Mohan Singh vs State of Punjab

D.S. Tewatia, J.—This criminal revision petition was admitted to a hearing by a Division Bench, perhaps, for the reason that the case involved an important question of law viz. whether the appellate Court bearing appeal u/s 515, Code of Criminal Procedure, 1898 (5 of 1898), had the power to remand the case after setting aside the order of the trial Magistrate passed u/s 514 thereof.

Only such facts, as directly bear upon the question aforesaid, deserve to be noticed and these can be stated thus: The Petitioner Mohan Singh bad stood surety for one Sucha Singh and had executed a surety bond in the sum of Rs. 5000/- undertaking to produce Sucha Singh accused, who was released on bail on the undertaking given by Mohan Singh in his aforesaid bond, on all hearings of the case, pending against him in the Court of Shri B. M. Modi, Judicial Magistrate First Class, Zira. Sucha Singh accused failed to appear in that Court on 17th January, 1970. When the accused persisted in absenting Herself on the subsequent hearings in the case as well, Mohan Singh Petitioner his surety, was called upon to produce him. He was given several, opportunities to do so. Eventually, the Court finding no other option available to it, forfeited his surety bond and ordered recovery of Rs. 1,000/- out of the bond amount, vide its order dated 11th February, 1971.

Against that order, Petitioner Mohan Singh went up in appeal u/s 515, Code of Criminal Procedure to the Sessions Judge. The main point that was urged on behalf of the surety before the Additional Sessions Judge, who heard the appeal was that no show-cause notice, as envisaged u/s 514 of the said Code, had been issued to him in question before ordering the recovery of the amount from the surety bond. It was also urged before him that surety bond was not validly attested and, therefore, the undertaking given in the surety bond was not binding upon the surety. The Sessions Judge set aside the order of the trial Magistrate mainly for the reason that the requisite notice u/s 514 of the Code, which was a mandatory one, had not been issued and, therefore, the subsequent proceedings, which culminated in the order under appeal, stood vitiated. He, how-ever, remanded the case to the trial Court for doing the needful in accordance with the provisions of Section 514 of the Code and also directed it to go into the validity of the bond.

The surety, Mohinder Singh Petitioner in this revision petition, has challenged that part of the said order of the appellate Court whereby it remanded the case to the trial Court to proceed in accordance with the provisions of Section 514 of the Code.

Mr H. S. Bhullar, Learned Counsel for the Petitioner, has argued that u/s 515 of the Code, there being no express authorisation to the appellate Court to remand the case, the appellate Court lacked the jurisdiction to remand the case after setting aside the order of the trial Court. It was also contended that the appellate Court could not do so under its inherent jurisdiction either.

On behalf of the State, it was, however, argued that the provisions of Section 423 of the Code being applicable to all appeals filed under the Code of Criminal Procedure the appellate Court had the power to pass any consequential or incidental order in terms of Clause (d) of Section 423(1) of the Code.

The Learned Counsel for the Petitioner in reply urged that the provisions of Section 423 of the Code were not applicable and that even though these were held to be applicable, it is Clause (c) alone that was relevant and that did not authorise an appellate Court to order fresh enquiry or remand the case ; and that such an order would not fall under Clause (d) as wall, for it could not be regarded as consequential or incidental to the one passed under Clause (c) of Section 423(1) of the Code.

Before proceeding to examine the merit of the rival contentions, it is necessary, for facility of refence, to reproduce the relevant provisions of Sections 423, 514 and 515 of the Code of Criminal Procedure. These are in the following terms:

423(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the Appellant or his pleader, if he appears, and the public Prosecutor, if he appears and, in case of an appeal u/s (sic)11A, Sub-section (2), or Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -

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(c) in an appeal from any other order, alter or reverse such order ;

(d) make any amendment or any consequential or incidental order that may be just or proper. * * *

514(1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code had been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid

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All orders passed u/s 514 by any Magistrate shall be appealable to the Sessions Judge, or, if not so appealed, may be revised by him.

The rival contentions advanced before us are not bereft of judicial support and, therefore, it would be immediately necessary to examine first the decisions on which reliance has been placed on behalf of the Petitioner. The first decision in point of time is of the Lahore High Court reported in AIR 1929 28 (Lahore) the second is Manni Lal Vs. Emperor and the last decision is again that of the Allahabad High Court, but of a Single Bench, reported in Malkhan Singh Vs. State, which has largely drawn upon, for its decision, on the ratio of the Full Bench decision of the same High Court in Manni Lal''s case.

