Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 219 (CHH)

Gorakhnath Nai v. State of Chhattisgarh

2014-06-16

SANJAY K.AGRAWAL

body2014
ORDER 1. The short question that falls for consideration in this revision is whether an application for revision filed by convicted applicant under Section 397/401 of the Cr.P.C. finally abates on his death pending hearing. 2. Impugning the legality and correctness of judgment dated 18/10/2002 passed by Additional Sessions Judge, Durg in Criminal Appeal No. 293/2002, affirming the order dated 26/08/2002 passed by Chief Judicial Magistrate, Durg in Criminal Case No. 2396/2002, by which, the Chief Judicial Magistrate recorded conviction for offence punishable under Section 34(2) of the Chhattisgarh Excise Act, 1915 (hereinafter called as ‘the Act, 1915’) and awarded sentence to undergo rigorous imprisonment for one year and fine sentence of Rs.25,000/-, with default sentence of simple imprisonment for three months, the instant criminal revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. 3. The core facts leading to filing of this revision application are as under:- 3.1 On 02/05/2002, 310 Pauwa (more than 50 bulk liters) of foreign liquor was seized from the possession of the applicant leading to recording First Information Report (FIR, Exhibit-P/5) and making a Panchanama (Exhibit-P/1). The Investigating Officer seized the aforesaid liquor vide seizure memo (Exhibit-P/3), which was duly sealed and after making spot map (Exhibit-P/4), the property was deposited in the concerned Police Station (Exhibit-P/6), which was duly identified by the Excise Sub-Inspector vide Exhibit-P/7. Thereafter, the charge-sheet was filed in the jurisdictional criminal Court, in which, charges under Section 34(2) of the Act, 1915 was framed against the applicant. 3.2 Applicant/accused abjured his guilt and entered into defence. In order to bring home the offence during the course of examination, the prosecution exhibited seven documents (Exhibits- P/1 to P/7) and examined five witnesses, whereas, the defence neither examined any witness nor exhibited any document. 3.3 Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called as ‘Cr.P.C.’). 3.4 Upon appreciation of oral and documentary evidence available on record, the learned Chief Judicial Magistrate by its judgment dated 26/08/2002 held the applicant guilty for the offence punishable under Section 34(2) of the Act, 1915 and sentenced to undergo rigorous imprisonment for one year and fine sentence of Rs.25,000/-, with default sentence of simple imprisonment for three months. 3.4 Upon appreciation of oral and documentary evidence available on record, the learned Chief Judicial Magistrate by its judgment dated 26/08/2002 held the applicant guilty for the offence punishable under Section 34(2) of the Act, 1915 and sentenced to undergo rigorous imprisonment for one year and fine sentence of Rs.25,000/-, with default sentence of simple imprisonment for three months. 3.5 On appeal preferred by the applicant under Section 374 of the Cr.P.C., the Additional Sessions Judge, Durg, by its judgment dated 18/10/2002, maintained the conviction and sentence awarded to the applicant and dismissed the appeal and challenging the said judgment, instant revision as stated has been filed. 4. Mr. Aman Kesharwani, learned counsel appearing for the applicant would submit that both the Courts below have committed manifest illegality in convicting the applicant for the offence punishable under Section 34(2) of the Act, 1915, as such, the prosecution has failed to establish the offence beyond all reasonable doubt and therefore, the impugned judgment deserves to be set-aside. 5. At the outset, Mr. Sudhir Bajpai, learned Deputy Government Advocate appearing for the State/non- applicant would submit that since the applicant has died during the pendency of the revision, as such, the criminal revision stand abated and deserves to be dismissed as abated. 6. While replying the objection with regard to maintainability of the criminal revision, Mr. Aman Kesharwani, learned counsel appearing for the applicant would submit that it is a case of composite jail sentence as well as fine sentence and therefore, the criminal revision will not abate and has to be heard on merits, as such, criminal revision deserves to be allowed. 7. I have heard learned counsel appearing for the parties and perused the record of the trial Court with utmost circumspection. 8. It is not in dispute that in the present case, the applicant stands convicted under Section 34(2) of the Act, 1915 and sentenced to undergo rigorous imprisonment for one year and fine sentence of Rs.25,000/-, with default sentence of simple imprisonment for three months. Thus, it is composite sentence awarded by the Chief Judicial Magistrate, Durg, which has been duly affirmed by the Appellate Court in appeal and thereafter, the revision was filed before this Court on 15/11/2002. According to the report submitted to this Court, the applicant has died on 17/11/2009. 