Ramchandra Agarwal and Others vs State of Orissa

K.B. Panda, J.—This is a batch of eight criminal misc. petitions by different Petitioners under Sections 561-A and 562 of the Code of

Criminal Procedure for a review of the orders of this Court passed in Criminal References Nos. 13 & 15 to 21 of 1972 on 7-5-1973 enhancing

their sentence of, fine of Rs. 2,000/- to one of R.I. for six months arising in the following circumstances.

On 1-2-1967, at the instance of the Vigilance Police, some business premises of Malgodown, Cuttack were raided and certain documents and

Khatas seized, which on examination revealed transactions of forward contract in ground-nut oil prohibited under law. Consequently nine Criminal

cases were started against these firms and their partners or proprietors u/s 20(e) of the Forward Contracts (Regulation) Act, 1952 (Act 74 of

1952) (hereinafter referred to as the Act). All the cases were tried and disposed of by the Additional District Magistrate (Judl.), Cuttack. Before

him, in some cases, the managing partners and in some cases the managers or proprietors took the responsibility of having transacted the business

(three instances of Forward Contract in Ground-nut oil) and therefore the Additional District Magistrate (Judl.) exonerated others and found the

firms and the person in management of the business to be guilty and inflicted a consolidated fine of Rs. 2, 000/- with a defaulting sentence of simple

imprisonment for three months. On appeal the Sessions Judge while dismissing the same recommended for enhancement of sentence in as much as

the minimum sentence awardable under the Act, for each offence, was rupees one thousand. All the convicted persons and their respective firms

filed revisions against their convictions before this Court excepting one. But, all the same, there were nine references made by the Sessions Judge

for passing ""appropriate sentence"". This Court, while dismissing the revisions enhanced the sentence in the reference cases, so far as the firms are

concerned, to a sum of Rs. 3, 900/- at the rate of rupees one thousand and three hundred for each offence and so far as the managers or managing

partners are concerned, to a sentence of six months'' rigorous imprisonment, -that is, two months for each deal.

The party that did not prefer any revision was only sentenced to pay a fine of Rs. 3, 900/- in the concerned criminal reference No. 14 of 1972

but no substantive imprisonment was awarded. The firms have paid up their fines. But persons who were awarded substantive imprisonment, as

stated above, have filed these criminal miscellaneous petitions for a review of the order, mainly on three grounds:

(1) the provisions of the Probation of Offenders Act have not been considered by this Court before awarding the sentence;

(2) the provisions of Section 562 of the Code of Criminal Procedure which provide ""to release certain convicted offenders on probation instead of

sentencing to imprisonment"" have been overlooked; and

(3) the Petitioners were given notice of enhancement in the reference cases (not in the criminal revisions) in respect of fines imposed, basing on the

recommendation of the learned Sessions Judge to pass an appropriate sentence as the trying Court had erred in not inflicting the minimum sentence

provided under the Act. Thus there was no indication, even remotely, in those notices that there would be substantive imprisonment, and so the

order is illegal contrary as it is to the provisions of Section 439(2) and (6) of the Code of Criminal Procedure.

The petitions raise the following points:

(1) Has the Court jurisdiction to entertain a petition under Sections 561-A of the Code of Criminal Procedure to review its order and if so, is it an

unlimited one so as to cover cases like the present one?

(2) Are the Petitioners entitled to the benefit of the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as the Offenders

Act)?

(3) Are the provisions of Section 562, Code of Criminal Procedure attracted in this case? and

(4) Are the notices issued to the Petitioner in the reference cases for enhancement of sentence were ""limited notices"" for enhancement of the

sentence of fine only and not a ''comprehensive notices'' of enhancement of sentence which would include imposition of substantive imprisonment

also?