In Chandan''s case (supra) the facts were that the appellate Court hearing an appeal from an order u/s 110 of the Code of Criminal Procedure had remanded the case for retrial. Zafar Ali, J. when deciding a revision petition from the aforesaid order of the appellate Court held that the appellate Court had no power to order a retrial. The learned Judge held that on an appeal from an order, as distinguished from the one against conviction, the appellate Court could either alter the order or reverse it as laid down in Clause (c) of Section 423 of the Code i.e. the District and Sessions Judge who decided the appeal could either reverse the order or alter it, as, for instance, reducing the amount of security, and that an order for a fresh enquiry did not tall under either category.

The perusal of the abovesaid judgment would reveal that the learned Judge, with respect, kept out of consideration the provisions of Clause (d) and confined himself merely to the language of Clause (c) of Section 423(1) of the Code Hence that decision is really of no help to the Petitioner in regard to his contention for two reasons (sic) that the decision does not support the broad proposition that the provisions of Section 423 of the Code are not available to appellate Court deciding appeal filed under provisions obtaining in Chapters other than Chapter 31, in which Section 423 of the Code occurs, for in the case of Chandan (supra), the learned Judge proceeded with the assumption that the provisions of Section 423(1)(c) were applicable, and (2), that the learned Judge could not be assumed to have held that the provisions of Clause (d) of Section 423(1) of the Code could not supplement the power under Clause (c) thereof, for in that case the learned Judge did not even refer to the provisions of Clause (d).

As already observed, the learned Judge, who decided Malkhan Singh''s case (supra), largely drew upon the ratio of Allahabad High Court''s Full Bench decision in Manni Lal''s case, so it would be desirable to first examine the latter decision.

In Manni Lal''s case, one of the questions, that arose for consideration, was as to whether to the appeal u/s 476-B of the Code, the previsions of Chapter 31 thereof, and more particularly the ones finding mention in Section 423 of the Code, were or were not applicable. The background in which this question was posed was that the appellate Court, after allowing the appeal, ordered the trial Magistrate to take evidence on a certain question and then prosecute or refrain from prosecuting the accused u/s 476 of the Code in the light of evidence so obtained. This order was taken in revision before the High Court and the point raised before it was that the provisions of Section 476-B of the Code did not authorise the appellate Court to remit the case to the trial Magistrate. The order passed by the appellate Court was sought to be sustained on behalf of the Respondent State by pressing into service the provisions of Section 423(1)(c) and (d) occuring in Chapter 31 of the Code. While examining this aspect of the case, Sulaiman, C. J. held that the provisions of Chapter 31 of the Code were not supplemental to the provisions of Section 476-B and that even if for the sake of argument it was held that the provisions of that Chapter were supplemental to the provisions of Section 423(1)(d) it would not confer on the appellate Court power to remit the case to the trial Magistrate.

In ruling out the application of the provisions of the entire Chapter 31, the learned Chief Justice was much influenced by the contract in the provisions of Sections 486 and 476-B, both occurring in the same Chapter and dealing with appeals. While to an appeal filed u/s 486 the application of the provisions of Chapter 31 was expressly extended by Sub-section (2) of Section 486, no such express provision was made regarding the hearing of the appeals u/s 476-B. The learned Chief Justice drew the inference from the above contrast that whenever the legislature wanted the provisions of Chapter 31 to be made applicable to appeals filed under other Chapters of the Code, it expressly provided so.

