DATTATRAYA Vs. EMPEROR

JUDGEMENT

(1.) THIS is a habeas corpus application under Section 491, Criminal P.C. The applicant was tried on two charges for offences of criminal breach of trust in respect of two sums. On 9th December 1942 the trial Magistrate discharged him in respect of one of those charges but convicted him of the offence of criminal breach of trust punishable under Section 409, Penal Code, in respect of the other charge which related to the sum of Rs. 1725-8-1. Upon appeal by the applicant the Second Additional Sessions Judge, Akola, by judgment dated 21st June 1943, confirmed the conviction but reduced the sentence awarded by the trial Magistrate to one of rigorous imprisonment for 12 months. The applicant then applied for revision in this Court but his application was dismissed on 17th September 1943 by Niyogi J. who confirmed both the conviction and the sentence. Before us the applicant argued his case himself and raised various contentions. As far as we could gather his contentions were as set out below: (i) The trial was illegal and invalid because of misjoinder of charges, (ii) An offence under Section 409, Penal Code, was not constituted as he was not a public servant and was neither a secretary nor an agent. And (iii) Jurisdiction of the criminal Courts was barred by reason of the provisions of the Co-operative Societies Act (2 of 1912). These arguments carry their reflation on the very face of them and it is not necessary to deal with them at any length. The applicant was convicted on only one charge and was discharged on the other. There is therefore no question of the conviction being vitiated by misjoinder. Then again whether the applicant could have been convicted for an offence under Section 409 or Section 406, Penal Code, hardly matters. The last argument with reference to the provisions of the Co-operative Societies Act is entirely unmeaning. We reject these contentions of the applicant as altogether futile.

(2.) BUT even if there was any substance in any of these contentions, the jurisdiction of this Court under Section 491, Criminal P.C., would still not be attracted. These contentions even if valid are not such as could render the conviction and sentence a mere nullity. The applicant's argument comes to nothing more than a plea urging upon us that we should review the conviction and the sentence and in particular the revisional order of Niyogi J. The provisions of Section 491, Criminal P.C., do not give any such jurisdiction to this Court and this is what was held in Diwan Singh v. Emperor A.I.R. 1936 Nag. 132. There is a fuller statement on the subject in In re Bonomally Gupta A.I.R. 1917 Cal. 149 in a passage which may be usefully reproduced here and which is as follows: I think it is well established that a writ of that nature is not granted to persons convicted, or in execution under legal process, including persons in execution of a legal sentence after conviction on indictment in the usual course. It is not granted where the effect of it would be to review the judgment of one of the superior Courts, which might have been reviewed on a writ of error, or where it would falsify the record of a Court which shows jurisdiction on the face of it. I may refer to the case in Ex parte Newton (1855) 24 L.J.C.P. 148, In that case upon an indictment charging felony committed within the jurisdiction of the Central Criminal Court, a prisoner who had pleaded 'not guilty' was tried, convicted and sentenced to imprisonment. After sentence an application was made to the Court for a writ of habeas corpus for his discharge, upon an affidavit showing that the offence was not committed within the jurisdiction as alleged. It was held by the learned Judges that the record was an estoppel, and the writ was refused. Jervis C.J. in delivering his judgment said 'No doubt, in sore respects, this is a case of importance, but no authority has been cited to show that we can entertain the application,' 'and the reason for no authority having been cited is, most probably, that the point was never before raised, because there is nothing in it.' Cresswell J. held: 'if the Court entertained an application of that character it should next be asked to enquire into the truth of any other fact averred upon an indictment and found by the jury, which, after trial, it might be said, had not been proved.' The Judges agreed that there was no authority to warrant interference by the issue of such a writ. I may also refer to the case in King v. Suddis (1801) 1 Eas. 306. There Lord Kenyon C.J. said: We are not now sitting as a Court of Error, to review the regularity of their preceedings, nor are we to hunt after possible objections.' Grose J. held, 'it is enough that we find such a sentence pronounced by a Court of competent jurisdiction to enquire into the offence, arid with power to inflict such a punishment. As to the rest we must therefore presume omnia rite acta.' Lawrence J. held, 'It is enough that the Court had authority to award such a sentence.' The return was, that the party was detained in custody, under the judgment of such a Court, which was the usual return and sufficient. Le Blanc J., in answer to the objection that it did not appear that the party had been charged with the offence of which he had been convicted, said: 'It is sufficient for the officer having him in his custody to return to the writ of habeas corpus that a Court having a competent jurisdiction had inflicted such a sentence as they had authority to do, and that he holds him in custody under that sentence. 2. The only possible provisions under which the applicant could have hoped, if at all, to bring his case are those which are to be found in Section 491(1)(a) and (b), Criminal P.C. But the applicant has already been dealt with according to law and has not been illegally or improperly detained in public custody. Thus there is no question of his being entitled to invoke those provisions. The application under Section 491 ibid, is entirely misconceived and we direct that it be dismissed. The applicant further contended that if we could not give him relief under Section 491, Criminal P.C., we could and should interfere with the conviction under Section 439, ibid. Niyogi J. has already decided the applicant's application for revision against his conviction and sentence and we cannot be asked either to review the order of Niyogi J. or to entertain another application for revision. The applicant has also argued that we could act under Section 232, Criminal P.C. But the argument regarding the invalidity of the charge was open to the applicant on his application for revision before Niyogi J. and we are not sitting in this matter either as an appellate Court or a revisional Court nor are we exercising any powers that are there contemplated. This argument, therefore, also fails. Lastly, the applicant invoked the provisions of Section 224, Government of India Act, which, he contended, empowered the High Court to interfere with his conviction and sentence. But that section does not add to the appellate or revisional powers of the High Court as has been expressly stated in its Sub-section (2). So whatever appellate or revisional powers the High Court possesses have to be sought elsewhere, for instance, in this case, in the Criminal Procedure Code. This is the view taken of Section 224, Government of India Act, by the Calcutta High Court in Bhagawan Dayal v. Chandu Lal and by the Federal Court in Pashupati Bharti v. Secy. of State . The same view was also taken by Niyogi J. in Dattatraya v. Registrar, Co-operative Societies A.I.R. 1941 Nag. 282 in which case it appears this very applicant had unsuccessfully argued, what he does now, though in rather different circumstances. The applicant's argument calling in aid the provisions of Section 224, Government of India Act, is thus altogether untenable and we hold accordingly. We therefore dismiss the applicant's application dated 20th July 1943.