So far as the question of jurisdiction is concerned, it was contended by Mr. B.M. Patnaik, learned Counsel appearing for the Petitioners that the

Court has inherent jurisdiction and wide powers u/s 561-A of the Code of Criminal Procedure to make such orders as may be necessary to

prevent ""abuse of any process of the Court or to otherwise secure the ends of justice"" and thus the power is untrammelled. Mr. P. Parida learned

Counsel appearing on behalf of the State conceded to the extent that the Court has inherent powers to revoke, vary or alter its order but it is

circumscribed to circumstances when the said order is (sic) facie whithout jurisdiction or illegal. According to Mr. Parida, the impugned orders

dated 7-5-1973 are neither without jurisdiction nor illegal and therefore there is no scope for interference. The question of jurisdiction, it seems, is

no longer res integra. There is a plethora of decision on the point. That apart Section 561-A, Code of Criminal Procedure which in unequivocal

terms confers inherent powers on the High Court speaks of the situations when it can be invoked. The third situation mentioned in it i.e. ""or

otherwise to secure the ends of justice"" is quite broad and elastic indeed. It would be a futile endeavour to lay down an exhaustive list of such

situations. There are no two opinions, however, that the Court can go into facts or points of law, which were not considered for any reason and if

considered at least would have tilted the issue to a great measure. I can do nothing better than close this issue referring to a Bench decision of this

Court on the point : On an overall examination of the statutory provisions, the High Court is unable to find any fetter whatsoever, express or

implied, which would rule out the applicability of the inherent power of the High Court u/s 561-A in respect of an order purporting to be based u/s

439, Code of Criminal Procedure . Therefore, it will not be correct to say that the inherent power which the Court possess to review a judgment

made in the exercise of its revisional jurisdiction either relates to a matter covered by any specific provision of the Code or that its exercise is in any

way incompatible with any express statutory provision. See Simadri Nanda v. the State 36 (970) C.L.T. 1176.

On the second point it was contended by Mr. Patnaik that the Probation of Offenders Act is a salutary and progressive legislation the provisions

where of confer certain benefits on convicted persons. But the same was not taken into consideration while disposing of the revisions and

references. For this he relied on the case of Rattan Lal Vs. State of Punjab, wherein it is observed that ""the Act is a mile-stone in the progress of

the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of Criminal Law is more

to reform the individual offender than to punish him"". It was held therein adopting the rule of beneficial construction that the Appellate Court in

appeal or the High Court in revision could, in exercise of power conferred u/s 11 of the Offenders Act, make an order u/s 6(1) thereof, as the

Appellate Court and the High Court, agreeing with the Magistrate, found the accused guilty of the offences for which he was charged. In that case,

the Supreme Court remanded the matter to the High Court to make an order after complying with Section 6(1) and did not itself exercise powers

u/s 11. This decision follows the earlier decision in Ramji Missir and Another Vs. The State of Bihar, . The case, in Simadri Nanda v. the State 36

(970) C.L.T. 1176 referred to in the previous para which runs parallel to this is also an authority on the point. Mr. Parida pointed out a distinction

that in those cases the Supreme Court or the High Court was considering a case u/s 6 of the Offenders Act which is mandatory. But in the instant

cases, none of the Petitioners is below 21 years of age so as to attract the provisions of Section 6 of the Probation of Offenders Act. According to

him, and rightly so the powers of the Court under Sections 3 and 4 under which the case of the Petitioners come, are discretionary. Mr. Patnaik

also does not dispute that proposition of law but his contention is that exercising a mandatory or a discretionary provision of the law, on principle,

does not make any difference if the discretion so conferred is not exercised at all. It is one thing, according to him, that discretion has been

exercised in a particular way and another thing where there is total absence of exercise of discretion. He conceded that the party cannot

legitimately make a grievance if the Court uses its discretion in any manner it likes but there must be evidence of the fact that the Court has, in fact,

applied its discretion. In the instant cases, apparently the provisions of the Offenders Act have not been considered and in that way the impugned

order needs reconsideration which justifies the Court assuming jurisdiction to look into the matter afresh.

It is evident that Sections 3 and 4 of the Offenders Act are not to be equated with the provisions of Section 6 of the said Act. True, this Court

has not taken into consideration the provisions of Sections 3 and 4 of the Offenders Act, but the question, in the facts and circumstances of this

case, is if it warrants the reopening of the case for exercising its discretion at this stage. In this context, I may say, that the parties who were

represented by seasoned lawyers in the trying Court, did not raise this issue and the lower Court therefore did not consider that aspect at all.

