SHINGHAL, J. - (1.) THIS is a petition by the accused for a revision of the appellate order of learned Additional Sessions Judge No 1, Jodhpur, dated October 23, 1972, by which he has sent the case back to the Sub Divisional Magistrate of Phalodi for "trial in accordance with law. "
(2.) THE allegation against the accused Pyarelal was that while Sub Divisional Magistrate Roshan Lal was holding his court on September 4, 1972, and was dealing with a criminal case, he entered the court room at about 3. 15 p. m. and treated the Sub Divisional Magistrate in an uncivilised manner and used indecent language. THE learned Magistrate took cognizance of the offence under the provisions of sec. 480 Cr. P. C. and sentenced the accused to a fine of 200/ -. He did not, however, record a finding about the commission of an offence under any particular provision of the Indian Penal Code. The petitioner preferred an appeal, which was heard and decided by the learned Additional Sessions Judge as mentioned above. The learned Judge came to the conclusion that no opportunity had been given to the accused to make a statement, so that there was no compliance with the provisions of sec. 481 Cr. P. C. and that had prejudiced the trial. He therefore allowed the appeal, set aside the sentence which had been passed by the learned Sub Divisional Magistrate, ordered the refund of the fine and directed that the case shall be sent for retrial as aforesaid. The accused feels aggrieved because, according to him, a retrial can not be ordered in view of the provisions of Sec. 486 (2) Cr. P. C. It cannot be doubted, and has not been disputed that the requirement of sec. 481 (1) Cr. P. C. for recording the statement (if any) made by the offender, is mandatory. The proceedings which were drawn up by the learned Sub Divisional Magistrate show, however, that he convicted and sentenced the petitioner without recording his statement and without giving him any other opportunity to clarify the allegation against him. The question whether he had committed any offence of the nature mentioned in Sec. 480 Cr. P. C. was a question of fact, and the accused had a right to make a statement in regard to the allegation that he was guilty of contempt of court. His learned counsel has argued that if such an opportunity had been given, the petitioner would have shown how it was not permissible for the learned Magistrate to adopt the procedure laid down under sec. 480 CD because he was not holding any court, but was in his chamber, at the time of the alleged incident. It cannot be doubted, therefore, that the learned Additional Sessions Judge was justified in taking the view that the petitioner was prejudiced by the unilateral proceedings drawn up by the learned Magistrate in contravention of the provisions of sec. 481 (1) Cr. P. C. A similar view has been taken by this court in Chakrapani vs. State (l ). The question then is whether it was permissible for the learned Additional Sessions Judge to remand the case for retrial? Sec 486 provides for appeals from convictions in contempt cases. Sub-sec. (1) of that section gives a right of appeal, and specifies the court to which it has to be addressed. It is not disputed that the present petitioner had a right of appeal to the Court of Session, and there is no controversy in regard to the competence of the learned Additional Sessions Judge to dispose it of The powers of the court of appeal have been stated in sub-sec. (2) of sec. 486 Cr. P. C. as follows - "s. 486 (2) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section, and the Appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against. " The provisions of Chapter XXXI of the Code of Criminal Procedure are therefore applicable to an appeal under 486 (1) Cr. P. C. to the extent mentioned in sub-sec. (2 ). Those powers have, inter alia, been limited by providing that the appellate court may alter or reverse the finding, or reduce or reverse the sentence appealed against". The provisions of sec. 423 Cr. P. C. which form part of Chapter XXXI are not therefore applicable to the extent of the limitation imposed by sub-sec. (2) of sec. 486. Thus the provisions of Cls. (c) and (d) of sub-sec. (1) of sec. 423 are not applicable to such an appeal. In other words, it is not permissible, in view of the express provisions of sub-sec. (2) of sec. 486, for the court, while disposing of an appeal under sub-sec. (1) of that section, to invoke the power under Cl. (d) of sub-sec. (1) of sec. 423 and to make any consequential or incidental order that may be just or proper in the circumstances of the case. That, in turn, leads to the irresistible conclusion that the appellate court had, in this case, only the power to alter or reverse the finding of conviction, or to reduce or reverse the sentence appealed against, but it could not wrest the provision of Cl. (6) of sub-sec. (1) of sec. 423 and make an order for the retrial of the case.