With great respect to the learned Chief Justice, we do not think that the application of the provisions of Chapter 31 could be excluded to the appeals filed under other Chapters of the Code on the above reasoning for two reasons (1) that some of the provision envisaging filing of the appeal do not deal at all, even with the mode of the filing of the appeal, the manner of dealing therewith, and its disposal. One such provision is Section 515 of the Code which has already been reporoduc-ed in an earlier part of this judgment. If it was to be held that every such provision is to stand by itself and the Court while hearing the appeal was to confine itself to the exercising of only such powers as are conferred by the provision authorising the filing of the appeal, then we are afraid no indication is available from the provisions of section 515 as to in what manner the Court, while hearing the appeal, was to deal with it. It cannot be, even for a moment, thought that the legislature would have left such a lacuna in the law. Hence, the inference is obvious that the legislature advisedly refrained from being exhaustive while framing this provision, as it must have felt that it had already provided for the mode of filing the appeal and the scope of the power of the appellate Court in disposing it of, and (2) that there was reason as to why to the appeals filed u/s 486 of the Code, the provisions of Chapter 31, so far as these were applicable, were expressly made applicable, and the reason was that some of the provisions in Chapter 31 of the Code, such as Sections 428 and 431 thereof, were expressly restricted in their application to the appeals filed under the provisions of that Chapter. Hence if an express provision had not been made regarding the application of the provisions of Chapter 31 to the hearing of appeal filed under another Chapter of the Code, then the provisions, like those of Sections 428 and 431, would have stood excluded in their application to appeals filed under other Chapters by its own terms and if the legislature had thought it necessary that the provisions incorporated in Sections 428 and (sic)31 of the Code should be applicable to appeals under other Chapters of the Code, then two courses were open to the legislature (i) to independently provide for the matters dealt with under Sections 420 and 431, or (ii) to expressly make applicable the provisions of those sections. The first course must have been thought inadvisable for the reason that it would have involved a repetition of those provisions, and the second course must not nave (sic) itself to the legislature for the reason that if it was to expressly provide for the application of the provisions of these two sections only as supplementing the provisions authorising appeals under other Chapters, then by necessary implication arising from the maxim ''inclusio unius est exclusio alterius'' that would have excluded the application of other general provisions obtaining under Chapter 31 of the Code to such appeals and that contingency would have necessitated the repetition of all Such general provisions dealing with the mode of the tiling of the appeal and its disposal in every Chapter, preceding or following Chapter 31, which envisaged riling of the appeal from an order of judgment passed under the provisions of those Chapters.

We are, therefore, of the view that the legislature having indicated the scope of the provisions of Chapter 31, in the very opening section of that Chapter i. e. Section 404, which is in the following terms, it was not necessary for it to expressly mention while providing for appeals under other Chapters that the provisions of Chapter 31 would be applicable to such appeals. It had to do so only when it wanted to extend the application of such of the provisions of Chapter 31 which by their terms had limited themselves to appeals filed under that Chapter and not otherwise:

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

The learned Chief Justice excluded the application of the provisions of Section 323(1) c) and (d) of the Code, firstly, for the reason that be was of the opinion that the recording of a finding or the making of a complaint u/s 476(1) did not amount to an order within the meaning of Section 42(1)(c) of the Code and so the provisions of section 423 were inapplicable to an appeal filed u/s 476-B of of the Code, and secondly, while considering in the alternative that even if the finding recorded u/s 476(1) tantamounts to the passing of an order, Clause (c) or Section 423(1) did not authorise the appellate Court to remit the matter to the trial Magistrate for a fresh decision and Clause (d) would not help, because such an order could not be considered to a consequential or incidental order, for if the provisions of Clause (d) were held to contain authority for remitting a cause for fresh and de novo enquiry, then there would have been no sense in making an express provision to that effect in Clauses (a) and (b) of Section 423(1) of the Code, and that from the above, the inference was clear that such a provision for ordering retrial was made in Clauses (a) and (b) of Section 423(1) of the Code, as the same was not considered to have been included in the cosequential or incidental order mentioned in Clause (d).

Here again, with respect, we are of the view that the learned Chief Justice was not right on the aforesaid inferential reasoning in restricting the scope of the provisions of Clause (d).

Clauses (a) and (b) of Section 423(1) of the Code deal with the appeale against acquittal or conviction. If a specific provision regarding a retrial had not been mentioned in Clauses (a) and (b), then the provision of Section 403 of the Code which barred a fresh trial, may have stood in the way of the ordering of the fresh trial of the accused but no such difficulty on account of the provisions of Section 403 of the Code would occur in regard to the ordering of the fresh enquiry in the kind of matters as are dealt with u/s 514 of the Code.

