RAMA BALLABH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a revision by Rama Ballabh and Chiranjilal against the order dated August 5, 1981 passed by the Sessions Judge, Jhalawar in Criminal Appeal No. 123 of 1977 of his Court. The petitioners in this revision have prayed that the order of conviction dated August 8, 1977 passed by the Chief Judicial Magistrate Jhalawar and maintained by the Sessions Judge, Jhalawar, by his order dated August 5, 1981 be set aside and the food-grains seized & confiscated to the State be ordered to be returned to the petitioners and in case the food-grains have already been sold, the value thereof may be ordered to be refunded to the petitioners.

(2.) It is necessary to state briefly the facts leading to the filing of this revision. A criminal case under Section 3/7 of the Essential Commodities Act was filed in the court of the Chief Judicial Magistrate, Jhalawar and was registered as case No. 51 of 1976. It so happened that in an inspection of the establishment of M/s Shivkishan Shivnarain Kacholia by the District Supply Officer it was found that in April 1975, that the said firm had a stock of more than 100 quintals of Jawar without any declaration and further the firm had kept 236 quintals of gram in the warehouse on May 30, 1975 but did not disclose the name of the godown in the report to the Tehsildar. Thus it was alleged that the petitioners and their deceased father Gopikishan Kacholia, who were partners in the said firm and holders of grain licence, had contravened the provisions of the Rajasthan Food Grains (Prevention of Hoarding) Order, 1973 and the Rajasthan Food Grains Dealers Licensing Order, 1964 At the time of checking and inspection the above food-grains were seized and a criminal case was filed against the petitioners and their father Gopikishan Kacholia. The Chief Judicial Magistrate, Jhalawar by his order dated August 8, 1977 held the petitioners and their father guilty under Section 3/7 of the Essential Commodities Act and awarded a punishment of imprisonment till the rising of the court and a fine of Rs. 500/- and also directed that in default of payment of fine, all the three accused persons will further undergo an imprisonment for a period of 15 days each. The Chief Judicial Magistrate also passed an order for confiscation of the seized food grains to the State. Aggrieved by the judgment of she Chief Judicial Magistrate Jhalawar, the petitioners and their father (Late) Gopi Kishan Kacholia preferred a revision against the order of conviction before the court of Sessions Judge, Jhalawar. The learned Sessions Judge was right in his opinion that revision was not maintainable and the convicted person could only file an appeal. He converted the revision info appeal and allowed the appeal so far as the petitioners Rama Vallabh and Chiranji Lal were concerned. It may be mentioned here that Gopikishan Kacholia had died during the pendency of the revision before the Sessions Judge, Jhalawar, which had been treated by the Sessions Judge as appeal. Naturally, therefore, consequences mentioned in Section 394 of the Cr. P.C. ensued which contains the provision that every appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Since Gopi Kishan Kacholia had died, the revision which was converted into an appeal abated in relation to him. There is a proviso attached to Section 394(2) of the Criminal Procedure Code which provides that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal any of his near relatives may, within 30 days of the death of the appellant apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate Explanation below this section states that the expression "near relative means a parent, spouse, lineal descendant, brother or sister. Gopikishan Kacholia had expired on January 19, 1980 and the period of 30 days within which the application could be made by the near relatives under proviso to Section 394 expired on February 18, 1980. It was on February 19, 1980 that that the petitioners claiming themselves to be lineal descendants of Gopikishan Kacholia filed an application under the proviso for leave to continue the appeal. The learned Sessions Judge rejected this application on two grounds firstly, that the application was barred by limitation and secondly, that Gopikishan Kacholia along with the petitioners had filed a revision and not an appeal and provisions of Section 394 of the Code do not apply to revisions.

(3.) The learned Counsel for the petitioners referred to the decision of their Lordships of the Supreme Court in the case of Pranab Kumar Mitra v. State of West Bengal, 1959 CrLJ 256. The question for determination in that case was whether a pending application in revision under Section 439 of the old Code of Criminal Procedure finally abates on the death of the petitioner in the High Court and if so what extent. In that case during the pendency of a revision under Section 439 of the old Code before the Calcutta High Court against the appellate order of the Additional Sessions Judge, Alipore, the accused died on July 8, 1955 leaving behind him, his widow and five children all of whom were minors except one Pranab Kumar Mitra. He made an application that he was one of the heirs of the deceased accused and was interested in proceeding with criminal revision case and challenged the order of conviction and sentence passed against his deceased father. He prayed that he might be added as a party to the criminal revision. The Division Bench of the Calcutta High Court passed an order on December 22, 1955 holding that the principles of Section 431 of the old Code apply to a criminal revision application even when there was a composite sentence but only in so far as the sentence of fine was concerned. The application for substitution was, therefore, allowed. Their Lordships of the Supreme Court laid down that in the essence of statutory revision in terms applying to an application in revision as there are those in Section 431 of the old Code in respect of criminal appeals, the High Court had the power to pass such orders as it may deem fit and proper in exercise of its revisional jurisdiction vested in it by Section 439 of the old Code. This power was a discretionary power which has to be exercised in aid of justice because the powers under Section 439 of the old Code read with Section 435 did not create any right in the litigation but only conserved the power of the High Court to see that justice was done in accordance with the recognised rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction or abuse their powers vested in them by the Court. That power was not available in appeal because a right of appeal was a statutory right which had got to be recognised by the courts and the right of appeal where one exists could not be challenged in exercise of the discretionary powers even of the High Court. Their Lordships inferred that the power of revision could be exercised according to the exigencies of each case. Their Lordships further stated that in revision the High Court was not justified in limiting its power to the question of fine only, whether it was appropriate or excessive, without going into the merits of the order of conviction. In their opinion, the High Court had the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view.