Further the parties also did not canvass the point before the Appellate Court and merely challenged their conviction on merits. Therefore, the

Appellate Court had also no occasion to consider the provisions of Section 3 or 4 of the Offenders Act. That point was also not agitated while the

revisions were heard by this Court. Necessarily therefore, it was not taken into consideration. The exercise of the power being discretionary and

the parties not having availed themselves of the advantages conferred under the provisions of the Offenders Act, now at long last, when the matter

is closed cannot make a grievance of it and urge that the discretion conferred on the Court by the statute was not exercised. In the result, therefore,

though I am of the view that the Court has discretion to go into this matter, and offences under the Act are not excluded from the operation of the

Offender''s Act u/s 18 yet discretion having not been invoked done at any stage of the trial, it is now too stale to challenge the same when the

Petitioners found the order much to their disadvantage.

As to the applicability of Section 562, Code of Criminal Procedure this may not detain us much. Section 19 of the Offenders Act specifically

provides thus:

Subject to the provisions of Section 18, Section 562 of the Code shall cease to apply to the State or parts thereof (sic) which this Act is brought

into force.

This section of the Offenders Act repeals Section 562 of the Code of Criminal Procedure in the States or parts thereof in which this Act, that is the

Probation of Offenders Act, is brought into force. Admittedly, in this State, the provisions of the Offenders Act being in force and that being relied

on by the parties hereto, they cannot claim both the advantages the provisions of Offenders Act as well as Section 562 of the Code of Criminal

Procedure. Thus, the petition u/s 562, Code of Criminal Procedure as well as under the Offenders Act is inconsistent and incompatible-mutually

exclusive as they are.

So far as the fourth point is concerned, it was contended by Mr. Patnaik that u/s 439 Sub-sections (2) and (6), Code of Criminal Procedure

issue of notice of enhancement is a condition precedent to infliction of a higher sentence. But there being no such notice, the conversion of sentence

of fine to imprisonment is illegal. In the instant case, the conviction of the Petitioners was challenged in revision in which no notice of enhancement

was issued as is ordinarily done when the Court considers that a lenient sentence or an inadequate sentence had been passed which ought to be

enhanced. The only notice issued in this case is in the references made by the Sessions Judge. The Sessions Judge had pointed out that imposition

of consolidated sentence of Rs. 2, 000/- was not in accordance with law since the minimum fine prescribed under the Forward Contract Act was

one thousand for each offence. The recommendation of the learned Sessions Judge was to regula rise the sentence of fine. The learned Sessions

Judge did not state that the punishment was inadequate or lenient nor did he even remotely recommend to impose any graver punishment except

recommending for regularisation of the sentence of fine. Since regularisation of fine in the reference cases would involve enhancement of fine, this

Court issued notice of enhancement. The criminal references read with the revisions would establish conclusively that the Petitioners were merely

noticed to show cause why the sentence of fine should not be regularised by way of enhancement of fine. The notices rule out enhancement by way

of imprisonment since in this setting the notices were specifically in respect of fine and therefore imposition of sentence of imprisonment was

without Jurisdiction and so liable to be reviewed in exercise of the inherent powers u/s 561-A of the Code of Criminal Procedure. In this context, it

was strenuously urged that the Counsel for the Petitioners conceded at the hearing of the Reference Cases then that the sentence of fine were not in

accordance with law. However, he did not show any cause as to why severe sentence of imprisonment should not be imposed since the notices

were only in respect of fine. It was also urged that the Court likewise did not call upon the Petitioners Counsel to show such cause against passing

sentences of imprisonment during the course of hearing. Further the Counsel for the State also did not make any submission stating that the

sentence was lenient for which sentence of imprisonment should be imposed. In short, Mr. Patnaik''s contention was the conduct of the Counsel of

the Petitioners, the conduct of the Counsel of the State and the attitude of the Court would establish that the notices, as they were worded were

understood to be notices only for regularisation of the sentence of fine. Lastly, he submitted that on a plane reading of the notices in the

circumstances indicated above, if any doubt is cast in the mind of a normal man as to its scope or significance, then the benefit should go to the

accused.

