RAMCHANDRA AGARWAL AND ORS. Vs. STATE
LAWS(ORI)-1973-7-23
HIGH COURT OF ORISSA
Decided on July 25,1973

Ramchandra Agarwal And Ors. Appellant
VERSUS
STATE Respondents

JUDGEMENT

K.B. Panda, J. - (1.) THIS is a batch of eight criminal misc. petitions by different Petitioners under Sections 561 -A and 562 of the Code of Criminal Procedure for a review of the orders of this Court passed in Criminal References Nos. 13 and 15 to 21 of 1972 on 7 -5 -1973 enhancing their sentence of, fine of Rs. 2,000/ - to one of R.I. for six months arising in the following circumstances.
(2.) ON 1 -2 -1967, at the instance of the Vigilance Police, some business premises of Malgodown, Cuttack were raided and certain documents and Khatas seized, which on examination revealed transactions of forward contract in ground -nut oil prohibited under law. Consequently nine Criminal cases were started against these firms and their partners or proprietors under Section 20(e) of the Forward Contracts (Regulation) Act, 1952 (Act 74 of 1952) (hereinafter referred to as the Act). All the cases were tried and disposed of by the Additional District Magistrate (Judl.), Cuttack. Before him, in some cases, the managing partners and in some cases the managers or proprietors took the responsibility of having transacted the business (three instances of Forward Contract in Ground -nut oil) and therefore the Additional District Magistrate (Judl.) exonerated others and found the firms and the person in management of the business to be guilty and inflicted a consolidated fine of Rs. 2, 000/ - with a defaulting sentence of simple imprisonment for three months. On appeal the Sessions Judge while dismissing the same recommended for enhancement of sentence in as much as the minimum sentence awardable under the Act, for each offence, was rupees one thousand. All the convicted persons and their respective firms filed revisions against their convictions before this Court excepting one. But, all the same, there were nine references made by the Sessions Judge for passing "appropriate sentence". This Court, while dismissing the revisions enhanced the sentence in the reference cases, so far as the firms are concerned, to a sum of Rs. 3, 900/ - at the rate of rupees one thousand and three hundred for each offence and so far as the managers or managing partners are concerned, to a sentence of six months ' rigorous imprisonment, -that is, two months for each deal. The party that did not prefer any revision was only sentenced to pay a fine of Rs. 3, 900/ - in the concerned criminal reference No. 14 of 1972 but no substantive imprisonment was awarded. The firms have paid up their fines. But persons who were awarded substantive imprisonment, as stated above, have filed these criminal miscellaneous petitions for a review of the order, mainly on three grounds: (1) the provisions of the Probation of Offenders Act have not been considered by this Court before awarding the sentence; (2) the provisions of Section 562 of the Code of Criminal Procedure which provide "to release certain convicted offenders on probation instead of sentencing to imprisonment" have been overlooked; and (3) the Petitioners were given notice of enhancement in the reference cases (not in the criminal revisions) in respect of fines imposed, basing on the recommendation of the learned Sessions Judge to pass an appropriate sentence as the trying Court had erred in not inflicting the minimum sentence provided under the Act. Thus there was no indication, even remotely, in those notices that there would be substantive imprisonment, and so the order is illegal contrary as it is to the provisions of Section 439(2) and (6) of the Code of Criminal Procedure.
(3.) THE petitions raise the following points: (1) Has the Court jurisdiction to entertain a petition under Sections 561 -A of the Code of Criminal Procedure to review its order and if so, is it an unlimited one so as to cover cases like the present one? (2) Are the Petitioners entitled to the benefit of the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as the Offenders Act)? (3) Are the provisions of Section 562, Code of Criminal Procedure attracted in this case? and (4) Are the notices issued to the Petitioner in the reference cases for enhancement of sentence were "limited notices" for enhancement of the sentence of fine only and not a 'comprehensive notices ' of enhancement of sentence which would include imposition of substantive imprisonment also? So far as the question of jurisdiction is concerned, it was contended by Mr. B.M. Patnaik, learned Counsel appearing for the Petitioners that the Court has inherent jurisdiction and wide powers under Section 561 -A of the Code of Criminal Procedure to make such orders as may be necessary to prevent "abuse of any