PHOOL CHAND SHAW Vs. STATE

JUDGEMENT

(1.) In Criminal Appeal No. 154 of 1974 Phool Chand Shaw is the sole appellant. In Criminal Appeal No. 155 of 1974 the appellants are four in number namely, Mahadeb Jaiswal Basudeb Jaiswal, Rajdeo Jaiswal and Ramchandra Jaiswal. The appellant were tried in Sessions Trial No. 1 of March, 1974 before the 10th Bench, City Sessions Court, Calcutta by a jury. All the five accused were tried for offences under Sec. 147 Penal Code. and under Sec. 326 read with Sec. 34 I.P.C. Ramchandra Jaiswal was in addition tried for an offence under Sec. 323 I.P.C. Accepting the verdict of the jury the learned Sessions Judge found all the five accused guilty of the offence under Sec. 147 I.P.C. and sentenced them to R.I. for six months each. The learned Sessions Judge found all the five accused guilty of the offence Wider Sec. 326 read with Sec. 34 I.P.C. and sentenced each of the accused to R.I. for four years and to pay a fine of Rs. 1000.00 each in default to R.I. for four years and to pay a fine of Rs. 1000.00 each in default to R.I. for six months. For the offence under Sec. 323 I.P.C. Ramchandra Jaiswal was sentenced to suffer R.I. for one month on his conviction for the said offence. The sentences imposed are to run concurrently.

(2.) As the trial was by jury an important point regarding the manner of exercise of appellate power by this appellate Court arises for our consideration at the very outset. The point arises in this way. The order of conviction and sentence was passed on 28.3.74. The Code Criminal Procedure 1973 came into force on and from 1.4.74. The appeals under consideration were filed on a subsequent date, namely, 23.4.74. By sub-section (1) of Sec. 484 of the Cr. P.C. 1973 the Code of Criminal Procedure 1898 has been repealed. The position is thus inescapable that in the absence of express provision incorporated in the Code of 1973, the appeals filed subsequent to coming into force of the said Code of 1973 would be governed by the Code of 1973. Notwithstanding the repeal of the Code of 1898 sub-section (2) of Sec. 484 of the Code of 1973 provides that if immediately before the date on which the Code comes into force there is any appeal pending then such appeal shall be disposed of in accordance with the provisions of the Code of Criminal Procedure 1898 was in force immediately before such commencement as if this Code have not come into force. It follows therefore that if the appeals under consideration had been filed before 1.4.74 they would have been governed by the old Code of 1898, particularly Sec. 423 thereof Subsection (2) of the said Sec. 423 restricts the powers of the appellate court in disposing of an appeal and provides. Nothing herein contained shall authorise the court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a mis-direction by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him". Provisions broadly similar to the provisions of Sec. 423 of the old Code are to be found in Sec. 386 of the Code of 1973. The Code of 1973 does not however contemplate jury trial and, therefore, Sec. 386 of the new Code does not embody a provision comparable with sub-section (2) of Sec. 423 of the old Code. As the appeals were not pending before 1.4.74, provisions of Sec. 484(2)(a) of the Code of 1973 are not attracted and the appeals do not require exercise of restricted appellate power in terms of Sec. 423(2) of the old Code. Mr. Balai Roy, the learned advocate for the appellants in this connection draws the attention of the court to a Bench decision of this Court namely Kanhaiyalal Pasuari Vs. Corporation of Calcutta reported in 1977 Calcutta High Court Notes page 109 . In the case cited trial was initiated under the old code but Conviction was made after the new Code came into force and a question arose as to the forum of appeal At page 113 Anil K. Sen, J. relying on Mukundadas Vs. Bidhan Chandra Roy, 63 CWN 834 observed "That right of appeal along with the forum therefor would be preserved in his favour unless there is anything express in the new Code to alter the said substantive right of appeal or the forum therefor or such a consequence follows by way of necessary implication". It will thus be noticed that the ruling relied upon by Mr. Roy has no application to the instant case in as much as the ruling cited is a decision on the question of forum of appeal and not with regard to the manner of exercise of appellate Court's power. In the present case there is no dispute that the order of conviction and sentence having been passed by a Judge of City Sessions Court, appeal lay under the old Code or the new Code, in this Courts. There is no dispute thus regarding the forum of appeal. Further in the case referred to above the question of forum came up because the trial was initiated under the old Code but the conviction was made after the new Code came into force. In the present case the trial started and was concluded under the old Code, only the appeals from the order of conviction were tiled under the new Code. In the new Code there is no provision as to how appeals from conviction passed on verdict of jury should be dealt with in appeal. Sec. 386(b)(i) of the Code of 1973 simply provides that in an appeal from a conviction the appellate Court may reverse the finding and sentence and acquit or discharge the accused or order him to be retried by the court of competent jurisdiction subordinate to such appellate court or committed for trial or (ii) alter the finding maintaining the sentence or (iii) with or without altering the finding, after the nature or the extent or the nature and extent, of the sentences, but not so as to enhance the same". We see in Sec. 386 or elsewhere in the Code of 1973 no provision similar to those of Sec. 423(2) of the repealed Code of 1898. The conclusion, therefore, follows that even in case of appeal from orders of conviction and sentence passed on the basis of verdict of jury appeal if any from the sentence filed after the coming into force of the Code of 1973 the manner of exercise of appellate power by the Court would be governed by Sec. 386 of the new Code without the inhibition or restriction as imposed by Sec. 423(2) of the old Code. [His Lordship discussed the evidence from paras 3 to 8]. 9. The learned advocates for the accused placed the entire oral evidence of the witnesses and the documentary evidence before us and made detailed arguments, as they thought, that as appellate court we are unfettered in the matter of assessing evidence. We have given our anxious consideration to the evidence adduced. We do not consider it necessary to reexamine the evidence in details. It is sufficient to say that from a reading of the charge ta the jury we are satisfied that the Judge correctly assessed the evidence adduced and neatly summed up the same to the injury. The jurors returned a verdict of guilty and the learned Judge accepted the same. We do not see toy cogent or compelling reason to set aside the findings arrived at by the Learned Judge. We see no reason even to reduce any of the sentences imposed by the learned Judge on the accused. 10. In the result the appeal fails. Both the appeals be distressed on contest. The order appealed against is affirmed. The appellants who are so bail bond are directed to surrender to their bail bonds to serve out the sentence.

(3.) N.C. Mukherji, J. - I agree. Appeals dismissed.