K. J. VAIDYA, J. ( 1 ) THE above acquittal appeal arises out of the judgment and order dated 2/12/1980 in Criminal Case No. 407 of 1980 passed by the learned J. M. F. C. Anjar-Kachchh whereby the respon- dent-accused Luhar Mithu @ Harun Ismail who came to be tried for the offence under Sec. 142 of Bombay Police Act 1951 (for short hereafter referred to as `police Act) came to be acquitted ( 2 ) THE accused was admittedly externed out of the area of Kachchh district and all adjoining districts by the externment order dated 16/10/1979 passed under Sec. 56 of the Police Act by the learned Sub-Divisional Magistrate Anjar for two years. The accused hat also admittedly entered Anjar town without any prior permission and was arrested on 6/08/1980 by P. S. I. Mr. V. S. Patel. Thus for the alleged breach of externment order a complaint came to be filed for offence under Sec. 142 of the Police Act against the accused who was ultimately chargesheeted for the same to stand the trial. ( 3 ) AT the trial the accused pleaded not guilty and further sub- mitted that he had come to Anjar town from Palanpur on receiving information that the health of his father was bad. ( 4 ) THE trial Court after recording and appreciating the evidence acquitted the accused mainly relying upon a Full Bench decision in the case of Sabuddin Shaikh Mansur v. J. S. Thakar reported in (1968) IX GLR 142 (for short hereafter referred to as P. B. Decision Supra ). ( 5 ) HENCE this acquittal appeal by the aggrieved State. ( 6 ) MR. D. K. Trivedi learned Addl. P. P. appearing for the State submitted that the impugned order of acquittal on face of it is illegal as the said F. B. decision (Sabuddins case) (supra) is not applicable at all to the instant case as the same is with reference to the unamended Sec. 56 of the Police Act where the word `specially empowered was very much in existance. Submits Mr. Trivedi that the word `specially earlier appearing in Sec. 56 of the Police Act subsequently appears to have been deleted by an amendment by virtue of Sec. 11 of the Bombay Police (Gujarat Amendment) Act 1977 that is Gujarat Act No. 16 of 1978 (for short referred as the said Amending Act ). Submits Mr. Trivedi that the word `specially earlier appearing in Sec. 56 of the Police Act subsequently appears to have been deleted by an amendment by virtue of Sec. 11 of the Bombay Police (Gujarat Amendment) Act 1977 that is Gujarat Act No. 16 of 1978 (for short referred as the said Amending Act ). ( 7 ) AS against this Mr. B. R. Parikh learned Advocate (appointed) has supported the order of acquittal. He in the alternative further submitted that if it is held that the trial Court has committed an error in relying upon the F. B. decision (Sabuddins case) (supra) even then it will be too harsh to convict and sentence the accused after 9 years. ( 8 ) NOW in order to appreciate the correctness and legality of the submission made by Mr. Trivedi let us advert first to Sec. 142 of the Police Act for which the accused came to be tried. This Sec. 142 in substance pertains to the penalty for entering without permission to the area from which a person is directed to remove himself or for over-staying. It also provides for punishment on being convicted. That part of Sec. 142 of Police Act reads as under :sec. 142 Without prejudice to the power to arrest and remove a person in the circumstances and in the manner provided in Sec. 62 any person who (a) xxx. . . . . . xxx. . . . . . xxx. . . . . . xxx. . . (b) xxx. . . . . . xxx. . . . . . xxx. . . . . . xxx. . . shall on conviction be punished with imprisonment for a term which may extend to two years but shall not except for reasons to be recorded in writing be less than six months and shall also be liable to fine. ( 9 ) NOW lot me next advert to that part of the prosecution evidence which refers to the complained a breach of the said externment order dates 16/10/1979 passed under Sec. 56 of the Police Act. The prosecution in this regard has examined one Mr. B. M. Bhatt P. W. 6 who was Sub-Divisional Magistrate Anjar at the relevant point of time. The prosecution in this regard has examined one Mr. B. M. Bhatt P. W. 6 who was Sub-Divisional Magistrate Anjar at the relevant point of time. He has stated that he has been empowered by the State Govern- ment to pass the order of externment under Sec. 56 of the Police Act by virtue of a Notification dated 30/09/1978 Ex. 20 issued by Home Department (Special) Government of Gujarat Gandhinagar for the ready reference the said Notification is reproduced as under notification home Department (Special) sachivalaya Gandhinagar dated the 30th Sept. 1978 bombay Police Act 1951 : No GH/g/78/207/sb. I/ext-1075-5392:- In exercise of the powers conferred by Secs. 56 57 and 63 of the Bombay Police Act 1951 (Bom XX (I of 1951) and in supersession of all Government Notifications issued from time to time under the said sections before the coming into operation of the Bombay Police (Gujarat Amendment) Act 1977 (Guj. 16 of 1978 ). The Government of Gujarat hereby empowers the Sub-Divisional Magistrates placed in-charge of the sub-divisions specified in column 1 of the Schedule appended here to in the districts respectively specified against column 2 of the said Schedule for the purpose of the said sectionsby order and in the name of the Governor of Gujarat. FATEH SINGH JASOL Deputy Secretary to the Government. . . . . . . No SB. I/ext/1075-5392 Home Department (Special) Sachivalaya Gandhinagar Dated the 30th Sept. 1978. forwarded with compliments to :- All District Magistrates respective Sub-Divisional Magistrates. Sd/- (K. R. Gosai) Section