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Allahabad High Court · body

1974 DIGILAW 33 (ALL)

Ram Gopal v. State

1974-01-24

YASHODA NANDAN

body1974
JUDGMENT Yashoda Nanda, J. These are two connected references in which by a common order, the learned Sessions Judge, Rampur, has recommended that the revisions filed by the applicants before him be allowed and their convictions and sentences be set aside. Jamuna Prasad and Ram Gopal, who were revisionists before the learned Sessions Judge, were in separate trials convicted under section 13 of the U. P. Roadside Control Act. 1945 (hereinafter referred to as U. P. Act) and each one of them sentenced to a fine of Rs, 50. By a Notification dated 21st February, 1953 issued under section 3 (i) of the U. P. Act, the State Government had undisputedly declared land lying within distance of 220 yards from the Central line of the MeerutBareilly Road as 'controlled area'. Jamuna Prasad denied the allegations and stated that the shop in dispute belonged to his father and he had no concern with it. Ram Gopal's defence was that the shop was old and had existed since prior to the merger of the Rampur state in 1949 and that he had made no new constructions. Subsequently in his statement under section 342, Cr. P. C. He added that the constructions originally made had fallen down in the rains and the debris was scattered on the spot. The learned Magistrate believed the prosecution case and rejected the defence versions. In the result, as already stated, the applicants were convicted and sentenced. Aggrieved by the orders passed by the learned Magisrata, Jamuna Prasad and Ram Copal filed Criminal Revisions No. 41 of 1971 and 42 of 1971 respectively before the learned Sessions Judge, Rampur, It was urged before the learned Sessions Judge that in the year 1957 the MeerutBareilly Road which subsequently came to be described as DelhiBareillyLucknow Road, became a 'national highway' on the coming into force of the National Highway s Act, 1956 (hereinafter referred to as Central Act). It was contended that though by Uttar Pradesh Roadside Land Control (Sanshodhan) Adhiniyam, U. P. Act No. 6 of 1955 (to be referred hereinafter as the amending Act) the definition of the expression 'Road' as occurring in section 2 (6) of the U. P. Act was amended so as to include National Highways, the proviso added to Section 3 by the same amending Act is to the effect that Provided that in case of a National Highway, the Highway itself shall not be deemed to be a controlled area and consequently since the disputed constructions were in existence on land appurtenant to a national highway, they could not be held to have been made within a controlled area. The controversy before the learned Sessions Judge consequently was as to whether land appurtenant to DelhiBareillyLucknow Road was also excluded by the proviso to section 3 (i) of the U. P. Act added to it by amending Act 1965 from the perview of that section. The learned Sessions Judge found on an examination of evidence produced before him that the construction of both the applications in respect of which they have been prosecuted lay on land appurtenant to a national highway. The learned Judge relying on the decision of A. K. Kirty, J, U. P. State v. Jagat Bahadur (1969 A. W. R.) took the view that the expression National highway in proviso to section 3 (i) of the U. P. Act must be given the same meaning as given to it in the Central Act. Since in the Central Act a National highway includes all lands appurtenant thereto whether demarcated or not, it was held by the learned Sessions Judge, that the land on which the constructions of the applicants stood being appurtenant to a National higway could not be considered to be controlled area for the purposes of section 3 (i) of the U. P. Act because of the proviso. In this view of the matter the learned Sessions Judge came to the conclusion that the applicants before him were not liable to be convicted under section 13 of the U. P. Act and he consequently made a recommendation to this court for setting aside their convictions and sentence. I have heard learned counsel for the applicants and the learned counsel for the state and in my opinion the recommendation made by the learned Sessions Judge cannot be accepted. I have heard learned counsel for the applicants and the learned counsel for the state and in my opinion the recommendation made by the learned Sessions Judge cannot be accepted. I shall assume for the purposes of this case that the constructions alleged to have been made by the applicants existed on land appurtenant to DelhiBareillyLucknow National highway. I shall also assume for the purpose of this case that A K. Kirty, J. rightly held that expression National highway as occurring in the proviso to 3(i) of the U. P. Act must be given the same meaning as has been given to it under section 4 of the Central Act. The question, however, still remains as to whether the applicants were rightly found guilty of the offences of which they were charged. Section 2 (6) of the U. P. Act as it originally stood ran as follows: 'Road' means a metalled road maintained by the State Government or by a local authority or a route demarcated by the State Government or a local authority with a view to constructing along it a metalled road." Under this definition, it is clear that a road maintained by Union of India could not be considered to be a 'Road for the purposes of the U. P. Act.' The MeerutBareilly Road which, as already stated, subsequently became a 'National highway' was, on 21st February, 1953 when a declaration under Section 3(i) of the U. P. Act in respect of it was made by means of notification, maintained by the State of U. P. Thus the notification when issued was a valid notification. The Central Act came into force on 1sth April, 1957. The DelhiBareillyLucknow Highway was mentioned at Serial Number 15 of the Schedule of the Central Act and consequently stood declared as a 'national highway' by reasons of section 2 (i) of the Central Act. Under section 5 of the Central Act it became the responsibility of the Central Government to develop and maintain in proper repair the DelhiBareillyLucknow Road. After 15th April, 1957 the highway in question consequently ceased to be a road within the meaning of that word as defined in section 2 (6) of the U.P. Act. Under section 5 of the Central Act it became the responsibility of the Central Government to develop and maintain in proper repair the DelhiBareillyLucknow Road. After 15th April, 1957 the highway in question consequently ceased to be a road within the meaning of that word as defined in section 2 (6) of the U.P. Act. It was held by V. Bhargava, J. in an unreported decision of this Court that the definition of 'Road' under the U. P. Act as it stood prior to its amendment by U. P. Act 6 1S65, did not cover 'national highways'. In 1965 consequently the State Legislature passed the Amending Act of 1965 which was published in the U. P. Gazette on 20th March, 1965. Section 1 (2) of the Amending Act provides that