MANI Vs. STATE

JUDGEMENT

(1.) THE revision petitioners are accused 2 to 5. THEy along with the 1st accused, were prosecuted for offences falling under S. 332, 342, & 426 read with S. 34 IPC. and also under S. 46 (2) of the Kerala general Sales Tax Act, pw. 4 the Intelligence Officer of the Sales Tax department with pws. 1 and 2 the Intelligence Inspectors and pw. 3 the peon, on 512 69 entered the medical shop known by the trade name "zaas agencies", Kottayam for inspecting the accounts of the shop. In the absence of the proprietor of the shop, the 5th accused was in temporary management. THE 1st accused the accountant, the 2nd accused the compounder and accused 3 and 4 the salesmen were then present in the shop It is stated that the accused refused to place the account books before them for inspection. pw. 4 thereupon proceeded to the West Police Station, Kottayam to seek police help. He had instructed pws. 1 to 3 to keep watch over the place and see that the account books were not removed from the shop. It is alleged that on pw. 4 leaving the place, the 1st accused attempted to remove the account books and on being resisted by pws,1 to 3, a scuffle ensued resulting in minor injuries on the person of pws. 1 and 2. It is also the case of the prosecution that accused 2 and 4 prevented pw. 1 from proceeding further, and actually kept him in wrongful confinement. pw. 2 was kept in wrongful confinement by the 5th accused and pw. 3 was similarly confined by the 3rd accused. THE charge was denied by the accused. THE learned District Magistrate convicted the accused under S. 332 and 342 IPC. and sentenced them each to R. I. for 3months. THEy were also convicted under S. 426 IPC. , and sentenced to a fine of Rs. 100/-each. A further conviction was entered under S. 46 (2) of the Kerala General Sales Tax Act; but no separate sentence was passed thereunder. On appeal the learned Sessions judge of Kottayam acquitted the accused of the charge under S. 332 and 426 IPC. , and confirmed the conviction and sentence of accused Nos. 2 to 5 under S. 342 ipc. THE 1st accused was acquitted of the charge under S. 342 IPC. THE conviction of accused 1 to 5 under S. 46 (2) of the General Sales Tax Act was confirmed and a sentence of a fine of Rs. 250/-each was imposed on the accused.

(2.) THE first point argued before me by the learned counsel was that the learned appellate judge has acted without jurisdiction in, imposing a sentence under S. 56 (2) of the General Sales Tax Act, when no sentence thereunder was passed by the trial Magistrate. S. 423 Cr. PC. deals with the powers of the appellate court, in disposing of appeals. Sub-section (1) (b) of S. 423, which is the relevant for the present purpose reads: