PUBLIC PROSECUTOR Vs. K SANKUNNY
HIGH COURT OF MADRAS
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(1.) THE respondents in the first six of these seven appeals live in Alleppey or Quilon, two towns in Travancore. During the financial years 1945-46, 1946-47 and 1947-48 they sold various quantities of goods to firms in Fort Cochin which is a part of the Madras State. In 1948 they were assessed to sales tax in respect of their transactions during these 3 years. As they failed to pay the tax levied on them, they were prosecuted under Section 15(b) of the Madras General Sales Tax Act, 1939, before the Sub-Divisional Magistrate, Fort Cochin, who convicted them. On appeal the Session Judge, Kozhikode, acquitted all of them except one, viz., the appellant in C.A. No. 40 of 1951 on his file (corresponding to Crl. R.C. Nos. 778 and 655 of 1952 in this Court) whose conviction was confirmed in respect of the tax due from him for the period from 1st January, 1948, to 31st March, 1948, and the sentence being however reduced. THE State has appealed against the acquittals.
(2.) THE respondent in Criminal Appeal No. 532 of 1952 was prosecuted for offences under Sections 235 and 243, Indian Penal Code. THE First Assistant Sessions Judge, Madurai, acquitted him, and, from that acquittal also, the State has preferred an appeal.
Mr. Vasantha Pai, the learned counsel for the respondents in Criminal Appeals Nos. 387 to 392 of 1952 and Mr. Veeraswami for the respondent in Criminal Appeal No. 532 of 1952 have taken the preliminary objection that these appeals by the State are incompetent because, according to them, Section 417, Criminal Procedure Code, contravenes Article 14 of the Constitution and is therefore ultra vires. This is how Mr. Pai developed his thesis. In every criminal trial the accused and the prosecutor are in the position of litigants before the Court, and, the circumstance that the prosecutor is a State makes no difference to its legal status before the Court. The judgment, whether of acquittal or conviction terminates the trials, and from the judgment, the parties must have equal rights of appeal - the accused if he is convicted and the State if the accused is acquitted. But, the rights of appeal which have been actually conferred by the Criminal Procedure Code are very unequal in their nature. The State has been singled out for favourable and discriminatory treatment by its being given the right to appeal under Section 417, Criminal Procedure Code, direct to the High Court whereas an accused person has to appeal to the District Magistrate or the Sub-Divisional Magistrate if he has been convicted by a Magistrate of the second or third class and to the Sessions Judge if he has been convicted by a Magistrate of the first class or in certain cases by an Assistant Sessions Judge. Besides, the state has been given a right to appeal an appellate order of acquittal also while an accused person is confined to a revision. Nor does the discrimination stop here. There is a further discrimination made by the Code between different classes of prosecutors or complaints. When a complaint brought by a private individual ends in an acquittal he is given no right of appeal, but the State is, All this amounts to "class discrimination, " the class in whose favour the discrimination is made being the State.Anticipating the argument that even assuming that there is discrimination, there is a reasonable basis it, Mr. Pai stated that the Criminal Procedure Code is an enactment of the 19th century when this country was under an alien monarchy and that therefore the plea of reasonable classification is not open to the State because the idea of classification was then unknown to or at least unrecognised in Indian Statutes. Again, even if we can project into the past the ideas of to-day, what was a reasonable classification in 1898 cannot be treated as a reasonable classification to-day. In 1898, a right was given to the State to appeal against acquittals in order to enable the foreign authority to more effectively maintain its hold on the country and to protect foreign interests. Mr. Pai went on to say that the classification, assuming there was a classification, is arbitrary and unreasonable. He wound up by saying that the discrimination he commented on, arises on the terms of the section itself and that it contravenes the explicit direction in the Constitution that there should be equality before the law.
(3.) TO support his contentions he referred to the decision of the Supreme court in State of West Bengal v. A. A. Sarkar. The facts there were these : The State of West Bengal passed an Act "to provide for the speedier trial of certain offences." Section 3 of the Act empowered the State by notification in the official Gazette to constitute special Courts, and Section 4 empowered the Government to appoint Special Judges to preside over such Courts. Section 5(1) ran thus :-
"A special Court shall try such offences or classes of offences or cases or classes of cases as the State Government may by general or special order in writing, direct.";
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