(3.) IF the learned Judge had appreciated his limitations, as the court of appeal, under sub-sec. (2) of sec. 486, he would have realised that all that was permissible for him was to alter or reverse the finding of conviction, or to reduce or reverse the sentence appealed against. He has however accepted the appeal and set aside the sentence on account of the illegality in the trial (mentioned above ). In law, that was really an order of reversal of the finding of conviction as well as the sentence appealed against, within the meaning of sub-sec. (2) of sec. 486, because it was not permissible for the learned Judge to make any other order on the view he had taken about the illegality of the trial. There is therefore justification for the argument that the impugned judgment of the appellate court has the effect of acquitting the accused of the offence of which he was convicted by the learned Sub Divisional Magistrate. As that acquittal has been set aside, and remains in force, the accused is not liable to be tried again for same offence by virtue of sec. 403 Cr. P. C. I have not had the benefit of following any decision which could be said to be on all fours with the present case The learned counsel for the petitioner has, however, made a reference to State vs. Tribeni Sharma (2), and to the Full Bench decision in State vs. Sukumar Ghakraborty (3) in which that decision has been followed. The first of these was a somewhat different case, for the question for consideration there was that relating to the maintainability of the appeal as the sentence was of a fine below Rs. 50/ -. While considering the scope of sec. 486 (1), with reference to sec. 423 Cr. P. C. it was held by their Lordships that, in contrast to sec, 423 which defines the power of the appellate court in appeals under Chapter XXXI, the appellate court, in exercise of its powers under sub-sec. (2) of sec. 486, cannot order a retrial. As has been shown, I am in respectful agreement with this view. A similar view has been taken by the Full Bench of the Calcutta High Court in State vs. Sukumar Chakraborty (3) after considering the reasoning in Tribeni Sharma's case (2 ). The learned counsel for the non-petitioner has argued however that the relevant provisions of sub-sec. (2) of sec 486, to which reference has been made above, are quite similar to those of cl. (c) of sub sec. (1) of sec. 423 inasmuch as that clause also provides that the appellate court may, in an appeal from any other order (not being an appeal from an order of acquittal or conviction), "alter or reverse such order. " He has urged that those provisions of cl. (c) have been held to justify the making of an order of retrial in Bhagwat Singh vs. Emperor (4 , Subeg Singh vs. Emperor (5), Bhaiyalal Khubchand vs. King Emperor (6), Prakasa Beddi vs. Jomnale Pitchireddi (7) and Ram Sarup vs. State (8 ). I have gone through all these cases. Three of them were cases in which appeals were directed against orders made under sec. 107 Cr. P. C. One was a case of appeal against an order under sec. 110 Cr. P. C. , and in the remaining case there was an appeal against an order under sec. 145 Cr. P. C. All of them therefore squarely fell within the purview of cl. (c) of sub-sec. (1) of sec. 423 and it was held that it was permissible for the court of appeal to order a fresh inquiry. But such an inquiry was ordered, and was held to be valid, as an "incidental order". As has been pointed out, it was permissible to make such an "incidental" or "consequential" order in view of the express provision of cl. (d) of sub-sec. (1) of sec. 423 so that in those cases the appellate court was well within its power in ordering a fresh enquiry. In fact there was specific reference to the provision of cl. (d) of sub-sec. (1) of sec. 423, while ordering a fresh inquiry, in Subeg Singh's case (5), and the view taken there was fallowed in Bhaivalal Khubchand vs. King Emperor (6 ). In Prakasa Reddi vs. Jomnala Pitchireddi (7) also, the case was remitted in exercise of the powers under cls. (c) and (d) of sub-sec. (1) of sec. 423. As has been shown, it was not permissible for the learned Additional Sessions Judge, in the present case, to invoke the provision of cl. (d) of sub-sec. (1) of sec. 423 for the purpose of ordering a retrial of the accused as his appeal had to be disposed of in accordance with the provisions of sub-sec. (2) of sec. 486. ;