STATE OF GUJARAT Vs. KOLI CHHAGAN JERAM
LAWS(GJH)-1966-10-1
HIGH COURT OF GUJARAT
Decided on October 06,1966

STATE OF GUJARAT Appellant
VERSUS
KOLI CHHAGAN JERAM Respondents

JUDGEMENT

A.D.DESAI, B.J.DIVAN - (1.) In the present case the two accused persons were put up for trial on charges under sec. 302 I.P.C. and in the alternative under sec. 302 read with sec. 34 I. P. C. and also under sec. 37(1) of the Bombay Police Act read with sec. 135 of the said Act. The learned trial Judge came to the conclusion that the accused persons were not guilty of the offences punishable under sec. 302 or in the alternative under sec. 302 read with sec. 34 I. P. C. and also that the accused persons were not guilty of the offence punishable under sec. 37(1) read with sec. 135 of the Bombay Police Act. He however came to the conclusion that both the accused were guilty of the offence punishable under sec. 324 I. P. C. and sentenced each of the two accused to suffer R I. for three years and a fine of Rs. 100 for each of the offences punishable under sec. 324 I. P.C. The State of Gujarat appealed to the High Court against the orders of acquittal passed by the learned trial Judge under sec. 302 I. P. C.
(2.) His Lordship after discussing the evidence came to the conclusion that from the materials on record it clearly emerges that the two accused acted in the exercise of the right of private defence and would not be guilty in any manner for causing injuries to the three deceased. Under these circumstances it is clear that the appeal by the State of Gujarat against the order of acquittal acquitting the two accused of the offence punishable under sec. 302 I. P. C. in the alternative under sec. 302 read with sec. 34 I.P.C. and also under sec. 37 read with sec. 135 of the Bombay Police Act must fail. As the present accused did not appeal against the order of conviction and sentence passed by the Sessions Judge under sec. 324 I. P. C. a question arose whether the High Court is entitled to set aside the conviction and sentence passed against them. DIVAN J. The reasoning which has appealed to U5 while disposing of this appeal would necessarily lead to the conclusion that the learned Sessions Judge with respect to him was in error when he convicted both the accused of the offences punishable under sec. 324 I.P.C. and sentenced them to three years R.I. and a fine of Rs. 100/in respect of the three different offences connected with the deaths of Bachu Batuk and Kanji; and once we hold that the right of private defence extended to the causing of death it would necessarily follow that in the light of the Chapter of General Exceptions neither of the two accused would be guilty of any offence whatsoever. The question then arises as to what should be done in connection with the order of conviction and sentence passed by the learned Sessions Judge under sec. 324 I.P.C. It is true that there has been no appeal of the two accused against this order of conviction and sentence but we have to consider whether we should exercise the powers of superintendence vested in this Court under Article 227 of the Constitution or the powers under sec. 439 Cr. P. C. and in the exercise of those powers set aside the orders of conviction and sentence passed by the learned Sessions Judge under sec. 324 I. P. C. Mr. K. M. Chhaya the learned Honorary Assistant Government Pleader has asked for time to consider the position and therefore we adjourn this matter for a week in order to enable us to pass the final order after hearing him regarding this point.
(3.) Further arguments were heard today (6-10-1966) in connection with the power of the High Court under Art. 227 of the Constitution or under sec. 439 Cr. P. C. to act in the present matter. It is true that under sec. 439(5) Cr. P. C. when an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore the power under sec. 439 Cr.P.C. only operates to prevent a Revision Application being entertained at the instance of the accused persons they not having appealed against the orders of conviction and sentence under sec. 324 I P.C. But the point is whether the powers under sec. 439(1) Cr.P.C. are in any way fettered by the bar created under sec. 439(5) Cr.P.C.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.