Mr. Parida for the State contended that a notice of enhancement is always to be deemed to be for enhancement of sentence as provided under

the law. There is no difference between a notice issued in a revision filed by the accused and a notice issued in a reference made by the Sessions

Judge. Thus, according to him, even if there is a notice of enhancement in the Reference and there is no specific recommendation of the Sessions

Judge to the effect that the sentence imposed is lenient or inadequate, yet from the notices of enhancement, the parties who were represented by

lawyers, should be deemed to have taken the same to be notices of enhancement of sentence to any kind provided for the offence and there was

no scope at all for any misunderstanding that since there was a fine so the enhancement would be confined to fine only and on no account can it be

converted into a sentence of imprisonment.

To appreciate the respective contentions of the parties, some facts need be stated and extracts from documents quoted. The operative portion of

the judgment passed by the learned Sessions Judge while disposing of the appeals is in the following terms, almost in all cases:

xx xx xx xx

The statute having prescribed the minimum punishment of a fine of Rs. 1, 000/- for the offence, the learned A.D.M. should not have awarded a

consolidated sentence of fine of Rs. 2, 000/- for all the three offences against each of the Appellate. Such a sentence is illegal in as much as the

provisions of Section 367(2). Code of Criminal Procedure are not complied with. While, therefore, maintaining the convictions of both the

Appellants I would set aside the consolidated sentence of fine and recommend to the Hon''ble High Court to pass appropriate sentences.

In the forwarding letter to the Court, the Sessions Judge, Cuttack stated the same thing thus:

xx xx xx xx

The statute prescribes the minimum punishment of a fine of Rs. 1, 000/- for the offence. On appeal I have upheld the conviction, and setting aside

the consolidated fine of Rs. 2,000/-, I recommend that the Hon''ble Court may be pleased to pass appropriate sentences for the three offences

separately against each of the accused.

The records submitted herewith may kindly be placed before the Hon''ble Court for enhancement of the sentence.

These references were numbered as Criminal Reference Nos. 13 to 21 of 1972. In Criminal Reference Nos. 13 and 14 of 1972, two

independent orders were passed by Justice R.N. Misra. The intial order passed in Criminal Reference No. 13 of 1972 runs thus:

Admit. Issue notice fixing 20-3-1972 for appearance. The acceptance of the reference may have the effect of enhancement of the sentence. Let

clear notice be given to show cause against enhancement of sentence.

Paper book be prepared.

In Criminal Reference No. 14 of 1972, the same order was repeated except the second sentence and in other references it was a ""vide order in

Criminal Reference No. 14 of 1972"".

In pursuance of this order notices were issued from the Deputy Registrar to the A.D.M.O. in printed Form No. 138 and then to the parties in all

the Reference Cases in the following words:

Court of A.D.M. Judl., cuttack

Notice

Ref :-Criminal Reference No. 13 of 1972.

To

M/s. Abdul Shakoor Umar Sahigara & Company, Merchants, Malgodown, Cuttack-3.

Abdul Gaffar Haji Mohammad Mithani s/o Haji Mohammad Mithani, Malgodown, Cuttack-3.

Take notice that the above noted Criminal References case arising out of Criminal Appeal No. 254C of 1970, preferred by you has been fixed to

20-3-1972 before the Hon''ble High Court, Orissa, Cuttack. You are directed to appear and show cause through your Advocate before the

Hon''ble Court on the above date at 10-30 a.m. as to why the sentence inflicted on you shall not be enhanced. Failing to show cause, the matter

shall be heard in your absence.

Sd. Illegible 19-2-1972 A.D.M. Judl. Cuttack.

Be it stated here that against the punishment inflicted by the trying Court there was no appeal by Government nor any enhancement notice

given from this Court in the Criminal Revisions filed by the parties.

Since Mr. Parida contended that there is no difference between a notice issued from this Court in a Criminal Revision and a notice given in a

Criminal Reference, for my satisfaction, I called for a sample record where enhancement notice had been issued in a revision case. The office

furnished Criminal Revision No. 190 of 1973, Gopinath Tripathy v. State of Orissa. While admitting it, Justice R.N. Misra passed the following

order:

Admit. Issue notice of enhancement to the Petitioner, to show cause as to why the sentence may not be enhance to a period of at least one year''s

rigorous imprisonment.

Stay realisation of fine. The Petitioner be released on bail to the satisfaction of the trial Court. The bail amount is fixed at Rs. 2, 000/- with 2

sureties of the like amount.

