V C JAIN Vs. STATE

JUDGEMENT

(1.) THE applicant on being convicted under section 9 (i) (a), (b) (bb) of the Central Excise and Salt Act was released by the trial court under section 4 of First Offenders Act on personal bond and two sureties. THE applicant did not prefer any appeal against such conviction and sentence. THE State preferred a Revision No. 1160 of 1983 against the sentence and the revisional court vide its order and judgment dated 9-12-1983 set aside the order of the Magistrate granting probation and remanded the case to the trial court directing that court to pass sentence according to law having in mind the provision of section 9-E of the Central Excise Act. THE applicant has come forward with a prayer for quashing the entire proceedings. I may at the very outset observe that when a remedy of appeal against the conviction was available and no appeal was preferred - against the conviction which was not assailed as such, this Court cannot entertain any arguments on the merits of conviction as such nor inherent powers can be exercised on that score on the grounds urged.

(2.) THE next point urged is that the revisional court should have directed retrial or in any case it should have awarded a sentence itself instead of remanding the case to the Magistrate for awarding proper sentence in accordance with law. THE revisional court could not have directed a retrial when any appeal assailing the conviction was not preferred nor the conviction was challenged. THE revisional court was concerned with a limited question of sentence alone on account of State having filed a revision for alteration of the sentence. THE revisional court, once revision is entertained, is vested with the jurisdiction to pass any orders concerning the sentence. In fact, the applicant has been by the impugned order placed on an advantageous position. After sentence is passed he can well avail the remedy of appeal or revision as the case may be. If the revisional court had itself imposed any sentence that opportunity before the Sessions Judge would not have been available, I do not find any illegality or irregularity in the order remanding the case to the trial court for awarding a proper sentence in accordance with law. THEre is also a direct authority of this Court, namely, State of U. P. v. D. M. Shukla, 1982 ACrR 15. In that case also the benefit under section 4 of the U. P. First Offenders Probation Act was given by the trial court. THE Sessions Judge disagreeing with the trial court on matter of sentence namely the benefit accorded under section 4 of the U. P. First Offenders Act, made a reference in revision. It was held that it is proper to send back the case to the trial court which may award suitable sentence to the accused because then accused would have a right to appeal. THE case was remanded back by this Court to the Additional Sessions Judge. This authority is in all force and I do not find any force in the argument that the revisional court was wrong in remanding the case to the trial court for the purposes of awarding suitable sentence.