V.C. Jain vs State

M. Wahajuddin, J.—The applicant on being convicted u/s 9(i)(a)(b)(bb) of the Central Excise and Salt Act was released by the trial court u/s 4 of First Offenders Act on personal bond and two sureties. The applicant did not prefer any appeal against such conviction and sentence. The State preferred a Revision No. 1160 of 1983 against the sentence and the revisionar court vide its order and judgment dated 9-12-1983 set aside the order of the Magistrate granting probation and remanded the case to the trial court directing that court to pass sentence according to law having in mind the provision of Section 9-E of the Central Excise Act. The applicant has come forward with a prayer for quashing the entire proceedings. I may at the very outset observe that when a remedy of appeal against the conviction was available and no appeal was preferred against the conviction which was not assailed as such, this Court cannot entertain any arguments on the merits of conviction as such nor inherent powers can be exercised on that score on the grounds urged.

The next point urged is that the revisional court should have directed retrial or in any case it should have awarded a sentence itself instead of remanding the case to the Magistrate for awarding proper sentence in accordance with law. The revisional court could not have directed a retrial when any appeal assailing the conviction was not preferred nor the conviction was challenged. The revisional court was concerned with a limited question of sentence alone on account of State having filed a revision for alteration of the sentence. The revisional court, once revision is entertained, is vested with the jurisdiction to pass any orders concerning the sentence. In fact, the applicant has been by the impugned order placed on an advantageous position. After sentence is passed he can well avail the remedy of appeal or revision as the case may be. If the revisional court had itself imposed any sentence that opportunity before the Sessions Judge would not have been available, I do not find any illegality or irregularity in the order remanding the case to the trial court for awarding a proper sentence in accordance with law. There is also a direct authority of this Court, namely, State of U.P. v. D. M. Shukla 1982 ACR 15. In that case also the benefit u/s 4 of the U.P. First Offenders Probation Act was given by the trial court. The Sessions Judge disagreeing with the trial court on matter of sentence namely the benefit accorded u/s 4 of the U.P. First Offenders Act, made a reference in revision. It was held that it is proper to send back the case to the trial court which may award suitable sentence to the accused because then accused would have a right to appeal. The case was remanded back by this Court to the Additional Sessions Judge. This authority is in all force and I do not find any force in the argument that the revisional court was wrong in remanding the case to the trial court for the purposes of awarding suitable sentence.

The applicant should not have rushed to this Court unnecessary u/s 482 Code of Criminal Procedure. I may observe that intervention u/s 482 Code of Criminal Procedure is not favoured if the trial is at its fag end and it is also the view of the Supreme Court. The present case stands on a worst footing. The applicant did not avail of the remedy of appeal available to him against the order of conviction. When that is the position, and the revisional court has sent back the case to the trial court to award suitable sentence, the applicant can have no genuine grievance at this stage nor would the application u/s 482 Code of Criminal Procedure be entertained on the merits of the conviction as such. The applicant will have his remedy after the trial court has complied with the orders of the remand and passed any sentence. I have not discussed the case on merits because I am of the view that no interference u/s 482 Code of Criminal Procedure can be made when conviction was not challenged inspite of remedy of appeal being available. The application u/s 482 Code of Criminal Procedure is therefore, rejected.