raised or not it is the duty of the Court to extend those provisions if the accused is found to be below 21 years of age. The arguments advanced by Mrs. Chatterji cannot be said to be without force when she states that it was the duty of the learned Deputy Government Advocate to have brought it to the notice of this Court when the appeal of the State was decided by the Court in the absence of the accused that the accused was below 21 years of age. She further submits that it was the duty of the Court also before sentencing the petitioner to imprisonment to find out if he were entitled to the benefit of the provisions of sec. 6 of the Act. Her contention is that the age of the accused was patent on the face of the record because the learned Magistrate, while recording his statement under sec. 342 Criminal Procedure Code had entered the age of the accused as 20 years and, therefore, in these circumstances, this Court has also failed to discharge its duty which was cast on it by the Legislature by enacting the provisions of sec. 6 of the Act under which the normal penal law is superseded and the accused, instead of being sentenced to imprisonment, was entitled to be released on bail under the mandate of the said law. These submissions of Mrs. Chatterji are not without force. 6 of the Act under which the normal penal law is superseded and the accused, instead of being sentenced to imprisonment, was entitled to be released on bail under the mandate of the said law. These submissions of Mrs. Chatterji are not without force. The petitioner was undoubtedly below 21 years of age and as such, even if he were found to be guilty of an offence under sec. 325 I.P.C., he could not be sentenced to imprisonment by this Court without violating the mandate of the legislature contained in sec. 6 of the Act. The observations of Chagla C. J. in the Bombay case are very much attracted to the circumstances of this case, as I find that the petitioner cannot seek redress in any other manner except to invoke the inherent jurisdiction of this Court. I feel that in order to secure the ends of justice I must allow the petitioner to invoke the inherent jurisdiction of this court. Even if the learned Deputy Government Advocate did not bring this fact to the notice of the Court that the petitioner was below 21 years of age, the Court was not absolved from discharging its duty to apply the mandatory provision of sec. 6 of the Act when the age of the petitioner was recorded as 20 years when his statement was taken down by the trial Court. The order of sentencing such an accused for whom the legislature has superseded the ordinary penal law is ex facie illegal and the Court should not deny to rectify such an error under the pretext of the nonavailability of any specific provision to do so in the Code of Criminal Procedure. 15. Learned Dy. Govt. Advocate further argued that the remedy by way of appeal to the Supreme Court was open to the petitioner under the Code of Criminal Procedure and, therefore, the inherent jurisdiction should not be allowed to be invoked by him. I regret, I cannot accept this contention of the learned Deputy Government Advocate as every one knows that filing of an appeal to the Supreme Court is not as easy as it was urged by the learned Deputy Government Advocate. For the reasons mentioned above it will not be in the interest of justice to reject the petition under sec. 561A and direct the petitioner to adopt a course which in the opinion of Mrs. For the reasons mentioned above it will not be in the interest of justice to reject the petition under sec. 561A and direct the petitioner to adopt a course which in the opinion of Mrs. Chatterji is beyond the means of the petitioner who is financially unsound. 16. The next question urged by learned Deputy Government Advocate is that the question of the application of the provisions of sec. 6 of the Act in this case arose only when the petitioner was convicted by this Court after setting aside the order of acquittal passed by the trial Court and at that time the petitioner was not below 21 years and, therefore, he cannot now claim any benefit under the said provision. 17. It is not disputed by learned Deputy Government Advocate that on the day when the order of acquittal was passed by the trial court, petitioner was below 21 years of age. The question that therefore arises is as to which is the crucial date for reckoning the age when the petitioner can claim the benefit of the provisions of the Act. In my opinion, this controversy is now well settled by the decision of the Supreme Court in Ramji Missar vs. State of Bihar (6). The question that was mooted out in that case before the learned Judges of the Supreme Court was whether the age of the offender to be reckoned is as at the date of the judgment of the trial Judge or when the accused for the first time was in a position to claim the benefit of sec. 6 of the Act. Their Lordships, while deciding this controversy, observed as follows— "We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender." 18. In view of this observation, the Court shall have to see whether on the date the judgment was passed by the trial court, the accused was or was not of 21 years of age. In view of this observation, the Court shall have to see whether on the date the judgment was passed by the trial court, the accused was or was not of 21 years of age. The principle that their Lordships of the Supreme Court invoked to decide this question was that the order which the appellate or revisional court ultimately passes is the correct order which the trial court should have passed and if the trial court had passed that order when the provisions of sec. 6 of the Act are attracted, then to see whether such a benefit could be claimed by him at that time or not. In this case, (the correct order of conviction was passed by this Court when the petitioner had crossed the age of 21, but, according to the theory and the logic relied upon by the Supreme Court this order of conviction ought to have seen passed by the trial court on which date the petitioner admittedly did not attain the age of 21 and as such the benefit of sec. 6 of the Act must be extended to him as he could have got this benefit if he were rightly convicted by the trial court.) In these circumstances, I do not find any force in the contention raised by the learned Deputy Government Advocate. 19. The result is that the petition of the petitioner Ganesha Ram is allowed, the sentence of imprisonment passed against him by this Court vide judgment dated 12th January, 1968, is set aside and it is hereby ordered that the petitioner shall be released from the jail provided he executes a bond in the sum of Rs. 2,000/- and furnishes a surety in the like amount to the satisfaction of the Additional Munsiff-Magistrate, Bikaner, for keeping peace and be of good behaviour for a period of two years.