PRADEEP RAMSUBHAG TIWARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has preferred the present appeal challenging the legality and validity of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.17, Ahmedabad City, on 17th June, 2005, whereby the appellant-accused has been held guilty of the charge of offence punishable under Section 394 read with Section 34 and under Section 397 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/-, in default of making payment of fine, to undergo simple imprisonment for one month. The appellant-accused has been also held guilty for the charge of offence punishable under Section 135 of the Bombay Police Act but no separate sentence was awarded for the said offence. The appellant was also given the benefit of set off the period during which he was remained in judicial custody.

(2.) On careful reading of the operative part of the impugned judgment and order, it appears that there is some confusion as to the scheme of Sections 394 and 397 of the Indian Penal Code in the mind of the learned trial Judge, but considering the settled legal position, it is possible for this Court to say that no sentence was required to be awarded to the appellant-accused for the offence punishable under Section 394 of the Indian Penal Code being a minor offence than the offence punishable under Section 397 of the Indian Penal Code. As such, in the entire impugned judgment and order there is no discussion as to publication of Notification which requires to be published under the Bombay Police Act. None of the Police Officer has stated in their deposition that Notification under Section 37 (1) of the Bombay Police Act was published or it was properly published. Even, neither a copy of such Notification was put on record so there was no scope for the learned trial Judge to held the accused guilty of the charge of offence punishable under Section 135 of the Bombay Police Act or in not making distinction between the two offences, that is, offence punishable under Section 394 and under Section 397 of the Indian Penal Code. However, it would not make the ultimate order of conviction either bad or illegal and this Court while exercising powers vested with it under the provisions of Section 384 read with Section 386 of the Code of Criminal Procedure can appreciate and / or re-appreciate the evidence and decide as to whether the prosecution has successfully established any of the charges that were framed against the accused.

(3.) To appreciate the rival side contention, it would be beneficial to state the case of prosecution in brief and for this purpose the Court is inclined to reproduce the relevant part of the charge that was framed against the appellant-accused because the same is the substratum of the case of prosecution.