Maruti Shamrao Chavan v. State of Maharashtra — 1997 DIGILAW 456 (BOM)

JUDGMENT - S.S. PARKAR, J.:---This group of Revision Applications is filed by the applicant, who was common accused in all prosecutions, against the orders of conviction under sections 409 or 408 and 477 of I.P.C and the sentence passed by the Additional Sessions Judge, Satara, to suffer S.I. till rising of the Court and to pay a fine of Rs. 45/-, in default, to suffer S.I. for one month. As the separate prosecutions were launched against the applicant, the applicant has filed separate Revision Applications but the point involved being identical in all these Revision Applications they are being disposed of by a common judgement. 2.The short question which arises in all these Revision Applications is whether in appeal against the order of conviction the Sessions Court can consider only the question of sentence on the concession made by the advocate or is duty bound to consider the merits of the case and satisfy itself whether the conviction was rightly recorded or not by the trial Court. In my opinion the Appellate Court is bound to consider the case on merits and satisfy itself whether the order of conviction is rightly recorded by the trial Court or not before proceeding to consider the propriety of the sentence awarded by the trial Court, notwithstanding the concession made in that behalf by the advocate for the accused. The facts leading to the present revision applications arise in the following manner. 3.The applicant was working as Gramsevak in village Mandhardeo and village Verdi during the period from 16th March 1975 to 2nd October 1978. In the audit it was revealed that the applicant had misappropriated certain funds and, therefore, 22 cases were instituted against him in the Court of JMFC, Wai, pursuant to the two F.I.R. filed by P.W. 1. The total amount involved in the 22 cases was Rs. 20,665,45. The applicant was acquitted in 12 cases involving amount of Rs. 19, 101,46 and was convicted in 10 cases involving the alleged misappropriation of the amount of Rs. 1563.99. In the said 10 cases the applicant filed appeals, out of which, two appeals involving the misappropriation of Rs. 1245/- were allowed on merits. In respect of 8 appeals involving alleged misappropriation of Rs. 309.99 the Appellate Court, without considering the merits of the case as regards the conviction proceeded to consider the sentence. 1563.99. In the said 10 cases the applicant filed appeals, out of which, two appeals involving the misappropriation of Rs. 1245/- were allowed on merits. In respect of 8 appeals involving alleged misappropriation of Rs. 309.99 the Appellate Court, without considering the merits of the case as regards the conviction proceeded to consider the sentence. The trial Court had convicted the accused either under section 409 or under section 408 and under section 477 of I.P.C. and sentenced the accused either to imprisonment for one month and to pay a fine of Rs. 100/- and in default to suffer S.I. for one month or in some cases the accused was sentenced to imprisonment till rising of the Court and to pay a fine of Rs. 100/- or to pay a fine of Rs. 50/- and in default to suffer imprisonment for one month. 4.In all the appeals preferred against the order of conviction the learned Additional Sessions, Judge, Satara has, without going into the merits of the case, upheld the order of conviction and reduced the substantive sentence uniformly to suffer S.I. till rising of the Court and to pay a fine of Rs. 45 and in default to suffer S.I. for one month. This was done by the Appellate Court without considering the merits of the case and satisfying itself whether the applicant was guilty or not. This seems to have been done by the learned Judge on the concession made by the advocate for accused who did not appear to have challenged the order of conviction and argued the case only for the reduction of sentences, on the ground that they were excessive considering the meagre amount of misappropriation involved in the matters. 5.In my view the appeals which were filed before the Additional Sessions Judge being first appeals had to be examined on the facts and it was the duty of the Appellate Court to examine the facts and re-appreciate the evidence on record and satisfy itself about the correctness of the order of conviction before proceeding to consider the appropriateness or otherwise of the sentence imposed on the accused. The Addl. The Addl. Sessions Judge had failed in his duty and did not fulfill the requirement of the provisions of Cr.P.C. Under section 386 of Cr.P.C. the Appellate Court has to peruse the record and after hearing the appellant or his pleader and the Public Prosecutor, if it appears that there is no sufficient ground for interfering can dismiss the appeal. The power conferred on Appeal Court under section 386 of Cr.P.C. is in the nature of duty and cannot be waived even by the concession made by the Counsel of the accused. 6.I have gone through the judgments of the Appellate Court and find that the learned Additional Sessions Judge has not considered the evidence on record nor has given his finding that the order of conviction recorded by the trial Court was correct. The Additional Sessions Judge has failed in his duty cast under the law and, therefore, the impugned orders dated 28th June 1991 passed by the Additional Sessions Judge, Satara, in all the above matters, are liable to be set aside. The view taken above is supported by the observations of the Assam and Nagaland High Court in the case of (Kutub Ali v. The State)1, A.I.R. 1968 Assam Nagaland 14 cited by Mr. Mohite, though in that case it was found that there were no indications that the learned Sessions Judge did not apply his mind to the case at all. The relevant observations of the Court in that case are as follows: "But in a criminal appeal, unlike in a civil appeal, it is the duty of the Appellate Court to satisfy for itself, whether the matter was argued or not, that the evidence for the prosecution established the guilt of the accused person. That duty the Sessions Judge is not absolved from performing, by reason of merely a concession made by the Counsel for the appellant, for, in criminal matters a party cannot be pinned down to the mere concessions made by the Counsel...." 7.For the aforesaid reasons, I allow these Revision Applications and set aside the orders dated 28th June 1991 passed by the learned Additional Sessions Judge, Satara in all the Criminal Appeals and remand the matters to the said Court for considering and deciding the same in accordance with law, Rule is made absolute accordingly. Revision applications allowed.