(Vide order 2 dated 27-4-1973).

The enhancement notice that was given by the Deputy Registrar to the A.D.M. (sic) in pursuance of that order is in printed form No. 168. In that a

further endorsement in hand by the office is made to the following effect:

Notices should be issued to the Petitioner Gopinath Tripathy, to show cause why the sentence passed by the S.D.M., Boudh in G.R. Case No.

152/66 on 7-9-1971 and modified by the Sessions Judge, Ganjam-Boudh, Berhampur in Cr. A. No. 66/71(B) on 6-4-1973 should not be

enhanced to a period of at least one year''s R.I. and the S.R. thereof be sent to this Court before the date fixed.

Sd. B. N. Misra Depu ty Registra 26-6.

From the above quotations it would be evident that a notice in Form No. 68 issued at the time when enhancement of sentence is contemplated in a

revision is basically different from the one sent in a Criminal Reference Case in Form No. 138. The Hon''ble Judge while accepting the Reference

has clearly stated that ""the acceptance of the reference may have the Reffect of enhancement of sentence. Let clear notice be given to show cause

against enhancement of sentence"". In it, there is no indication as to how the enhancement will work out; i.e. whether the fine will be increased or it

may be converted into one of imprisonment. Accordingly, the direction to the A.D.M. (J.) also did not indicate anything of the nature as has been

done in case of a direction to the A.D.M. (J) issued in the Criminal Revision quoted above.

Basing on these, Mr. Patnaik contended that neither the parties nor their lawyers ever took it that the notices were comprehensive notices

which would include enhancement of sentence by way of converting the fine into imprisonment. Therefore the arguments for the Petitioners

proceeded on the footing that, the recommendation of the learned Sessions Judge was that the inappropriate sentence passed will be regularised

by imposing a fine of at least rupees one thousand for each offence. In fact also no submissions were made in respect of non-infliction of a

substantive imprisonment. Be that as it may, the question for consideration is if the present notice (all notices being identical in nature) is likely to

create an impression in the mind of any average man that it was a limited notice and not a comprehensive one. From the basic difference between

the two notices quoted above, it cannot be said that a man of ordinary prudence would not take the notice to be a limited one. If such a notice

appears to be vague and confusing or if it admits of two interpretations, namely, it may be ''limited'' or it may be ''comprehensive'', then the one

favourable for the accused has to be accepted. To conclude therefore I would hold that the notice in this case is a limited one for regularising the

fine imposed which was less than the minimum provided under the act. This necessarily leads to the question whether a comprehensive notice

cannot be given now. The counsel for the Petitioners conceded that the Court has ample power to do so. However, he submitted that in the facts

and circumstances of the case, in the absence of any aggravating and compelling circumstances for imposition of substantive imprisonment issue of

any such notices not warranted. In support of his stand, my attention was drawn to various authorities touching on the point. It is unnecessary to

refer to cite all of them. However, reference may be made to a few. ""The question of sentence is normally in the discretion of the trial Judge. It is

for the trial Judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case. The

High Court undoubtedly has jurisdiction to enhance such sentence u/s 439 of the Code of Criminal Procedure, but this jurisdiction can be properly

exercised only if the High Court is satisfied that the sentence imposed by the trial Judge is unduly lenient, or that in passing the order of sentence,

the trial Judge had manifestly failed to consider the relevant facts Alamgir and Another Vs. The State of Bihar, . There is no doubt that the sentence

is a matter of discretion which has to be exercised in a judicial way, that is to say, the sentence imposed by the trial Court should not be lightly

interfered with and should not b enhanced unless the Appellate Court comes to the conclusion, on a consideration of the entire circumstances

disclosed in the evidence, that the sentence imposed is inadequate Sarjug Rai and Others Vs. The State of Bihar, .

A question of sentence is a matter of discretion and it is well settled that when, discretion has been properly exercised along accepted judicial lines,

an Appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face

of the judgment : see for example the observations in Dalip Singh and Others Vs. State of Punjab, , Nar Singh and Another Vs. The State of Uttar

Pradesh, .