Officer Home Department (Special ). . . . . . . . ( 10 ) NOW in cross-examination said learned Sub-Divisional Magistrate admitted that the Govt. has not empowered him by and in his name to exercise power of externment. He further after seeing the said Notification Exh. 20 admitted that he is not so empowered by his name. The trial Court on the basis of the aforesaid meaningless admission and without appreciating the fact that the word specially had already been deleted from Sec. 56 of the Police Act by virtue of Sec. 11 of the said Amending Act has readily relied upon the F. B. decision (Sabuddins case) (supra) and acquitted the accused. The said Sec. 11 of the said Amending Act amending Sec. 56 of the Police Act reads as under :in the principal Act in Sec. 56 the word `specially shall be deleted. The said Sec. 11 of the said Amending Act amending Sec. 56 of the Police Act reads as under :in the principal Act in Sec. 56 the word `specially shall be deleted. Thus in view of the fact that word `specially stands already deleted from Sec. 56 of the Police Act the so called admission elicited in cross examination of the learned S. D. M. namely that the Notification dtd. 30-9-1978 had not empowered him to exercise the power under Sec. 56 of the Police Act namewise is absolutely futile meaningless and misleading. None unfortunately has looked into the contents of Exh. 20 and of the said Amending Act. Further the trial Court while acquitting the accused has relied upon the F. B. decision (Sabuddins case) (supra) but this decision also in view of the fact that the word `specially stands deleted by Sec. 11 of the Amend- ing Act ceases to have any applicability whatsoever. Its indeed unfortunate that the desired care is not taken by all concerned. The learned P. P. with little more vigilence could have cleared the confusion while arguing the case pointing out the effect of the said Amending Act. Had the learned P. P. read the contents of Exh. 20 Notification acquittal would not have been recorded. The learned S. D. M. also in his turn when he was placed with a misleading question in cross-exam- ination could have immediately volunteered the correct reply pointing out that in view of the Amending Act it was not necessary to be so specially empowered to exercise the power under Sec. 56 of the Police Act. This was certainly expected from the witness who himself passed the order of externment and was concious of the said Amending Act. Above all this officers the trial Court at least should have exercised more care and ought to have been vigilent in this matter. It had got to pierce through the deceptive veil of arguments. What was required to be done by all concerned was just to read Exh. 20 Notification where the reference is made to the Amending Act. Unfortunately but for this darkness at noon the case would have once and for all ended on 2/12/1980 Under the circumstances legal and natural consequences of the above discussion is that the accused requires to be convicted for the alleged offence under Sec. 142 of the Police Act. 20 Notification where the reference is made to the Amending Act. Unfortunately but for this darkness at noon the case would have once and for all ended on 2/12/1980 Under the circumstances legal and natural consequences of the above discussion is that the accused requires to be convicted for the alleged offence under Sec. 142 of the Police Act. ( 11 ) THIS necessarily takes me to the last submission of Mr. Parikh that it will be indeed too harsh to convict and sentence the accused after about 9 years. It is not possible to accede to this submission of Mr. Parikh. It is true that these days the hearing of appeal takes considerably longer time but the fact remains that the judicial system in the country has come to such a critical pass and is passing through such a severe bottle-neck of the time and as it is so apprehended in certain quarters that the accelerating pressure of work and time gap between the date of offence filing of the charge-sheet examination of witnesses before the Court delivery of judgment and order (acquittal or conviction as the ease may be) the filing of appeal placing the same for admission and in case of admission the final hearing of the said appeal before the High Court is not likely to be lessened or shorten up in forseeable future unless something radical happens in the matter may be so for the temporary as the same cannot be a permanent feature. I have a feeling that vexed problem of delay-denied justice must be present to the mind of peoples Government not only that but further I am quite optimistic that something will be done in the matter by responsible Government so that the Constitutional promise of justice and speedy trial do not turn out to be as it a lifeless cold-print in grave yard of book. Any way if on the evidence brought on the record the appellate Court feels satisfied that the accused has been illegally acquitted then in that case it is bounden duty of it to pass necessary legal order of conviction. As against that to accept the sub- mission of the learned Advocate Mr. Any way if on the evidence brought on the record the appellate Court feels satisfied that the accused has been illegally acquitted then in that case it is bounden duty of it to pass necessary legal order of conviction. As against that to accept the sub- mission of the learned Advocate Mr. Parikh that to record an order of conviction after 9 years is too harsh is frought with two serious consequences namely : (i) the same will be tantamount to writing-off powers of High Court in passing the order of conviction in acquittal appeals as provided in the Code of Criminal Procedure 1973 once it is shown that offence as become stale having been committed number of years back (ii) same in its turn turn-out to be a boon of paradise to the accused. This simply is not done and hence cannot be permitted. It is true that the protracted proceedings before the Court in many cases do hang like a sword of Democles on the head of the accused and till the said legal proceedings are terminated the tale of woe of the physical psychological and financial suffering of the accused does not end. It is also quite true that in a given case in the event of the acquittal appeal being allowed and the accused is convicted after number of years after the date of offence there is every likelihood that with the passage of time much water passes by and many and marked changes run through the lives of the accused for example. . . (i) the warring factions after the alleged incident had come to terms and become friendly and peaceful citizen and/or (ii) the accused is otherwise has become peaceful law abiding unit of the society and his stability has started gathering roots in and/or (iii) the accused got married and/or minor children are to be reared up and/or (iv) the accused has to shoulder some other responsibilities and/or (v) the accused has abandoned to live and thrive on life of crimes and has turned a new leaf in his life and/or (vi) that the offence is of a technical or a trivial nature. Under such circumstances though as warranted by law the accused is required to be convicted but then the list of aforesaid circumstances are the circumstances which are required to be taken into consideration by the Court for determining the just and proper sentence. It is true that the order of sentence is not to be passed by way of vengeance but at the same time the principles of penology has its own place in Criminal Jurispudance depending upon the facts and circumstances of the each case. For these reasons though I disagree with Mr. Parikh that the order of conviction in the facts and circum- stances of the case cannot be passed as it would be harsh. I do see a reason in submission of Mr. Parikh that at the time while awarding the sentence the factum of the protracted proceeding hangover for 9 years and turn of events in the life of accused during this 9 years can be taken into consideration. ( 12 ) IN the result this acquittal appeal deserves to be allowed and is allowed accordingly. The impugned judgment and order of acquittal passed by the trial Court is quashed and set aside. Accordingly further the accused is hereby convicted for the offence under Sec. 142 of the Police Act and notice is hereby made returnable on 6/09/1989 to be issued to the respondent accused to hear him on the point of sentence. 20-10-1989 ( 13 ) AFTER recording the order of conviction on 11/08/1989 notice was issued to the accused to remain present on 6/09/1989 However it appears that for one reason or another the notice was not served on the accused and the matter could not be taken up on the dates earlier fixed. Today Mr. B. R. Parikh the learned Advocate for the respondent-accused and Mr. D. K. Trivedi learned Addl. P. P. for the State are present. Heard both of them on the point of sentence. Mr. Parikh learned Advocate appearing for the accused has stressed following circumstances to be taken into consideration for taking a reasonable view of the matter while finally imposing sentence on the accused. He further submitted that having regard to the facts and circumstances of the case this is a case wherein the Court can justly award a sentence less than six months. He further submitted that having regard to the facts and circumstances of the case this is a case wherein the Court can justly award a sentence less than six months. They are (i) that the Criminal Cage under appeal is of the year 1980; (ii) that technically the accused did commit an offence under Sec. 142 of the Bombay Police Act by committing breach of the conditions under the externment order passed by the learned Sub-Divisional Magistrate Anjar against him but the same was committed under helpless emergent situation namely his father was seriously ailing and was bed-ridden and therefore he appears to have risked the breach of condition by coming to see him at Anjar; (iii) that there is nothing on the record to show that after committing broach of the said condition and entering Anjar he committed any one offence; (iv) that the accused was already in jail for about 3 months and 4 days after he was so arrested on 29/08/1980 (v) that he hat also undergone the pain and agony of the sward of pending appeal hearing. ( 14 ) THERE is a considerable force in the aforesaid submissions of Mr. Parikh. Thus in peculiar facts and circumstances of the case it appears to me that the ends of justice will be fully met if 80 far as the question of the sentence of substantive imprisonment is concerned the sentence of imprisonment for 3 months and 4 days already undergone in jail by the accused pending the trial is held to be sufficient. The question yet remains to be considered is whether the sentence of fine should be imposed accused or not ? On this point the learned Addl. P. P. was fair enough to point me out from the report of the D. S. P. Kutch that the accused was living a wandering life and hence it can reasonably be inferred that he had no means of livelihood. Under the circumstances it would not be just to punish the poverty by making the accused to pay fine. ( 15 ) IN the result the acquittal appeal is allowed and the respondent-accused is sentenced as aforesaid. Appeal allowed. .