sections 2 and 3 thereof shall be deemed to have come into force on April 15, 1957 and the remaining sections shall come into force at once. Subsection (6) of Section 2 of the U. P. Act was substituted as follows: "Road, means a metalled road maintained by a State Government the Government of India or a local authority, or a route demarcated by the State Government, the Government of India or a local authority with a view to constructing along it a metalled road and includes a national highway". As a acsult of this amendment 'national highways' also came to be included within the definition of Road with effect from April 15, 1957. Thus Delhi BareillyLucknow Highway continued to be the subject to U. P. Act by reason of the retrospective amendment of section 2 (6) of the Act. By section 3 of the Amending Act, section 3 of the Principal Act was amended. For the fullstop occurring at the end of subsection (i) a colon was substituted and thereafter the following proviso was inserted: ''Provided that in the case of a national highway the highway itself shall not be deemed to be controlled area." As a consequence of the addition of this proviso to section 3 (1) of the U. P. Act which became effective with effect from 15th April, 1957, no declaration could be made under section 3 (i) of the U. P. Act in respect of 'national highways' after 15th April, 1957. This amendment left untouched declarations under section 3 (i) of the U. P. Act made prior to the intoduction of the proviso to section 3 (i) of the U. P. Act. At the same time by section 3 of the Amending Act after subsection (7) of section 3 of the Principal Act the following new subsection was inserted: "(8) Any notification issued or declaration made under this section with a reference to road which subsequently becomes a national highway under the National Highways Act, 1956 (Act No. XLVIII of 1956) shall, notwithstanding the road so becoming a national highway, continue to be valid and to be inforce." The Notification by which the land on which the applicants are alleged to have made their constructions, declaring it to be 'controlled area' had been issued in the year 1953. The DelhiBareillyLucknow Road became a 'national highway' subsequently. Glass 8 introduced by the Amending Act in the U. P. Act thus squarely applies to the notification and declares it as continuing to be valid and to be in force. The learned counsel for the applicants had to concede that on account of clause 8 added to section 3 by the Amending Act, the notification which had been issued under section 3 (i) of the U. P. Act in the year 1958 continued to be valid even after 1957 on the coming into force of the Central Act. If the notification declaring as 'controlled area', the land on which the applicants constructions stood was validly a 'controlled area' the applicants did commit an offence under section 13 of the U. P. Act since they made their constructions in November 1970. In this view of the matter I reject the reference and uphold the order of the learned Magistrate who tried Jamua Prasad and Ram Gopal under section 13 of the U. P. Road Side Control Act. The learned Sessions Judge has observed in his referring order that the Magistrate has omitted to specify the sentence which the accused were to undergo in default of payment of fine and this was a mistake. This view of the learned Sessions Judge is correct. The learned Sessions Judge has observed in his referring order that the Magistrate has omitted to specify the sentence which the accused were to undergo in default of payment of fine and this was a mistake. This view of the learned Sessions Judge is correct. Though section 13 of the U. P. Act itself does not provide for a sentence of imprisonment in default of payment of fine, the trial Magistrate has the power to do so under the relevant provisions of Code of Criminal Procedure and the Indian Penal Code. Section 33 of the Code of Criminal Procedure as far as it is relevant for the purpose of our case runs as follows: "33(i) The court of any Magistrate may award such terms of imprisonment in default of payment of fine as is authorised by law in case as such default. Provided that (a) the term is not in excess of the Magistrate's powers under this Code. (b).................. Section 40 of the Indian Penal Code runs as follows: "Except in the Chapters and sections mentioned in clauses two and three of this section the word 'offence' denotes a thing made punishable by this Code. In Chapter IV, Chapter V and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 318, 388, 389 and 445, the word 'offence' denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in sections 141, 176, 177, 201, 202, 212, 216 and 441 the word 'offence' has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine." Thus for the purpose of section 67 of the Indian Penal Code the word 'offence' donotes a thing punishable not only under the Indian Penal Code but under any special Or local law as defined in the Indian Penal Code. 'Special law' and 'local law' are defined under sections 41 and 42 respectively of the Indian Penal Code. The U. P. Act can be described as special as well as local law. 'Special law' and 'local law' are defined under sections 41 and 42 respectively of the Indian Penal Code. The U. P. Act can be described as special as well as local law. Section 67 of the Indian Penal Code is as follows: "If the offence be punishable with fine only, the imprisonment which the court imposes in default of payment of the fine shall be simple and the term for which the court directs the offender to be imprisoned, in default of payment of fine shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees and for any term not exceeding for months when the amount shall not exceed one hundred rupees and for any term not exceeding six months in any other case." Though section 13 of the Act does not by itself provide for the imposition of a sentence of imprisonment in default of payment of fine awarded, under section 33 of the Criminal Procedure Code read with sections 40 and 67 of the Indian Penal Code, the learned Magistrate who tried the cases had the power and appropriately should have awarded a sentence of imprisonment in default of payment of Under section 67 of the Indian Penal Code which has been quoted above, since a fine of Rs. 50 each had been awarded to the applicants, the learned Magistrate could have directed that the applicants, be imprisoned in default of payment of fine for a term not exceeding two months. It is conceded by the learned counsel for the applicants that is open to this court in exercise of its revisional powers to correct the order passed by the learned Magistrate and It will not amount to an enhancement of the sentances a warded. I, consequently, while upholding convictions of the applicants and maintaining the sentences awarded to them, modify them to the extent that default of payment of fine they shall undergo one month's simple imprisonment each, with this modification in the orders of the learned Magistrate, the references are rejected.