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2003 DIGILAW 236 (MP)

Kela Pardi v. State of M. P.

2003-02-04

AJIT SINGH

body2003
JUDGMENT With the consent of learned counsel for the parties, the case is finally heard. This revision is directed against the judgment dated 21.9.2001 passed in Criminal Appeal No. 27/2001, by the First Additional Sessions Judge, Raisen, whereby sentence of fine awarded to the applicant by the Trial Court has been set aside and the case has been remanded for a decision afresh seemingly on sentence. On 5 10.1994, the house of the applicant was allegedly searched by the Forest officers during which 10 hides of rabbit and one hide of black-deer were found and seized. Consequently, the applicant was charged and prosecuted for offences under sections 9,40,43 and 51 of the Wild Life Protection Act (in short 'the Act'). The Trial Court after appreciating the evidence on record found the applicant guilty of charges under sections 40, 43 read with section 51 of the Act and sentenced him to a fine of Rs. 4,000/-, or in default of payment of fine to undergo simple imprisonment for four months. The State did not file any appeal against the sentence awarded to him. The applicant preferred an appeal and challenged the findings of the Trial Court regarding his conviction. The appellate Court instead of deciding the appeal on merit, by the impugned judgment held that since the provision of section 51 of the Act prescribes for mandatory jail sentence of minimum one year and a fine which shall not be less than Rs. 5,000/-, the sentence awarded in the case was not legal. It, therefore, set aside the sentence of fine and remanded the case to the Trial Court for a decision afresh. The learned counsel for the applicant has urged that the appellate Court committed an illegality in remanding the case without first deciding the appeal on merit. On a perusal of the impugned judgment it is clear that although the applicant had preferred the appeal for its decision on merit against the findings of the Trial Court regarding his conviction and yet the appellate Court did not decide the same on merit. Instead, it only held that the sentence awarded in the case was not in accordance with law and remanded the same. The appellate Court ought to have first decided the appeal on merit and only then if it was so necessary should have remanded the case for its decision on sentence. Instead, it only held that the sentence awarded in the case was not in accordance with law and remanded the same. The appellate Court ought to have first decided the appeal on merit and only then if it was so necessary should have remanded the case for its decision on sentence. The impugned order thus suffers from material illegality and the· appellate Court failed to exercise its jurisdiction vested in it under law. Consequently, the impugned judgment is set aside. The appellate Court shall now first decide the appeal on merit and thereafter, pass an appropriate order on the question of sentence. The revision is allowed.