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2002 DIGILAW 250 (PAT)

Sunil Sah v. State Of Bihar

2002-02-20

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This revision is directed against the judgment dated 5.5.2000 passed by 3rd Additional Sessions Judge, Begusarai, in Cr. appeal no. 62/92 whereby the appellate court remanded the case of the trial court for re-hearing on the point of sentence and to pass order in accordance with the provisions of amended Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 . 2. As alleged, the revisionists were caught in a compromising position with a girl in the hotel Thahrao at Begusarai on 4.3.89 at 3 A.M. On trial, they were convicted and sentence by the trial court to undergo R.I. for two years for the offence under Section 5 of the Act and one year R.I. for the offence under Section 6 of the Act. Both the sentences were directed to run concurrently. Shanti Devi, the lady was released under Section 4 of the Probation of Offenders Act. 3. On appeal, the appellate court upheld the conviction of the revisionists, but remanded the case for re-hearing on the point of sentence. The amended provision of Sections 5 and 6 of the aforesaid Act provided for a minimum sentence of three years and a fine of Rs. 2000/-. The amendment was introduced into the Act by amending Act of 1986. So, the appellate court held that the trial court had committed an illegality in awarding the alleged sentence to the revisionists. 4. Before me, a pertinent question has been raised whether the trial itself was legal and valid in view of the fact that under Section 13 of the aforesaid Act a special police officer was not appointed for the area, in question, to investigate the case; and; so, cognizance taken by the trial court was vitiated. So, the order of conviction and sentence passed in consequence thereof was also bad. I shall answer the question first. In my considered opinion even if investigation was conducted by a police officer not authorised under Section 13 of the aforesaid Act, I think that cognizance could not be bad nor the subsequent trial court be vitiated. All the irregularity or illegality that occurred in the investigation, it was prior to the order of cognizance and the trial. The court taking cognizance under Section 190 was not incompetent to take cognizance on the police report submitted under Section 173 Cr. All the irregularity or illegality that occurred in the investigation, it was prior to the order of cognizance and the trial. The court taking cognizance under Section 190 was not incompetent to take cognizance on the police report submitted under Section 173 Cr. P.C. It was an error antecedent in the trial which was curable under Section 465 Cr. P.C, unless the illegality in investigation brought about a miscarriage of justice. I am fortified in my opinion by decisions reported in 1955 SCR 1150 , AIR 1961 SC 1762 , 1962(2) SCR 195 . Admittedly, neither the cognizance order was challenged nor the accused-revisionists raised the plea of investigation by a police officer not authorised at the time of framing of charge. So the only question that has to be considered is whether any failure of justice was occasioned to the revisionists. In this connection, entire evidence was led in presence of the accused-revisionists, they were given an opportunity to explain the circumstances appearing in evidence against them under Section 313 Cr. P.C. They were also heard by the appellate court as also the trial court on the point of sentence. So, no failure of justice was occasioned. Under such circumstance, the irregularity in the investigation which gave rise to the trial was cured under Section 465 Cr. P.C. 5. The next question which was raised before me is whether the appellate court was justified in enhancing the sentence impliedly by remanding the case to the trial court for re-hearing on the point of sentence only. Admittedly, amended Sections 5 and 6 of the Act provided for a minimum punishment and the trial court had failed to award minimum punishment upon the revisionists in spile of the fact that they were held guilty on the basis of evidence on record. The appellate court was not empowered to enhance the sentence unless the appeal was preferred by the State. So, the appellate court had no alternative but to remand the case to the trial court. In this connection, it was submitted that the court should have remanded the case for re-trial after setting aside the entire judgment. But I am of the opinion that limited remand by the appellate court was not violative of the provisions of the Cr.PC nor the appellate court itself enhanced the sentence. In this connection, it was submitted that the court should have remanded the case for re-trial after setting aside the entire judgment. But I am of the opinion that limited remand by the appellate court was not violative of the provisions of the Cr.PC nor the appellate court itself enhanced the sentence. Moreover, passing an order of sentence in accordance with the provisions of the Act did not itself amount to enhancement of the sentence as such. Enhancement of sentence means raising the quantum of sentence. Unless the trial court passed an order of sentence in accordance with the provisions of the Act, the order of sentence was itself non, est. So, in effect it was no sentence. Hence, the appellate court directed the trial court to pass an order in accordance with the provisions of the Act and it did not amount to any enhancement nor any direction that the trial court must enhance the sentence. 6. In the light of the aforesaid discussion, I am of the opinion that the judgment of the appellate court does not suffer from any illegality or irregularity calling for any interference by this Court. 7. In the result, this revision is dismissed.