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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: SHANKAR AND ANOTHER

DATE OF JUDGMENT: 15/02/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1962 AIR 1154            1962 SCR  Supl. (3) 213

ACT: Power of Appellate Court-Conviction by Magistrate--Appeal to Sessions Court-If can direct commitment of accused--Code  of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b).

HEADNOTE: The respondents were convicted by a Magistrate under s.  326 Indian  Penal  Code.   They appealed to  the  Court  of  the Sessions judge who set aside the conviction and directed the case  to be committed to the Court of Session.  On  revision the High Court set aside the order holding that the Sessions judge  had,  in an appeal against conviction,  no  power  to direct commitment to the Court of Session. Held,  that  the  words of s. 423 (1) (b)  of  the  Code  of Criminal  Procedure clearly empowered an appellate court  to order  commitment  for trial to the court of  Session.   The power  was  not limited to cases exclusively  triable  by  a court of Session. Queen Empress v. Abdul Rahiman, (1891) I. L. R. 16 Bom.  580 ; Queen Empress v. Maula Baksh, ( 1893) 1. L. R. 15 All. 205 and  Satish Ohander Das Bose v. Queen Empress, (1899) 1.  L. R. 27 Cal. 172, approved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Cr.  A. No. 206/1960. Appeal  by special leave from the judgment and  order  dated September  11,  1959, of the Allahabad High  Court  (Lucknow Bench) at Lucknow in Criminal Revision No. 179 of 1959. G. C. Mathur and C. P. Lal, for the appellant. The respondent did not appear. 1962.  February 15.  The Judgment of the Court was delivered by KAPUR,  J.-In this appeal against the judgment and order  of the High Court Of Allahabad, the 214 question  of  the  interpretation of  s.  423(1)(b)  of  the Criminal Procedure Code arises. The  case  of the prosecution was  that  respondent  Shankar wanted  to have illicit intimacy with Mst.  Mithana who  was

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not agreeable to his advances.  In order to take his revenge he  out  off her nose on January 28, 1959.   The  allegation against  the other respondent Goberdhan was that  he  helped Shanker in felling her down and caught her while Shanker out off her nose.  Both the respondents were tried under s.  326 read with s. 34 of the Indian Penal Code and the  Magistrate Ist  class found them guilty and sentenced them to  rigorous imprisonment  for  18  months each.   An  appeal  was  taken against  this order to the Sessions Judge, Sitapur,  who  on June  12,  1959’  set  aside the  order  of  conviction  and directed  the case to be committed to the Court of  Session. On  July 15, 1959, the Magistrate committed the  respondents to  the court of Session to stand their trial under  s.  326 read  with s. 34 of the Indian Penal Code.  A  revision  was taken  to the High Court against the order of  the  Sessions Judge. The  High Court held that the crime was not only brutal  but most  cowardly and that the offence was of a  grave  nature; that  the Magistrate was wrong in assuming  Jurisdiction  in such  a  case  and that the cutting of a  woman’s  nose  was treated as a trivial matter by the Magistrate.  The  learned Judge,  however,  was of the opinion that  a  Session  Judge bearing an appeal against conviction had no power to  direct commitment  to the court of Session; all that he-  could  do was to recommend enhancement of the sentence but it was  not worthwhile  enhancing the sentence because  the  enhancement could  only  be from 18 months to two years.’  He  therefore allowed the revision and set aside the order of the Sessions Judge  and  directed that the appeal be reheard  on  merits. Against  this  order the State has come in  appeal  to  this Court by  215 Special  Leave.  It may be mentioned that on an  application made  to the learned Judge under s. 561A Criminal  Procedure Code, the learned Judge, after referring to several  decided cases, was still of the opinion that his previous order  was correct  and  he declined to give a certificate  under  Art. 134(1)  (c)  and  the State has come in  appeal  by  Special Leave.   It is not necessary to decide the question  whether the  application  under  s.561 A was  entertainable  in  the circumstances of the case. Section  423 of the Criminal Procedure Code deals  with  the power of the Appellate Court in disposing of appeals against convictions.   The  relevant  portion  of  the  section   is contained in cl.(b) of sub-s.(1) of that section which is as follows:-               S."423 (1) The Appellate Court shall then send               for the record of the case, if such record  is               riot  already in Court.  After  perusing  such               record  and  hearing  the  appellant  or   his               pleader,   if  he  appears  and   the   Public               Prosecutor  if he appears, and, in case of  an               appeal under section 411A, sub-section (2). or               section  417 the accused, if he  appears,  the               Court  may, if it considers that there  is  no               sufficient ground for interfering, dismiss the               appeal, or may-               (a).......................................................               (b)   in  an  appeal from  a  conviction,  (1)               reverse  the finding and sentence, and  acquit               or  discharge the accused, or order him to  be               retried  by a Court of competent  jurisdiction               subordinate   to  such  Appellate   Court   or               committed for trial, or (2) alter the finding,               maintaining the sentence’ or, with or  without

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             altering  the ’ finding, reduce the  sentence,               or,  (3)  with or without such  reduction  and               with or without               216               altering the finding, alter the nature of  the               sentence.,  but, subject to the provisions  of               section  106,  subsection (3), riot so  as  to               enhance the same". The Code expressly gives the power to the Appellate Court to dismiss  the appeal, to acquit or discharge the  accused  or order  him to be retried or committed for trial.   Therefore the  section  does  empower the  Appellate  Court  to  order commitment for trial to the Court of Session.  The Courts in India   have  almost  unanimously  held  that  to   be   the interpretation  of the section.  In Queen Empress  V.  Abdul Rahiman  (1) where the circumstances were almost similar  as the  one  in the present case, it was hold  that  s.  423(b) which  is  the  corresponding section of the  Code  of  1882 empowered  an Appellate Court to order an accused person  to be  committed  for  trial.  That was also the  view  of  the Allahabad High Court in Queen Empress v. Maula Baksh.(2)  In an  earlier case Queen Empress v. Sukha(3),  Allahabad  High Court held that under s. 423 of the Code a commitment  could be ordered only When an offence was exclusively triable by a court  of  Session.  That view was overruled  in  the  later Allahabad  case Queen Empress v. Maula Baksh(2) and was  not accepted  in  the  Bombay  case above  quoted.   It  is  not necessary to refer to cases decided by other Courts where it has  been held that the power to order commitment  under  s. 423(1)  (b) is not limited to cases exclusively  triable  by the  court of Session.  In Satish Chander Das Bose v.  Queen Empress(1)  and other cases of the High Court  of  Allahabad the earlier view in Sukha’s case was not accepted. In our opinion the, words of s. 423 (1) (b) of the Code  are quite clear and the power of the (1)  (1891) 1. L. R. 16.  Bom. 580. (3)  (1885) 1. L. R. 8. All. 14. (2)  [1893] 1. L. R. 15 All. 205. (4)  (1899) I.L.R. 27 Cal. 172.                             217 Appellat  Court  to  commit is not  circumscribed  to  oases exclusively  triable  by a court of, Session  and  the  High Court was in error in taking a contrary view-. We therefore allow this appeal, set aside the order, of  the High Court and restore that of the Sessions Judge. Appeal allowed.