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Himachal Pradesh High Court · body

2009 DIGILAW 7 (HP)

BHUPINDER SINGH v. STATE OF H. P.

2009-01-02

DEEPAK GUPTA

body2009
JUDGMENT Per Deepak Gupta, J. (Oral):- This Criminal Revision is directed against the JUDGMENT of the learned Additional Sessions Judge-II, Kangra at Dharamshala, in Criminal appeal No. 10-N/2000 dated 3.7.2002, whereby while dismissing the appeal filed by the accused he modified the JUDGMENT of the trial Court and set-aside the order of acquittal which had been passed by the learned trial Court in favour of the accused in respect of the offence under Section 457 IPC. Briefly stated the facts of the case are that the petitioner was tried for having committed offences punishable under Section 380 read with Section 457 IPC. F.I.R. 4 of 2000 was registered on the complaint of one Shri Rajneesh Mahajan. The complainant stated that he alongwith his family members had gone to D.M.C, Ludhiana for the treatment of his sister. He had locked his residential house. When he came back he found that the lock of the main gate was missing and when he entered his room the almirah in the room was open. From the almirah, Rs.38,000/-, one key, one pass book, photocopies of two FDRs etc. was found missing. Matter was reported to the police. After investigation, the accused was arrested. During investigation, the accused made a disclosure statement. An amount of Rs.32,000/- was recovered alongwith FDRs, Challan, etc from the accused. The learned trial Court accepted the recovery to be legal and on the basis of the recovery the trial Court came to the conclusion that the accused had committed the theft. He accordingly convicted the accused under Section 380 IPC and sentenced him to under go simple imprisonment for six months and to pay a fine of Rs.2,000/- and in default of payment of fine he was directed to undergo simple imprisonment for two months. 2. As far as the charge under Section 457 IPC is concerned, the learned trial Court held that this offence had not been proved. Section 457 of the Indian Penal Code deals with lurking house trespass or house breaking at night in order to commit an offence punishable with imprisonment. There was no evidence that the accused had entered the house of the complainant after sun set and before sun rise. Therefore, he acquitted the accused of this offence. 3. The accused filed an appeal challenging his conviction under Section 380 IPC. There was no evidence that the accused had entered the house of the complainant after sun set and before sun rise. Therefore, he acquitted the accused of this offence. 3. The accused filed an appeal challenging his conviction under Section 380 IPC. The learned Sessions Judge uphold the order of conviction mainly on the ground that even though one of the witness to the recovery of the cash etc. had not supported the prosecution, the other witness to the recovery had fully supported the prosecution and also that the amount recovered on the basis of the disclosure statement was Rs.32,000/- and this could not have been planted by anybody. As far as this portion of the JUDGMENT is concerned, this is a pure finding of fact and I am in agreement with both the courts below that the recovery on the basis of the disclosure statement of the accused has been proved beyond reasonable doubt. Once it is held that the recovery has been affected from the accused it is apparent that it is the accused who must have committed the theft because the money and documents missing from the almirah of the complainant were recovered from the accused. 4. However, the most disturbing feature of this case is the manner in which the learned Sessions Judge has convicted the accused under Section 457 IPC. He had no jurisdiction whatsoever to convict the accused and upset the findings of acquittal recorded by the learned trial Court. Section 378 of the Code of Criminal Procedure provides for appeals against acquittal. In case the State was aggrieved by the order of the learned trial Court acquitting the accused of having committed the offence punishable under Section 457, the State alone could have filed the appeal. The said appeal could have been filed under Section 378 of the Code of Criminal Procedure. As per the provisions of Section 378 of the Code of Criminal Procedure as they stood in the year 2000 the appeal could have been filed only in the High Court and this appeal could not have been filed directly and State was required to file a petition for leave to appeal and only after leave was granted by this Court could such an appeal have been entertained. The learned Sessions Judge had no jurisdiction to entertain an appeal. 5. The learned Sessions Judge had no jurisdiction to entertain an appeal. 5. This Court is normally reluctant to comment on the manner in which a Presiding Officer has conducted the proceedings. A decision may be right or wrong but when a Presiding Officer passes a JUDGMENT in total ignorance of the basic principles of law and in violation of the statutory provisions of law then this Court would be failing its duty if it did not comment on the working of the Court. 6. The learned Sessions Judge did not have any authority to convict the accused of an offence when there was no appeal pending before him. I am constrained to observe that the learned Sessions Judge totally ignored or was blissfully ignorant of the legal provisions. Even the High Court in exercise of its inherent jurisdiction cannot convict an accused of an offence unless some appeal had been filed. Even in a case where sentence has to be enhanced then also notice is required to be given to the accused. In this case the learned Sessions Judge did not even care to give any notice to the accused. I have perused the entire record of the learned Sessions Judge and it does not show that either the accused or his counsel was ever given notice that the learned Sessions Judge wanted to convict the accused under Section 457. Though I have already held that the learned Sessions Judge had no jurisdiction to entertain an appeal, even assuming he had such jurisdiction the rules of natural justice were required to be followed. It is expected from every Judicial Officer to know the basic principles of law. One of the basic rules of law is that no party should be condemned unheard. The principle audi alteram partem is a principle enshrined in our legal system. Even when any law does not prescribe any hearing to be given then also more often than not this principle has been applied in every case on the ground that no party should be condemned unheard. In case the learned Sessions Judge had issued notice the counsel for the accused would have pointed out to the Court that it had no jurisdiction to hear the matter. This would have prevented unnecessary wastage of the time of the Court. 7. In case the learned Sessions Judge had issued notice the counsel for the accused would have pointed out to the Court that it had no jurisdiction to hear the matter. This would have prevented unnecessary wastage of the time of the Court. 7. In the present case, neither the Court had any jurisdiction nor did he follow the proper procedure and conviction of the accused under Section 457 is totally illegal. The same is accordingly set-aside. Bail bonds furnished by the accused are ordered to be discharged.