STATE OF U.P. Vs. KIRORI MAL

JUDGEMENT

(1.) KIRORI Mal, the Respondent in this appeal, was tried by the learned City Magistrate, Meerut, Under Section 7 of the Essential Commodities Act for contravention of U.P. Food -grains Dealers Licensing Order, 1964, the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958 -hereinafter referred to as the 1958 Order and Interzonal Wheat and Wheat Products (Movement Control) Order, 1964. The trial Magistrate found Kirori Mal guilty of having committed breach of the U.P. Foodgrains Dealers Licensing Order, 1964 and the 1958 Order. He was found not to have committed a contravention of the Interzonal Wheat and Wheat Products (Movement Control) Order, 1964. For contravention of the two Orders of which he was found to have committed a breach, Kirori Mal was convicted Under Section 7 of the Essential Commodities Act and was sentenced to pay a fine of Rs. 1000/ -. The learned City Magistrate ordered that in default of payment of fine, Kirori Mal shall undergo rigorous imprisonment for a period of three months. Kirori Mal preferred an appeal against his conviction and sentence. The learned Sessions Judge, Meerut, who heard the appeal, held that it had not been proved that the convict -Appellant before him had committed a breach either of paragraph 3 of the U.P. Foodgrains Licensing Order, 1964 or of paragraph 3 of the 1958 Order. The court below consequently allowed the appeal and set aside the conviction and sentence of Kirori Mal by its judgment and Order dated 24th May, 1968. Aggrieved by the acquittal, the State Government has appealed.

(2.) THE last day of limitation for filing the appeal was the 24th August, 1968, which was a Saturday when the Court did not sit. The appeal was presented after Court hours at the residence of the Registrar of the Court on the 23rd August, 1968. A preliminary objection has been raised by Sri D.P. Mittal, learned Counsel for Kirori Mai, that the appeal preferred by the State against the judgment of acquittal not having been presented within the period of limitation in accordance with Rule 1 of Ch. XVIII Part III of the Rules of Court, its admission after the expiry of the period of limitation was illegal and the appeal was not maintainable. He placed reliance on the judgment of S. Malik, J. dated 6th December, 1971 in State v. Amrik Singh G.A. No. 2025 of 1968 connected with G.As. Nos. 2026 to 2029 and 2033 of 1968. In G.A. No. 370 of 1969, Jag Mohan Lal Sinha, J. was inclined to differ from the view of Section Malik, J. in the cases relied on by Sri Mittal and consequently referred to a larger Bench the following two questions:

(3.) ACCORDING to Sri Mittal if the State counsel had retained the memorandum of appeal with him for a few hours more and had presented it before the Registrar a few seconds after the midnight hour had struck between the 23rd and 24th August, 1968, the presentation of the appeal would have been in order but merely because it was presented a few hours earlier its presentation before the Registrar is incompetent and illegal. Rules of procedure are meant to advance justice and a too technical approach which might tend to defeat that purpose must, in our opinion, be avoided. It was open to the Registrar to refuse to accept the memorandum of appeal when it was presented before him and to inform the State -Appellant that it should be presented to him after 1200 P.M. on the night intervening the 23rd and 24th August, 1968. He, however, did not do so. In our opinion, the Registrar, retained with him the memorandum of appeal till 12 P.M. of the night of the 23rd August, 1968, as an agent of the Appellant -State and immediately after midnight the appeal came to be in his possession in his capacity as the Registrar of the Court. In this view of the matter, we unhesitatingly reject the submission made by the learned Counsel for the Respondent.