No sentence should ever appear to be vindictive. If the law permits a sentence of fine as an alternative, there is no need of a sentence of

imprisonment, unless of course the gravity of the offence or the antecedents of the offender demand it. First and/or youthful offenders should

invariably be treated leniently, and in applying provisions of law like the First Offenders Probation Act or Section 562, Code of Criminal

Procedure it would be better for the Court to err on the side of liberality. x x x x x

The Criminal Court must draw a distinction between acts which are universally acknowledged as ""crimes"" and those which were previously lawful

but have been made unlawful by virtue of recent legislation of a social or economic character designed to further the country''s advance towards its

goal of a Welfare State. The Court should also bear in mind how long-ago the previously lawful act was made an offence, and whether or not such

an act is an offence in other parts of the country, see Dulla and Ors. v. State AIR 198 All 198.

In the instant case, as I have observed in my judgment dated 7-5-1973 all forward contracts are not condemnable. Forward contracts in

groundnut oil was the usual traditional transaction until 1965 when by notification it was brought under the purview of the act and become an

offence. Thus it is notification only that was created forward contracts in ground nut oil as an offence. Record shows that some times a ban was put

on forward contracts in groundnut oil and some times it was lifted. So it was contended on behalf of the Petitioner at the time of trial that they were

not aware of the notification for which the trying Court had taken a lenient view. Over the dictum ignorance of law is no excuse there is a significant

passage appearing in P.V. Devassy v. Commissioner of Income Tax 1972 Tax L.R. 75, which indicates the present trend thus:

Public policy requires that ignorance of law should be no excuse. But there is no presumption that everybody knows the law, though it is often so

stated.

Sometimes it is said that every man is presumed to know the law, but this is only a slovenly way of stating the truth that ignorance of the law is not

in general an excuse. (See ''A First Book of Jurisprudence'' by Pollock, at page 163).

In Martindale v. Falkner (1846) 135 E.R. 1124, Maule J., said:

There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so.

In ''Criminal Law'' by Glanville Williams, at page 385 it is stated:

The view that everyone is presumed to know the law is now generally rejected; it is not a true proposition of law, and even if it were, it would only

be a legal fiction, not a moral justification. Lord Mansfield drily observed that it would be very hard upon the profession, if the law was so certain,

that everybody knew it; and Maule J., is credited with the observation ''that everybody is presumed to know the law except his Magesty''s Judges,

who have a Court of Appeal set over them to put them right''. The idea that the law can be known by everyone is today, in the ''planned'' and

''welfare'' state, more ludicrous than ever.

Evidently the impugned transactions are not by their very nature ante-social. The legislature, in its wisdom therefore has not imposed any

substantive imprisonment for the first offender but has fixed a minimum fine of Rs. 1,000/-. Even Prevention of Food Adulteration Act which is

inherently ante-social and imposes a penalty of not less than six months and with fine which shall not be less than one thousand rupees has not been

viewed with such seriousness as to be excluded from the operation of the Probation of Offenders Act, 1958 though Prevention of Corruption Act

of 1947 has been made so. It follows therefore that even the case of the Petitioners could have been considered under Probation of Offenders Act

if it had been raised at the right time. It is admitted that the Petitioners without any bad antecedents and they have been booked for the first time

under this Act. The beneficiary in these transactions are the Firms on which no substantive imprisonment could be nor has been inflicted. The

learned Counsel for the State could not cite any authority either reported or unreported to show if substantive imprisonment has been awarded in

case of the first offenders of this kind. He could neither point out any aggravating circumstances justifying a condign punishment. In view of all these

and in view of the decisions referred to above that favour ""a liberal view to be much compatible with the modern criminology that does not

encourage the imposition of severe or savage sentences against criminals, because the deterrent or punitive aspect of punishment is no longer

treated as a valid consideration in the administration of criminal law"". I would recall my previous orders dated 7-5-1973 imposing substantive

sentence of imprisonment of six months R.I. on the Petitioners in Criminal Reference Nos. 13 and 15 to 21 of 1972 and imposed a fine of Rs.

3,900/- on each of the Petitioners at the rate of Rs. 1,300/- for each offence in default to undergo R.I. for six months.

This order will govern all the Criminal Misc. Cases Nos. 131 to 138 of 1973 which arise out of Criminal Reference Nos. 13 and 15 to 21 of

1972.

Petitions are allowed to the extent indicated above.