The State of Uttar Pradesh v. Shawkar and Another

Kapur J. ?11Rt. .Mithana who was not agreeable to his

ad vanecs. In order to take his revenge he cut off her nose on January 28, l!J59. The allegation againat the other respondent Goberdhan was that he helped Shanker in foll ing her down and ca,ught her while Shankt•r cut off her nose. Both tho respon-dents were tried under s. 326 read with s. :J4 of the Indian Penal Code and the i\Iagistrate Ist class found them guilty and sentenced them to rigorous imprisonment for 18 months each. An appE>al was taken against this order to the Ressions Judge, Sitapur, who on June 12, HJ59, set aside the order of convicti<m and directed the case to be committed to the Court of Session. On ,July 15, 19;)9, the J.Iagistrate committed the respondents to the court of Session to stand their trial under s. 3~6 read with s. 34 of the Indian Penal Code. A revision was taken to the High Court against the order of the Sessions Judge.

The High Court held that the crime was not only brutal but most cowardly and that the offence was of a grave nature; that the Magistrato was wrong in assuming jurisdiction in such & case and that the cutting of a woman's no8e was troatod as a trivial matter by the .Magi8tratc. The learned Judge, however, was of the opinion that a Scs8ion Judge bearing an appeal against conviction had no power to direct commitment to the court of Session; all that he could do was to recommend enhance-ment of the sentence but it was not worthwhile enhancing tho sent.enc" because tho enhancement could only Le from 18 months to two years. He thereforo allowed the revision and set aHide the order of tho Ses:;ions Judge aud directed that the appeal be reheard on merits. .Against thi~ order the State has come in appeal to this Court Ly Special Leave. It m:i,y be mentioned that on an 1962 application made to ·the learned Judge under Tht Stale of s. 561A Criminal Procedure Code, the learned Judge, Uttar Pradesh v. after referring to several decided cases, was still of Shankar the opinion that his previous order was correct and he declined to give a certificate under Art. 134(1) Kapur J. (c) and the State has come in appeal by Special Leave. It is not necessary to decide the question whether the application under s.561 A was enter-tainable in the circumstances of the care.

Section 423 of the Criminal Procedure Code deals with the power of the Appellate Court in disposing of appeals against convictions. The relevant portion of the section is contained in cl.(b) of sub-s.(l) of that section which is as followsi-S. "423 ( 1) The Appell:ite Court shall then send for

the record of the case, if such record is not already in Court. After perusing such record and hearing tbe appellant or his pleader, if he appears and the Public Prosecutor if he appears, and, in case of an appeal under section 411A, sub-section (2). or section 417 the accused, if he appears, the Court may, if it considers that there is no sufficient ground for inter-fering, dismiss the appeal, or may- (a) ..................................... : ................ .

(b) in an appeal from a conviction, (1)

reverse the finding and sentence, and · acquit or discharge the accused, or order . him to be retried by a Court of competent

jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without .altering the finding, reduce the sentence, or, (3) with or with-out such reduction and with or without

2i6 SUPRE~IE COURT REPORTS [1962] SUPP.

19i2 altering the finding, alter the nature of T11e s1.1, •I the sentence, but, subject to the provisions Utt•r l)rWsh of section 106, sub-section (3), not so as

•• to enhance tho same".

Sli1n/;u

The Code .eipressly gives the power t.o the Appellate Court to dismiss the appeal, to acquit or discharge the accusc<l or order him to be retried or committe<l for trial. Therefore the section does empower the Appellate Court to order oommitment for trial to tho Court of Session. The Court~ in India havo almost unanimously held that to be the interpretation of the section. In Queen Empress v. Abd·ul Rahinwn (')whore tho circumstances were almost similar as tho one in tho present case, it was held that s. 423( b) which is the oorresponding section of tho Code of 1882 empowered an Appellate Court to order an accused person to be committed for trial. That was aleo the view of the Allahabad High Court in Queen Einpre,.~s v . . Maula Baksh.(') In an earlier case Qua>n Empres8 v. Suk!UJ('), All1ihabad High Court held that under s. 42:~ of the Code a commitment could bo ordered only when an offence wa1:1 exclusively triable by a court of ::ie~ion. That view wao overruled in the later Allahabad caso Q·ueen Empress v. Maula Baksh(') and was not accepted in the Bombay case above quoted. It is • not necessary to refer to c&&es decided by other

Courts where it ha~ been held that the power to order commitment under s. 423(1) (b) is not limited to cases exclusively triable by the court of Session. In Satish Chander U"'8 Bose v. Queen Empress(') and other c&Sea of the High Court ol Alla.ha.bad the earlier view in Suklw:B case was not accepted. In our opinion the words of s. 423 (I) (b) of the Code a.re quite clear and the power of the

(I) (1891) I. L. R. 16. Bom. 58-0. (2) [1893] l. I.. R. 15 All. 205.

(3) (1885) I. L. R. 8. AIL 14. (4) (1899) l.L.R. 27 DJ. 172.

Appellate Court to commit is not ci.rcumscribed to 19!2 oases oxclusively triable b5 a court of Session and T/,, 81atnf the High Court was in error in taking a contrary Uttar Pradesh view. v. Shonk., We therefore allow this appeal, set aside the K•ftur J. order of the High Court and restore that of the Sessions J utlge.

Appwl allowed.

BALJEET SINGH & OTHERS

1963 v.

RISAL SINGH & OTHERS

(B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR and

RAGHUBAR DAY.AL, JJ.)

Civil Procedure-Res judicata-Twelve suits against four sets of defenda .. ts-Decreed by common judgment-Twelve app<als-Appeals by one set of defendants dismissed for default-Whether other appeals barred-Appeals to Supreme Court-Consolidation Operations-If make appeals infructuous-U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).

K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under s. 175 U. P. ~renancy. Act, 1939. Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees wCre prepared and the defendants preferred twelve appeals to the Additional Commissioner. Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1~55, special leave was granted. In July 1954, the villages in which the lands in suit were situate came under consolidation operations onder the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification