COMMANDANT 20 BN ITB POLICE Vs. SANJAY BINJOLA

JUDGEMENT

(1.) Leave granted.

(2.) The respondent, who was a constable of Indo-Tibetan Border Police, was found over-drunk on 26th November, 1992 and absent at the time of the roll-call. It was alleged that under the influence of liquor he entered the house of Commandant of the Battalion and thus committed the offence punishable under Section 16(2) of the Central Reserve Police Force Act, 1949 (hereinafter called "the Act"), by which he was admittedly governed. Upon trial, the Commandant of the Battalion who was also having the powers of the Magistrate of First Class convicted the respondent under Section 10(n) of the Act and sentenced him to imprisonment for a period of three months. Aggrieved by the order of conviction and sentence, the respondent filed an appeal which was disposed of by the Additional Sessions Judge, XII, Bareilly upholding his conviction but modifying the sentence to the extent of till the rising of the Court. The appellate Court further directed that "this order shall not adversely affect the service career of the accused".

(3.) Aggrieved by the order of the appellate Court, the appellant herein filed revision petition in the High Court submitting that the learned Sessions Judge could not have passed the order directing that the conviction and sentence awarded to the respondent would not affect his service career, as after conviction and sentence, it was for the appellate authorities to take or not to take any appropriate consequential action but the criminal Court had no powers to issue the impugned directions. Relying upon Clause (e) of Section 386 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), the High Court held that the appellate Court had the power to pass the impugned order. Not satisfied with the order of the High Court, the present appeal has been filed mainly on the ground that the appellate as well as the revisional Court had no jurisdiction to direct that the conviction and sentence awarded to the respondent would not adversely affect his service career. It is contended that the provisions of Section 386 of the Code have wrongly been applied by the High Court vide the judgment impugned.