9. Thus, it is composite sentence awarded by the Chief Judicial Magistrate, Durg, which has been duly affirmed by the Appellate Court in appeal and thereafter, the revision was filed before this Court on 15/11/2002. According to the report submitted to this Court, the applicant has died on 17/11/2009. 9. In the Code of Criminal Procedure, 1973 there is no provision for abatement of the revision except under Section 394 dealing with the abatement of the appeals. Section 394(1) & (2) of the Cr.P.C. reads as under:- “394. Abatement of appeals.-(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant; Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.-In this Section, “near relative” means a parent, spouse, lineal, descendant, brother or sister.” 10. From the careful perusal of Section 394(1) & (2) of Cr.P.C. it would manifest that this Section only applies to the appeals, and lays down that an appeal under Section 377 of the Cr.P.C., which is an appeal by the State Government against sentence and appeal against the acquittal and the other appeals under Chapter XXIX of the Cr.P.C. shall finally abate upon the death of the appellant/accused. The appeal against the sentence of fine shall not abate. An application for leave to continue the appeal can be filed by the near relative within thirty days of the death of appellant and if leave is granted, appeal shall not abate. Thus provision relating to abatement under Section 394(1) & (2) of the Cr.P.C. would only be applicable to the appeals. 11. Section 401 of the Cr.P.C. defines the power of the High Court to entertain revision. Section 401(1) of the Cr.P.C. makes only Sections 386, 389, 390 & 391, which is applicable to the Court of Appeal is also applicable in the revisions. Section 401(1) of the Cr.P.C. reads as under:- “401. 11. Section 401 of the Cr.P.C. defines the power of the High Court to entertain revision. Section 401(1) of the Cr.P.C. makes only Sections 386, 389, 390 & 391, which is applicable to the Court of Appeal is also applicable in the revisions. Section 401(1) of the Cr.P.C. reads as under:- “401. High Court’s powers of revision.-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.” 12. From the perusal of the afore-quoted provision would show that the legislature has consciously omitted the applicability of Section 394(1) & (2) of the Cr.P.C. to the revision application filed under Section 401 of Cr.P.C. The revision of convicted applicant shall not abate upon the death of convicted person, as appeal of convicted person except an appeal from sentence of fine would abate on the death of convicted person by virtue of Section 394(2) of the Cr.P.C. In absence of statutory provision in the Code of Criminal Procedure, providing abatement of revision, the revision will not finally abate on the death of convicted applicant. 13. The constitution Bench of the Supreme Court in case of Pranab Kumar Mitra v. State of W.B. and another, AIR 1959 SC 144 has held that in absence of statutory provision in the Code of Criminal Procedure, the revision will not finally abate on the death of convicted applicant and the High Court has to power to determine the case even after death of the convicted person, as High Court while hearing Revision, discharges its statutory function of supervising administration of justice in criminal side and concluded as under:- “6. ……………The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. ……………The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under Section 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the consideration applying to abatement of an appeal, may not apply to the case of revisional applications.…………” 14. It has been further held by their Lordships’ that High Court has complete discretion to deal with a pending matter on the death of the convicted person in accordance with law as sentence of fine imposed upon the convicted person affects the property of deceased (convicted person) and concluded as under:- “7. …………It is not necessary to refer to those case specifically. In view of the fact that even in the absence of any statutory provisions, we have held, in agreement with the decision aforesaid of the Bombay High Court, that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative.……………” 15. Thereafter, in case of State of Kerala v. Narayani Amma Kamla Devi and others, AIR 1962 SC 1530 , the Hon’ble Supreme Court noticing distinction between the provision of Code of Criminal Procedure providing for abatement of appeal on the death of convicted person held that revision application can be entertained after the death of convicted applicant and states as under:- “3a. The Criminal Procedure Code gives a right of appeal to the convicted person in certain cases. If, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for 'in Sec. 431 of the Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. The High Court or the Court of Sessions cannot therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine.' 4. As regards the revisional jurisdiction of the High Court there is no provision similar to Sec. 431. Nor is there any provision whether a revisional application can be or cannot be made in respect of an order of conviction when the convicted person is dead.-We cannot but notice the important distinction that while the appellate jurisdiction can be exercised only after an appeal is filed by the convicted person or against an order of acquittal under Sec. 411 or Sec. 417, there is no such limitation on the Court's revisional jurisdiction. 6. It appears to us therefore that in a proper case the High Court can exercise its power of revision of an order made against an accused person even after his death.” 16. Thus, upon the consideration of the provision contained in the Code of Criminal Procedure relating to abatement and discussion made herein-above and following the decision of Supreme Court in afore-noted cases, it is held that upon the death of convicted person particularly suffering sentence of fine, during the pendency of revision, the said revision application will not finally abate and correctness, propriety/legality of the sentence of fine is required to be considered by examining the order of conviction on merits. Thus objection of State, that revision stands abated on the death of convicted applicant is overruled accordingly. 17. Thus objection of State, that revision stands abated on the death of convicted applicant is overruled accordingly. 17. The determination of question holding that revision is not finally abate brings me to consider revision on its merits, as fine sentence of Rs.25,000/-has been imposed upon by the convicted applicant, that has to be realized from the estate of deceased-applicant, therefore, I proceed to consider the revision on merits, even in absence of legal representative, in view of the aforesaid finding and relying on paragraph-6 of Pranab Kumar Mitra (supra), the revision will not finally abate on the death of convicted applicant. 18. Having heard learned counsel for the parties on merits of the case and perusal of the record, it would appear that seized foreign liquor was sent to the Excise Sub-Inspector for examination and upon Smell test and Litmus test vide Exhibit P-7, he has confirmed that the seized liquor was foreign liquor i.e. Whiskey. The said report given by Excise Sub- Inspector was not challenged during the course of examination or even the course of trial. The High Court of Madhya Pradesh in case of Sukhlal Ramlal Gond Vs. State of Madhya Pradesh, 1995 M.P.L.J.266, has held that Smell test and Litmus test applied by the Excise Sub Inspector is a valid method of identifying the liquor. Thus, the seized liquor was intoxicant within the meaning of Section 11 (a) of the Act, 1915. Thus both the Courts below have concurrently held that the said foreign liquor (Whiskey) was seized from the possession of the applicant and seizure has been proved is neither shown to be perverse nor contrary to the record. It is well settled that concurrent finding of two Courts below is not to be interfered with while exercising the revisional jurisdiction. 19. In case of State of Haryana v. Rajmal and another, (2011) 14 SCC 326 , the Supreme Court in its report provides as under:- “11. In State of A.P. v. Pituhuk Sreeinvanasa Rao Manu/SC/0923/2000: (2000) 9 SCC 537 this Court held that the exercise of the revisional jurisdiction of the High Court in upsetting concurrent finding of the facts cannot be accepted when it was without any reference, to the evidence on record or to the finding entered by the trial Court and appellate Court regarding the evidence in view of the fact that revisional jurisdiction is basically supervisory in nature. 12. 12. It has been also held by this Court in Amar Chand Agarwala v. Shanti Bose and Anr. Manu/SC/0074/1972 : AIR 1973 SC 799 that the revisional jurisdiction of the High Court under Section 439 Code of Criminal Procedure, is to be exercised, only in an exceptional case, when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting in a flagrant miscarriage of justice.” 20. Thus the conviction recorded under Section 34(2) of the Act, 1915 by two Courts below are neither perverse nor contrary to the evidence available on record. 21. The determination of issue with regard to conviction brings me to consider the reasonability of the sentence awarded by the Trial Magistrate as affirmed by the Appellate Court, since the convicted applicant has died, question of serving out of jail sentence does not arise. 22. Now, the question with regard to the reasonability of fine sentence of Rs.25,000/-awarded by the Trial Magistrate is concerned, Section 34(2) of the Excise Act provides that if the quantity of intoxicant being liquor exceeds 25 Bulk liters, he shall be punishable with imprisonment for a term which shall not be less than one year and/with fine which shall not be less than Rs.25,000/-. In the instant case, the Trial Magistrate has sentenced the applicant to undergo rigorous imprisonment for one year and fine sentence of Rs.25,000/-with default sentence of simple imprisonment for three months, which has been affirmed by the Appellate Court. Thus, I do not find any illegality in order awarding sentence of fine. 23. As a fallout and consequence of aforesaid discussion, criminal revision deserves to be and is accordingly dismissed.