The reasoning adopted for differing with the view enunciated in Manni Ram''s case (supra) mutatis mutandis, applies to the view expressed in Malkhan Singh''s case (supra), and with respect, we add that neither Manni Ram''s case nor Malkhan Singh case laid down the correct law. while holding that the provisions of Chapter 31 were not supplemental to the provisions envisaged in other Chapters of the Code and that even if the provisions of Chapter 3) were held to be applicable then the provisions of Clause (d) of Section 423(1) of the Code did not have in its contemplation the passing of an order by appellate Court providing for a remand of the case for fresh enquiry.

Before proceeding to consider the decisions supporting the contrary view, we may at this stage refer to a Single Bench decision of Jammu and Kashmir High Court reported in Mohammad Hussain Bandy Vs. The State, In that case, the learned Judge partly agreed with the Allahabad High Court view expressed in Manni Ram''s case and Malkhan Singh''s case (supra) and partly differed therefrom. So far as the application of the provisions of Chapter 31 to an appeal filed u/s 515 of the Code is concerned, it took a view different from them, but it concurred with their view in regard to the scops of Clause (d) of Section 423(1) of the Code and held that ordering a fresh enquiry or taking more evidence did not amount either to an amendment of any order or passing of any consequential or incidental order. In coming to this conclusion, the learned Judge pressed into service the reasoning given in Manni Ram''s case (supra), the soundness where of had already been examined in the earlier part of this judgment while dealing with that case and therefore, it is unnecessary to dilate upon that aspect of the matter here. Suffice it to add that, with respect the learned Judge who decided that case, we are unable to agree with the view that he had taken. We are, therefore, clearly of the view that such of the provisions of Chapter 31, as are of general nature and not specifically made to apply to the appeals under that Chapter are supplement to the appeals filed under other Chapters of the Code.

It cannot be gainsaid that the provision of Clause (c) of section 4(sic)(1) would cover an appeal from an order passed u/s 514 of the Code. So the only point that survives for consideration is so to whether by virtue of the powers conferred on the appellate Court by Clause (d) of Section 423(1) it could remit a case for fresh enquiry. In other words, whether an order passed by the appellate Court after setting aside an order under appeal and then ordering fresh enquiry, can be considered an order incidental to the main order passed under Clause (c) of Section 423(1) of the Code.

We are of the opinion that such an order would be clearly incidental to the main order passed under Clause (c) of section (d) as 423 (1) of the Code for the provisions of Clause (d) as worded is of wide import and authorises the appellate Court to pass any order that may be considered, ''just and proper'' by it in the circumstances of the given case and the only limitation on that power, that one can envisage and which, in fact, is included in the expression ''just and proper'' is that the order should be such as may not prejudice the case of the parties before it i-e., the power cannot be exercised under Clause (d) to fill in the lacuna of the evidence of either side or to improve the case of one or the other party. In other words and without attempting to be exhaustive, all such orders passed by the appellate Court would be considered incidental ones if non-passing of such orders would have led to the miscarriage of justice.

The obove view, that we have taken regarding the scope of Clause (d) of Section 43(sic)(1) of the Code, receives support from Bhagwat Singh and Ors. v. Emperor AIR 1992 All. 403, AIR 1928 567 (Lahore) AIR 1942 84 (Lahore) which overruled its earlier decision reported in AIR 1929 28 (Lahore) Norappa Reddy and Ors. v. Emperor AIR 1934 Mad 202 Prakasa Reddi and Others Vs. Jonnala Pitchareddi and Another, , in which ratio of Bhagwat Singh and others'' case (supra) of the Allahabad High Court Firm Ram Gopal-Mool Chand Vs. Income Tax Commissioner, ) and Subeg Singh''s case of the Lahore High Court was approvingly quoted. Ram Sarup and Ors. v. The State 1956 A.L.J. 649 and Murari and Anr. v. State 1957 A.L.J. 648. The latter two decisions of the Allahabad High Court had followed the ratio of the earlier Division Bench decision of that Court in Bhagwat Singh and others'' case.

In merits also, the order of the learned Additional Sessions Judge is correct, as the order passed by the trial Magistrate was in disregard of the mandatory provisions of show-cause notice envisaged in Section 514 of the Code, which rendered the proceedings before him as invalid, as has been held by their Lordships of the Supreme Court in Ghulam Mehdi Vs. State of Rajasthan,

For the reasons stated, we hold that it was within the competence of the appellate Court to pass the order under challenge. Hence there is no permit in this revision petition and the same is accordingly dismissed.

Pritam Singh Pattar, J.

I agree.