DHIRUBHAI MADARIBHAI v. STATE — 1996 DIGILAW 232 (GUJ)

J. M. PANCHAL, J. ( 1 ) RULE. Mr. S. T. Mehta, learned A. P. P. waives service of notice of rule on behalf of the respondents. ( 2 ) ON the facts and in the circumstances of the case, the application is ordered to be heard today. ( 3 ) WHETHER the sentence imposed under Sec. 224 of the Indian Penal Code takes effect from the date of conviction under Sec. 224 of the Indian Penal Code or from the date of acquittal of convict by the High Court for the offence of which he was convicted and escaped from custody, in which he was lawfully detained, is the question which arises for consideration of the Court in this application which is submitted by prisoner Dhirubhai Madaribhai Patel through the Superintendent, central Prison, Baroda. ( 4 ) IN order to appreciate the context in which the abovementioned question arises for consideration, it would be relevant to notice certain facts : In Sessions case No. 74 of 1987 prisoner Dhirubhai Madaribhai Patel was tried for an offence punishable under Sec. 302 of the Indian Penal Code by the learned Additional sessions Judge, Valsad at Navsari. By judgment and order dated 29/08/1988, the prisoner was convicted by the Court for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. ( 5 ) FEELING aggrieved by the order of conviction and sentence, the prisoner preferred Criminal Appeal No. 745 of 1998 in the High Court. On 12/10/1990, the prisoner was granted furlough leave for a period of 14 days by the Inspector general of Prisons under the provisions of the Prisoners (Bombay Furlough and 1parole) Rules, 1959. The prisoner chose not to report to the jail authorities and escaped from custody in which he was lawfully detained. Ultimately, the prisoner was arrested at Valsad from his residence on 18/05/1993, i. e. , after a period of 2 years, 6 months and 22 days. The prisoner was, therefore, prosecuted for the offence punishable under Sec. 224 of the Indian Penal Code. The learned Judicial Magistrate, first Class at Valsad convicted the prisoner for the offence punishable under Sec. 224 of the Indian Penal Code and sentenced him to suffer simple imprisonment for one year by judgment and order dated 17/06/1993. The prisoner was, therefore, prosecuted for the offence punishable under Sec. 224 of the Indian Penal Code. The learned Judicial Magistrate, first Class at Valsad convicted the prisoner for the offence punishable under Sec. 224 of the Indian Penal Code and sentenced him to suffer simple imprisonment for one year by judgment and order dated 17/06/1993. Feeling aggrieved by the order of conviction and sentence, the prisoner preferred Criminal Appeal No. 16 of 1993 before the Sessions Court, Valsad at Navsari. The learned Sessions Judge, who heard the appeal, dismissed the same by judgment and order dated 13/09/1993 and confirmed the conviction recorded and sentence imposed on the prisoner under Sec. 224 of the Indian Penal Code. The prisoner, therefore, moved the High Court by way of filing Criminal Revision Application No. 531 of 1993 and challenged the order passed by the learned Sessions Judge dismissing the appeal which was directed against the conviction recorded by the learned Judicial Magistrate, first Class, Valsad under Sec. 224 of the Indian Penal Code. The Court (Coram: h. L. Gokhale, J.) dismissed the revision appalication by judgment and order dated 28/04/1994. ( 6 ) THEREAFTER, Criminal Appeal No. 745 of 1988, which was preferred by the prisoner against the judgment and order convicting the prisoner for the offence punishable under Sec. 302 of the Indian Penal Code, came to be heard by a Division bench comprising R. R. Jain and H. R. Shelat, JJ. The Division Bench allowed the appeal filed by the prisoner by judgment and order dated 19/02/1996 and set aside the conviction and sentence passed by the trial Court against the prisoner. ( 7 ) BY means of submitting this application, the prisoner has contended that as he is acquitted in appeal, it should be construed that he is acquitted with retroactive effect, i. e. , from the date of judgment of the trial Court and as he has undergone the sentence imposed by the Court for the offence punishable under Sec. 224 of the Indian Penal Code, necessary direction should be issued to release him from jail forthwith. ( 8 ) MR. ( 8 ) MR. S. T. Mehta, learned A. P. P. has contended that the sentence imposed under Sec. 224 of the Indian Penal Code is in addition to the punishment for which the prisoner was detained in custody and, therefore, sentence imposed under Sec. 224 of the Indian Penal Code would take effect from the date of acquittal of the prisoner by the High Court of the offence for which he was convicted earlier and not from date of conviction of the prisoner under Sec. 224 of the Indian Penal Code. ( 9 ) THE question turns upon the construction of Sec. 386 of the Code of Criminal procedure. Section 386 of the Code deals with powers of Appellate Court and reads as under :-"386. ( 9 ) THE question turns upon the construction of Sec. 386 of the Code of Criminal procedure. Section 386 of the Code deals with powers of Appellate Court and reads as under :-"386. Powers of the Appellate Court :- After perusing such record and hearing the appellant or his Pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Sec. 377 or Sec. 378, the accused, if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction - (i) reverse the finding and sentence and acquit or dischage the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence - (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper : provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement : provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order of sentence under appeal. " ( 10 ) A bare reading of Sec. 386 indicates that after perusing such record and hearing the appellant or his Pleader, if he appears, and the Public Prosecutor, if he appears, the appellate Court may, in an appeal from a conviction, reverse the finding and sentence and acquit the accused. ( 11 ) THE word "reverse" means to make void, to set aside or annul or turn into something completely opposite in character. It means a complete change in substance and form. The term conveys a sense of obliteration or effacement which happens when conviction is set aside. The word "finding" relates to the result of a judicial examination or inquiry especially into some matter of fact. Hence, the expression "reverse the finding and sentence" occurring in clause (b) of Sec. 386 means reversing of the finding upon which the conviction is based. The words "reverse the finding and sentence" mean total obliteration of the finding of conviction and sentence recorded and the term "reversal" connotes the complete annulment of a finding of guilt by the Appellate Court so as to convert a decision that a man is guilty into a finding that he is innocent. ( 12 ) THE general rules bearing on ordinary penal statutes in their construction must govern this case. An order of acquittal by appellate Court wipes out the guilt and turpitude attaching the conviction, for, the true implication of an acquittal is as if the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on benefit of doubt or rests upon an overall rejection of the prosecution case. The sequiter that the order of acquittal implies the innocence of the accused is not dependant upon the stage of the Court proceedings at which the order was passed but it depends, plainly upon the fact of acquittal itself. When a person is acquitted in an appeal, it follows that the Appellate Court has exercised its power in the place of the original Court and the innocence, acquittal and release must be substituted for and shall have retroactive effect from the date of judgment of the trial Court. The appellate acquittal must relate back to the date of the trial courts verdict and substitutes it. An appeal is continuation of original proceedings and an appellate judgment replaces the judgment appealed against. The appellate acquittal must relate back to the date of the trial courts verdict and substitutes it. An appeal is continuation of original proceedings and an appellate judgment replaces the judgment appealed against. Under the circumstances, we are of the view that the High Court while allowing Criminal appeal No. 745 of 1988 exercised its powers in place of the Sessions Court, Valsad at Navsari and the innocence, acquittal and release of the prisoner was substituted from the date of judgment of the trial Court. ( 13 ) IN the view, which we are taking, we are supported by the decision of the supreme Court rendered in the case of Manni Lal v. Parmai Lal and Ors. , AIR 1971 sc 330 . ( 14 ) BEFORE examining the facts and ratio of Manni Lals case (supra), it would be worthwhile to notice here a general principle of criminal law bearing on this issue. This principle as reiterated by the Supreme Court in the case of Dilip Kumar sharma and Ors. v. State of Madhya Pradesh, AIR 1976 SC 133 , is as follows. ( 15 ) AN order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction for the offence is quashed by the High Court, to borrow the felicitous words of Krishna Iyer, J. "killed the conviction not then, but performed the formal obsequies of the order which had died at birth. " ( 16 ) IN Manni Lal v. Parmai Lals case (supra), the Supreme Court applied this principle to the question of the disqualification of a candidate for being chosen to fill a seat in State Legislative Assembly. In that case, the last date for filing nominations from the U. P. Legislative Assembly Constituency, Hardoi was 9/01/1969. The returned candidate was convicted two days later on 11/01/1969 and sentenced, inter alia, to 10 years rigorous imprisonment under Sec. 304 of the Indian Penal Code. On 16/01/1969, he filed an appeal against his conviction in the High Court. Polling took place on 9/02/1969 and the result of the election was declared on 11/02/1969 and he was successful in the election. On 16/01/1969, he filed an appeal against his conviction in the High Court. Polling took place on 9/02/1969 and the result of the election was declared on 11/02/1969 and he was successful in the election. His election was challenged by an election petition primarily on the ground