MUKAND LAL Vs. STATE

JUDGEMENT

(1.) THIS is a revision arising from a conviction under Section 7 read with Section 16 of the Prevention of Food Adulteration Act in which the petitioner was sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000/ -. The revision has come to this Court after the learned Additional Sessions Judge has held that the appeal filed by the petitioner was barred by time and accordingly no relief was given by the Additional Sessions Judge. In order to appreciate the question of limitation it is necessary to deal with the history of the case because, as will be apparent, this was not the first time the petitioner had come in appeal to the Additional Sessions Judge.

(2.) THE petitioner was initially convicted by Shri J. D. Kapur, Metropolitan Magistrate and on appeal which was Crl. A. 17 of 1976 before Shri P. K. Bahri, Additional Sessions Judge, Delhi, it was urged that there had been non -compliance with the provisions requiring the accused to be heard on the question of sentence. The decision of the Supreme Court in Santa Singh v. The State of Punjab, AIR 1976 SC 2386 : (1976 Cri LJ 1875), was referred and this contention was accepted by the learned Additional Sessions Judge who remanded the case to the lower court after setting aside the sentence and directed the lower court to afford an opportunity of hearing in terms of Section 235(2) in the light of the Supreme Court's judgment. It was further said as follows: - "It is, however, made clear that after the proper sentences have been awarded after affording necessary opportunity of hearing, the appellant would be at liberty to file a fresh appeal challenging his conviction and the sentence." After the remand the Metropolitan Magistrate passed an order on 20.9.1976. He said that he did not find any good ground for deviating from the original sentence passed against the accused and in effect affirmed his previous judgment. The petitioner then appealed again and the appeal was heard by Shri K. B. Andley, Additional Sessions Judge, Delhi. The appeal was filed without a certified copy but later the certified copy of the order dated 20.9.1976 was filed. A preliminary objection regarding the appeal was raised on the footing that the appeal should have been accompanied by the earlier judgment of the Magistrate. In fact, the contention raised was that the original judgment dated 15.1.1976 was the judgment by which the petitioner was convicted and sentenced and although the sentence was set aside on appeal by the order of Shri P.K. Bahri, Addl. Sessions Judge, passed on 1.9.1976 the conviction remained and the second order merely affirmed the original period of sentence. It was, thus urged that in order to have a properly constituted appeal before the Additional Sessions Judge it was necessary for the accused to file a certified copy of the original judgment as well as the judgment passed after remand. This point had been accepted by the learned Additional Sessions Judge and it has been held that the appeal is improper and, therefore, barred by limitation. Against this order this revision has been brought to this Court.

(3.) THE problem which has now to be dealt with is whether this view of the Additional Sessions Judge is correct and if not what is the proper decision in law. I may at once say that the point is an unusual one and could never have arisen but for the remand by Shri P. K. Bahri, Addl. Sessions Judge, by the order dated 1 -9 -76. Normally, in a criminal case the Appellate Court has no power to remand to the trial Court except for the purpose of retrial. Hence, the remand was in a sense irregular. However, assuming the remand to be perfectly in order because in any case no harm is caused by the same it has still to be seen what was the order required to be filed along with the appeal filed against the order dated 20.9.1976. For answering this question reference is required to some provisions of the Criminal Procedure Code. The provisions of Section 382 are to the effect that every appeal shall be in writing etc. and shall be accompanied, unless dispensed with, by a copy of the judgment or order appealed against. The question here is which is this copy which he has to file. It may be said that the petitioner is aggrieved not only by the order fixing or rather re -fixing the sentence which was passed on 20 -9 -76 but he is also aggrieved by the original order which was passed on 15 -1 -76 whereby he was convicted. It can, therefore, be said that he should file copies of both judgments, On the other hand, it can be said that he had already appealed against the order dated 15 -1 -76 and that appeal had proved to be successful in the sense that the order of conviction was set aside and the case was remanded back for giving another decision even though that decision may be restricted to sentence only. In any case, if there was no judgment on 20.9.1976 the petitioner need not have filed any appeal because, by the decision of Shri P. K. Bahri, the sentence part of the original judgment had disappeared and the conviction without a sentence was ineffective. I am of the view that when the appeal had been accepted, the original judgment must be deemed to have become ineffective and inoperative. The effect of the judgment passed on 20.9.1976 re -imposing the sentence on the petitioner had the effect of reviving both the conviction as well as the sentenly, and whether such an act on the part of the passenger was fraught with danger; and lastly, whether a conclusion was inevitable that he received the injury as a result of his own lack of care and positive negligence on his part. Secondly, a question may also be asked as to whether the accident resulting in the injuries to the passenger was the result of contemporaneous negligence on the part of the passenger as well as the driver or drivers of the vehicles concerned. In this connection it has to be borne in mind that primarily the drivers owe a duty of safety to such passengers which consists of driving the vehicle slowly with care and caution, while crossing each other and not to bring their respective vehicles very close to each other so that any such passenger who is sitting with his arm or any part of his body resting on the window sill or the window rail or sitting in such a way that it protrudes therefrom, does not get hurt when the vehicles cross each other. F. A. No. 74 of 1969, D/ -2.2.1973 (Guj), 1966 ACJ 42 (SC) and AIR 1974 Madh Pra 68, Foll. [Para 11]