P.R.K. Mohan vs Union of India (UOI) and Another

Y. Bhaskar Rao, J.—This is a revision filed against the judgment of the Metropolitan Sessions Judge, Hyderabad, dismissing the appeal as not maintainable.

The brief facts involved are: The petitioner was working in the Central Reserve Police Force, Hyderabad. He absented from duty without permission or leave ''from 3-6-88 to 14-10-88, which is an offence u/s 10(m) of the Central Reserve Police Force Act (hereinafter referred to as ''the Act''). The Assistant Commandant-cum-Judicial First Class Magistrate tried the offence, found him guilty thereunder, convicted him u/s 10 (q) of the Act and sentenced him to suffer simple imprisonment for fifteen days in C.R.P.F. Quarter Guard, Hyderabad. Aggrieved of that, the petitioner filed the appeal before the Metropolitan Sessions Judge. The Sessions Judge held that the Assistant Commandant, though invested with powers of First Class Magistrate and followed the precedure contemplated by the Code of Criminal Precedure in trying the offence, cannot be termed as ''inferior Court for an appeal to lie before him against the orders of the Assistant Commandant. He accordingly dismissed the appeal. Hence this revision.

The learned counsel for the petitioner contended that in view of the conviction and sentence for the offence u/s 10(m) of the Act there does lie an appeal under the provisions of the Criminal Procedure Code inasmuch as the trial was under the provisions of Cr. P.C., the sentence was to suffer imprisonment and there is no appellate forum prescribed under the Act.

The learned Addl. Public Prosecutor, on the other hand, submitted that there is an appeal provided under Rule 28 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as ''the Rules'') for offences u/s 11 of the Act. But no appeal is provided for offences u/s 10 of the Act. The contention, therefore, is that the presence of Rule 28 providing appeals against convictions for offences u/s 11 and the absence of any provision for appeal in respect of convictions for offences u/s 10 do make it clear that the Legislature intended to treat the convictions for offences u/s 10 as final, and accordingly the petitioner cannot be permitted to invoke the provisions of Cr. P.C., for purposes of filing an appeal.

In view of the rival contentions, the important question that arises in this revision is, whether an appeal lies to the appellate Court under the provisions of the Code of Criminal Procedure against the punishment imposed u/s 10(m) of the Act by the Assistant Commandant.

As noted above, the offence tried was u/s 10(m) of the Act and the punishment imposed was u/s 10(q) of the Act. It is relevant to notice these two provisions. They run as under:

"10. Less Heinous Offences:

Every member of the Force who:

(a) xx xx (1) xxx

(m) absents himself without leave, or without sufficient cause overstays leave granted to him; or

(n) xx xx (p) xx xx

(q) shall be punishable with imprisonment for a term which, may extend to one year, or with fine which may extend to three months pay or with both.

"Section 9 deals with Heinous Offences while Section 10 relates to less Heinous offences. For offences both under Sections 9 and 10, Section 10(q) provides the punishment.

Section 11 of the Act is in respect of minor offences. Rule 28 referred to by the Addl. Public Prosecutor provides appeal against punishments for offences u/s 11 of the Act. However, it has no concern with the punishment imposed for offences u/s 9 or 10. Equally there is no provision in the Act that provided appeals against punishments for offences u/s 9 or 10 of the Act. The argument of the learned Public Prosecutor that the presence of Rule 28 providing appeals for offences u/s 11 and absence of any provision in the Act or Rules in regard to appeal against punishments for offences u/s 9 or 10 of the Act gives rise to a positive inference that the Legislature intended to clothe ''finality'' to the orders of punishment of the Assistant Commandant, appears to be without substance inasmuch as Section 4 of the Criminal Procedure Code contemplates such situations and provides for dealing with them under the provisions of Cr. P.C. Section 4 Cr. P.C., to the extent relevant reads:

"4. Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according, to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

Thus, Section 4(2) Cr.P.C, specifically makes it clear that the provisions of Cr.P.C, shall govern such matters which are not provided for by the enactment. Since Section 16(2) of the Act enabled the Assistant Commandant to try the present offence, the provisions of Cr.P.C, for purposes of Forum cannot be invoked. No doubt, u/s 16(2) the Assistant Commandant could as well direct trial of offences, including the present one. by an ordinary Criminal Court. But that is discretionary. However, the trial by the Assistant Commandant shall be a ''Judicial Trial''. Rule 36 categorically mandates that all trials in relation to offences u/s 9 or 10 shall be in accordance with the procedure laid down by the Cr. P.C. In the background of Section 4(2) Cr.P.C, Section 16(2) of the Act and Rules 28 and 36, the only possible conclusion is that an appeal does lie against the punishment for the effence u/s 10(m) of the Act to the authority contemplated by the Code of Criminal Procedure.

In Sham Lal Vs. State and Others, , the Full Bench of the Jammu & Kashmir High Court while considering the same question held that the word ''Trial'' occurring in Rule 36 of the Central Reserve Police Force Rules includes ''Appeals'' and hence the provisions of the Criminal Procedure Code will apply to the punishments imposed u/s 9 or 10 of the Act for purposes of preferring appeals.

In view of the above, the judgment under revision is set aside and the matter is remanded to the Metropolitan Sessions Court, Hyderabad, for hearing the appeal and disposing it of on merits as per law. Pending the appeal, the order of the Assistant Commandant shall stand suspended. The revision is accordingly allowed.