that he was disqualified under Sec. 8 (2) of the Representation of the People Act, because on the date of his election he stood convicted for an offence of imprisonment exceeding two years. Before the election petition was decided, the returned candidates appeal was allowed on 30/09/1969 by the High Court and his conviction and sentence were set aside. ( 17 ) THE question for decision before the Supreme Court was : What was the effect of the acquittal in appeal of the returned candidate before the decision of the election petition on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being chosen ? The Supreme Court answered this question thus :". . . . IT is clear that, though the conviction of respondent No. 1 was recorded by the trial Court on 11/01/1969, he was acquitted on 30/09/1969 in appeal which acquittal had the effect of completely wiping out the conviction. The appeal having once been allowed it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded. In a criminal case, acquittal in appeal does not take effect merely from the date of appellate order setting aside the conviction. It has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. The disqualification relied upon by the appellant was laid under Sec. 8 (2) of the Act read with Art. 102 (1) (e) of the Constitution. The provision is that a person convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified for a further period of five years since his release. The argument on behalf of the appellant was that, though respondent No. 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9/02/1969, the date of polling, as well as on 11/02/1969, when the result was declared. . . . . The argument on behalf of the appellant was that, though respondent No. 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9/02/1969, the date of polling, as well as on 11/02/1969, when the result was declared. . . . . The argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all. The disqualification, which existed on the 9th or 11/02/1969 as a fact, was wiped out when the conviction recorded on 11/01/1969 was set aside and that acquittal took effect from that very date. It is significant that the High Court under sec. 100 (1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election a returned candidate was not qualified, or was qualified, to be choosen to fill the seat under the constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the election petition. In this case, the High Court proceeded to pronounce the judgment on 27/10/1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11/01/1969. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11/02/1969, respondent No. 1 was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High court to declare the election void could not be formed. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11/02/1969, respondent No. 1 was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High court to declare the election void could not be formed. The situation is similar to the one that could have come into existence if Parliament itself had chosen to repeal ( 18 ) FROM the above quoted decision of the Supreme Court, it is clear that the appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which conviction was recorded and the sentence awarded by the trial Court. Acquittal by the High Court has the effect of completely wiping out conviction and true implication of acquittal recorded by High court is that it wiped off conviction and sentence for all purposes with retrospective effect and as effectively as if it had never been passed. ( 19 ) IN view of the above discussion, we are of the opinion that when Criminal appeal No. 745 of 1988 was allowed by the High Court vide judgment and order dated 19/02/1996, conviction recorded and sentence imposed by the learned sessions Judge, Valsad at Navsari in Sessions Case No. 74 of 1987 were completely wiped off with retrospective effect. Therefore, the sentence imposed on the prisoner under Sec. 224 of the Indian Penal Code would take effect from the date of his conviction under Sec. 224 of the Indian Penal Code which was recorded by the learned Judicial Magistrate, First Class, Valsad vide judgment and order dated 17/06/1993 and not from the date of acquittal recorded by High Court. As noted earlier, for the offence punishable under Sec. 224 of the Indian Penal Code, prisoner was convicted and sentenced to suffer simple imprisonment for one year. Having regard to the provisions of Sec. 428 of the Code of Criminal Procedure, 1973, prisoner would be entitled to set off and we hold that prisoner has served out sentence on 17/05/1994 so far as offence punishable under Sec. 224 of the Indian Penal Code is concerned. ( 20 ) FOR the foregoing reasons, the application succeeds. We direct the respondents to set at liberty prisoner Dhirubhai Madaribhai Patel forthwith if no longer required in any other case. ( 20 ) FOR the foregoing reasons, the application succeeds. We direct the respondents to set at liberty prisoner Dhirubhai Madaribhai Patel forthwith if no longer required in any other case. Rule is made absolute as indicated hereinabove. .