- (1.) ON trial by the learned Additional Sessions Judge, Bhilwara the accused-appellant Nanda and Chhittar has been convicted under section 307 of the I. P. C. The judgment convicting the accused, was pronounced on October 24, 1979 but on the application of the accused that he wants to lead evidence on the question of sentence, the case was adjourned to October 29, 1979. The accused did not lead any evidence and before a sentence could be passed preferred an appeal in this Court against his conviction under section 307 of the I. P. C.
(2.) THE question for consideration in this appeal is as to whether under section 374 Cr. P. C. (hereinafter referred to as the 'code") an appeal lies to this Court only against finding of guilt or an appeal will only lie when it is followed by some consequential order i. e. sentence or an order under the provisions of the Probation of Offenders Act, 1980 (for short "the Act") or under section 360 Cr. P. C. In other words, whether the term "convicted" or "conviction" in section 374 of the Code means only a finding of guilt or it means finding of guilt followed by sentence or an order as aforesaid. The term "conviction" and 'convicted" has not been defined any where in the Code. This term has been used in different sections of the Code. When a word or phrase is defined as having a particular meaning in the enactment, it is that meaning and that meaning alone which must be given to it, in interpreting a section of the Act, unless there is any thine repugnant in the context. The difficulty in interpreting a word arises if it is not defined and more so when it conveys more than one meaning. Chapter XVIII of the Code relates to trial before a court of Session. Under section 229, the accused can be 'convicted" on his plea of guilt. If the accused refuses to plead, or does not plead, or claims to be tried or is not "convicted" on his plea of guilt under section 229, then after trial if the accused is 'convicted" then unless the Judge proceeds in accordance with the provisions of section 360, he his to hear the accused on the question of sentence and only then pass sentence on him according to law. Similarly under Chapter XIX of the Code which deals with the trial of warrant cases by the Magistrate, under sec. 241 the accused can be 'convicted" on his plea of guilt if he pleads guilty and if he claims to be tried then at the conclusion of the trial if the court finds the accused guilty but does not proceed in accordance with the provision of section 325 or section 360 of the Code, then after hearing the accused on question of sentence the Magistrate can pass sentence upon him according to the law. In case of previous conviction only after he has "convicted" the accused then Magistrate can take evidence in respect of previous conviction. Under Chapter XX of the Code which deals with the trial of summons cases by the Magistrate the accused can be 'convicted" on his plea of guilt and when he is not so * convicted" then after trial it he finds the accused guilty and if he does not proceed in accordance with the provision of section 325 or 360, the Magistrate will pass a sentence on him according to law. In summary trials under Chapter XXI of the Code on conviction of an offence triable summarily, imprisonment not exceeding that prescribed in section 262 can be passed. Every judgment under section 354 of the Code has also to specify the offence (if any), of which and the sentence for the offence in which the accused is convicted and the punishment to which he is sentenced. An appeal is a creation of statute, Chapter XXIX of the Code deals with the appeals and as provided in section 372 no appeal shall lie from any judgment or order of a criminal court except as provided by the Code, or by any other law for the time being in force. As stated earlier, though section 354 deals with the language and contents of judgment, there is no section which defines an order. The contention of the learned Advocate for the appellant is that section 374 of the Code confers a right of appeal on a person "convicted" of an offence and "conviction" means "adjudication of guilt" and does not mean "adjudication of guilt coupled with sentence". It is, therefore, to be seen as to what the term of 'conviction' or "convicted" in sec. 374 of the Code conveys. It is for the court to interpret a particular word used in the statute and in doing so the court can take assistance to well-known and authoritative dictionaries. It is to be first seen as to whetherthe term "conviction" carries only one meaning or more than one. Black's Law Dictionary, 4th Edition at page 403, column 2, defines "convicted" and 'conviction* according to it in ordinary phrase, its meaning is the finding of a verdict that the accused is guilty. But, in legal parlance, it often denotes the final judgment of the court. Tindal C. J. in Burgess vs. Boatefeur observed "the word" 'convicted' or the 'conviction' is undoubtedly verbum acquivocum. It is some time used as meaning the verdict of jury and at other times, for the sentence of the court. " In, S. (an infant) vs. Manchester City Recorder (2), after considering the earlier authorities where the Lords had occasion to deal with the meaning of word "conviction", LORD REID observed ' much of the difficulty has arisen from the fact that "conviction" is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. " LORD MACDERMOTT has observed "i do not propose to enter on an exhaustive review of all cases cited in arguments a number of them have little bearing on the present issue. Some turn on whether the plea made should have been accepted as a plea of guilt or not guilty. The guilty but. . . . . . " cases; some depend on the meaning to be given to the ambiguous word "conviction"; some seem to touch on the exercise of the alleged discretion father than on its existence" Some relate to proceedings raising special issues because two courts rather then one were involved " Lord widgery referred to the observations of Salmon. J. in (1962) 3 Ail. E R. 924. " "once the magistrate has convicted or acquitted they are functous officio and cannot alter there decision. " Then he proceeded to observe "i think the learned Judge must here have been using the word "convicted" in its vidrr sense and as including not only the finding of guilt but the subsequent adjudication as to punishment. There is nothing in the context or in the case to suggest that he meant to a finding of guilt and nothing more" Lord Morns observed "the Words "convict" and "conviction" in the Act are not always used with the same meaning. If, however, the word "convict" in this sub-section is used in the sense of a finding guilt of fas opposed to a finding of guilt coupled with the making of some order) the question is. . . The learned Lord further observed "the word "conviction" may some times be used to denote merely a finding of guilt and some times to denote such a finding followed by an appropriate order. " Lord Upjohn observed "the primary meaning of the word "conviction" denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt, or the acceptance of the plea of guilt followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. The above observations of different Lords in the aforesaid case were made while dealing with the case as to whether the accused who pleads guilty can withdraw his plea and plead not guilty before the sentence is passed. Therefore, there can be no doubt that the term "conviction" has two meanings. In the general sense, it means "a finding of guilt-" but in legal parlance it means "a finding of guilt followed by some order'. Maxwell on the interpretation of statutes, twelth Edition at Page 279, while dealing with "identical expressions" and referring to the safe rule that the same word is used in the same sense in a statute has observed 'the presumption as to identical meaning is however, not of much weight. The same word maybe used in different senses in the same statute and even in the same section. " The author has again said "there are many modern examples of the same word being given distinct meanings. " He further says at page 280, "the usual reason for attributing different meanings to the same word is simply that it occurs in different contexts. "
(3.) "craies on Statute Law" at page 168-169, under the heading "use of same words in different senses in the same Act" has said "it is a sound rule of construction, said Cleasby B, in Courtanld vs. Legh, "to give the same meaning to the same words occurring in different parts of the Act of Parliament. " The presumption that the same words are used in the same meaning is however very slight and it is proper, "if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act. " Reference was made to the observations of Turner J. in Re National Savings Bank (3 ). Reference was also made to R. V. Burt, ex, P. Presburg (4 ). It is also a well settled rule of construction that if two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Act and eschew the other which will lead to absurdity or will make established provisions of existing law nugatory or which would lead to strange, inconsistent results or otherwise introduce an element of uncertainty and practical inconvenience in the working of the Statute. In the earlier part of this order, I have already referred to some provisions promiscuous dealing with trial of cases, wherein word "conviction" and • convicted' have been used, but at the cost of repetition it may be stated that these words have not been defined any where in the Code & are ambiguous words. It may be observed that the purpose of the some of the provisions of Code which replaced Cr. P. C. 1898. was to avoid, delays in the disposal of the cases. If the word "conviction" or' convicted" is taken to mean only a finding of guilt and not final disposal of the case, then to my mind, it will frustrate the very object of the Code. If a meaning as suggested by the learned Advocate for the appellant is assigned to the word "conviction" and "convicted" then it will confer more than one right of appeal on the accused, one against "the finding of guilt" and the other, the consequential sentence or order as the case may be. The sentence for an offence is an important consideration, as depending on the sentence awarded for the offence the forum of appeal may differ. If under Sec. 374 of the Code "conviction" only means a finding of guilt of a person accused of an offence then in case of person "convicted" on trial held by a court other then the Sessions Judge or Additional Sessions Judge an appeal will lie to the Sessions Judge. But if that Court passes a sentence of imprisonment for more than 7 years then an appeal will lie to the High Court. It could not have been the intention of Legislature to confer two rights of appeal on the accused, one against the finding of guilt and the other against the consequential order. Not-with standing any thing contained in section 374 there is no right of appeal in cases in which a court passes a sentence prescribed in section 376 Cr. P. C. Can, it be said that in such case against adjudication of guilt an appeal will lie but if it is followed by sentence prescribed therein then no appeal will lie and only a revision will lie. There may be cases where though an accused is convicted but the passing of the sentence for the offence is postponed. If "conviction" is assigned the meaning "a finding of guilt" as suggested by the learned Advocate for the appellant, then though against conviction an appeal may lie in every case before a proper forum; but against the sentence if one is passed as aforesaid no appeal will lie. In case the accused pleads guilty, no appeal lies except to the extent or legality of the sentence I am, therefore, of the opinion that "conviction " or "convicted" in sec. 374 of the Code means" a finding of guilt of a person accused of an offence and some consequential order. In other words so far as the trial court is concerned it must finally dispose of the matter. ;