process of the Court or to otherwise secure the ends of justice" and thus the power is untrammelled. Mr. P. Parida learned Counsel appearing on behalf of the State conceded to the extent that the Court has inherent powers to revoke, vary or alter its order but it is circumscribed to circumstances when the said order is (sic) facie without jurisdiction or illegal. According to Mr. Parida, the impugned orders dated 7 -5 -1973 are neither without jurisdiction nor illegal and therefore there is no scope for interference. The question of jurisdiction, it seems, is no longer res integra. There is a plethora of decision on the point. That apart Section 561 -A, Code of Criminal Procedure which in unequivocal terms confers inherent powers on the High Court speaks of the situations when it can be invoked. The third situation mentioned in it i.e. "or otherwise to secure the ends of justice" is quite broad and elastic indeed. It would be a futile endeavour to lay down an exhaustive list of such situations. There are no two opinions, however, that the Court can go into facts or points of law, which were not considered for any reason and if considered at least would have tilted the issue to a great measure. I can do nothing better than close this issue referring to a Bench decision of this Court on the point : On an overall examination of the statutory provisions, the High Court is unable to find any fetter whatsoever, express or implied, which would rule out the applicability of the inherent power of the High Court under Section 561 -A in respect of an order purporting to be based under Section 439, Code of Criminal Procedure . Therefore, it will not be correct to say that the inherent power which the Court possess to review a judgment made in the exercise of its revisional jurisdiction either relates to a matter covered by any specific provision of the Code or that its exercise is in any way incompatible with any express statutory provision. See Simadri Nanda v. the State, 36 (970) C.L.T. 1176. On the second point it was contended by Mr. Patnaik that the Probation of Offenders Act is a salutary and progressive legislation the provisions where of confer certain benefits on convicted persons. But the same was not taken into consideration while disposing of the revisions and references. For this he relied on the case of Rattan. Lal v. the State of Punjab : A.I.R 1965 S.C. 444 wherein it is observed that "the Act is a mile -stone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of Criminal Law is more to reform the individual offender than to punish him". It was held therein adopting the rule of beneficial construction that the Appellate Court in appeal or the High Court in revision could, in exercise of power conferred under Section 11 of the Offenders Act, make an order under Section 6(1) thereof, as the Appellate Court and the High Court, agreeing with the Magistrate, found the accused guilty of the offences for which he was charged. In that case, the Supreme Court remanded the matter to the High Court to make an order after complying with Section 6(1) and did not itself exercise powers under Section 11. This decision follows the earlier decision in Ramji Hissar v. The State of Bihar : : A.I.R. 1963 S.C. 1088. The case, in Simadri Nanda v. the State, 36 (970) C.L.T. 1176 referred to in the previous para which runs parallel to this is also an authority on the point. Mr. Parida pointed out a distinction that in those cases the Supreme Court or the High Court was considering a case under Section 6 of the Offenders Act which is mandatory. But in the instant cases, none of the Petitioners is below 21 years of age so as to attract the provisions of Section 6 of the Probation of Offenders Act. According to him, and rightly so the powers of the Court under Sections 3 and 4 under which the case of the Petitioners come, are discretionary. Mr. Patnaik also does not dispute that proposition of law but his contention is that exercising a mandatory or a discretionary provision of the law, on principle, does not make any difference if the discretion so conferred is not exercised at all. It is one thing, according to him, that discretion has been exercised in a particular way and another thing where there is total absence of exercise of discretion. He conceded that the party cannot legitimately make a grievance if the Court uses its discretion in any manner it likes but there must be evidence of the fact that the Court has, in fact, applied its discretion. In the instant cases, apparently the provisions of the Offenders Act have not been considered and in that way the impugned order needs reconsideration which justifies the Court assuming jurisdiction to look into the matter afresh.;


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