Decided on April 13,1983

Raharman Rai Appellant
Harka Bahadur Respondents

Cited Judgements :-



A.M.BHATTACHARJEE,J. - (1.)"In law, in life," observed Krishna Tyer, J., in Raj Kapoor v. State1 "a short -cut may prove a wrong cut" and the case at hand appears to be a clear demonstration thereof. The learned Magistrate, on receipt of a complaint and on the basis of the complainant's statement on oath before him and the report of enquiry made by the police as per his order, issued summons under section 321, Indian Penal Code against the four accused persons and on their appearance in obedience to the summons, explained the substance of the accusations to them under section 242 of the Code of Criminal Procedure, to which all of them pleaded not guilty. That being the position, the learned Magistrate ought to have thereafter proceeded with the trial after taking all such evidence as the complainant could produce and then after hearing the accused and taking all such evidence as they could produce, in accordance with section 244 and the succeeding sections of Chapter XX, Code of Criminal Procedure, 1898, that being the Code still operating in Sikkim. But instead of taking such a course, the learned Magistrate skipped over an those provisions and straightaway jumped too soon to section 562 of the Code and released the accused persons after admonition. The learned Magistrate appears to have been morally convinced that the case was "of a petty nature" justifying the release of the accused after admonition, without realizing the moral conviction, by itself, has no value in a Court of law and a legal conviction alone can justify a curial order. The case at hand, therefore, is vitiated with patently illegal exercise of jurisdiction and demands intervention by this Court for setting it right. But how to intervene and which jurisdiction of this Court to be invoked for such intervention, the appellate or the revisional, is the main question that has arisen in this -case.
(2.)AN order under section 562, though not a sentence, is nevertheless a conviction, which alone can be followed by a release after admonition The marginal note to sub -section (l -A) of section 562 is "conviction and release with admonition" and as the beginning of the sub section clearly declares the provisions thereof can be invoked only "in any case in which a person is convicted." They can be and, in fact, there had been a good deal of debate as to whether an appeal would lie from an order under section 562 where under an accused is convicted without a sentence of punishment and is released on probation of good conduct under sub -section (1) or released with admonition under sub -section (1A). It was debated was early as in 1904 in Mi Shwe Nyun v. King Emperor2 in the Court of the Judicial Commissioner. Upper Burma and in Emperor v. Manohar Das3 in the Chief Court of Punjab and both the decisions held in favour of appeal In Hayata v. Emperor4, Shadi Lal, J (as his Lordship then was) followed Emperor v. Manohar Das (supra) and declared that "there is no law which precluded an appeal from a conviction without sentence."
In fact there appears to be good number of authorities the weight of which is overwhelmingly in favour of the view that an appeal is maintainable against an order passed under section 562 releasing an accused, on conviction, on probation or with admonition, without improving any sentence and most of the important decisions on the point have been referred to in Sheo Narain v. State.5 where Gurtu, J. of the Allahabad High Court, on a difference of opinion between Mulla and Tandon JJ., held in favour of maintainability of an appeal against an order passed under section 562. A different note was, however struck in Hari Charan v. State.6 where Chandiramani, J., of the same High Court, sitting singly and without any reference to any of the earlier case -laws on the point, including one of his own High Court in Emperor v. Hira Lal,7 held that no such appeal could lie under any provision of the Code of Criminal Procedure. Such a different note also appears to have been struck by a Division Bench of the Orissa High Court in K. Achi v. K. Madhusudhan,8 where, expressly dissenting from the single Judge decision of the Madras High Court in Re Abdul Kareem,9 to the effect that an appeal against an order under section 562 is maintainable, it was held by the Orissa Division Bench that no appeal would lie from an order of conviction unaccompanied by any sentence under section 562. It is really unfortunate that the attention of neither the learned Single Judge in the Madras decision, nor of the Division Bench in the Orissa decision, was drawn to the long catena of cases on this point and one would wonder as to how in the Madras decision the point could be regarded as "of first impression" by the learned single Judge while the same was, so far as that High Court was concerned, concluded by a Division Bench of that Court in Mayandi Nadar v. Palo Kuduban,10 where the Division Bench referred to with approval to several authorities of the Allahabad the Calcutta, the Bombay and other High Courts holding in favour of maintainability of such appeals.

(3.)AS already noted, the order impugned, being passed under section 562, is obviously an order of conviction, though followed only by an order of release after admonition and not by any sentence. Section 408 of the Code clearly provides for appeal to the Court of Session from all orders of conviction passed by any Magistrate. The expression used in the body of the section 408 is "conviction" only without any reference to any sentence, and, therefore, if an order under section 562, though releasing the accused after admonition, is nevertheless an order of conviction, an appeal would lie there from under section 408, unless such a right is taken away by any other section. Section 412, which takes away the light of appeal which would have been otherwise available, except as to the extent on legality of the sentence, being applicable to cases of conviction on plea of guilty does not require to be considered here, as the impugned order was not based on any plea of guilty. Section 413 is another section which takes away the right of appeal which would have been otherwise available, but the section operates against an order of the Magistrate only when he "passes a sentence of fine not exceeding fifty rupees only." In the case at hand, the impugned order being an order of release afteradm0nition and no sentence having been imposed at all, whether of fine or otherwise, it is obviously not a case in which the Magistrate can be said to have passed" a sentence of fine not exceeding fifty rupees only" to attract the bar of section 413. Section 408 having expressly granted right of appeal against all convictions made by the Magistrate, such right shall exist in all such cases, unless the right is expressly taken away by section 412 or section 413 or by any other provisions of the Code and Sections 412 and 413 not being ex facie applicable to the impugned order of conviction followed by an order of release after admonition under section 562(1 -A), and there being no other provisions affecting the right of appeal granted in such cases under section 408, the only possible and permissible conclusion would be that an appeal against such an order is not barred and is maintainable. It must not be forgotten that Criminal Procedure Code is a law prescribing procedure for deprivation of personal liberty and since in view of the Maneka mandate of the Supreme Court the procedure prescribed by such law, so order to survive the Constitutional scrutiny, must be "reasonable, right and just and fair", a construction enlarging the right of appeal against conviction must be preferred than to one restricting the abrogating such a right, because a right of appeal against conviction would obviously go a long way to enlarge and further the fundamental right to personal liberty. Following what has been stated by this Court in State, of Sikkim v. Futi Sherpani11, it may be stated that our laws of procedure should be construed, wherever that is reasonably possible, in favour of fuller and further right of hearing of the party, whose life, liberty or property is likely to be affected by the provisions of the relevant laws and that if a particular provision of law can be interpreted in two ways, one permitting and the other preventing further hearing, whether by way of appeal or otherwise, we must adopt the former and reject the latter and that this should be more so in respect of criminal laws and procedure which put in peril the fundamental right of a person to his personal liberty.

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