Lahur Mahato vs Giridhari Mahato and Others

N.C. Talukdar, J.—This is a reference by Shri P.K. Roy, Sessions Judge Purulia recommending that the order dated the 20th December, 1971, passed by Shri R.K. Ghosh, Judicial Magistrate, 1st Class, Purulia in case No. C-257 of 1968, convicting the accused-persons Nos. 2 to 20 u/s 447 of the Indian Penal Code but passing no sentence upon them, is not a proper judgment u/s 367(2) Criminal Procedure Code and the High Court may be pleased to pass such sentence or further order as it deems fit and proper. The facts leading on to the reference are short and simple. On the 29th June, 1968, one Lamar Mahato filed a petition of complaint against one Giridhari Mahato and 19 others on various allegations. On examining the complainant the learned Sub-divisional ''Judicial Magistrate, Purulia issued process against all the accused-persons under Sections 147 and 447 of the Indian Penal Code. The accused-persons who appeared thereafter, were released on bail and the case was transferred to the file of Sri R.K. Ghosh, Judicial Magistrate, 1st Class, Purulia for disposal. Five witnesses were examined by the complainant including himself and thereafter the learned trying Magistrate framed charges under Sections 447 and 427 of the Indian Penal Code against the accused-persons who pleaded not guilty to the charge and claimed to be tried. Cross-examination followed and ultimately by his judgment dated the 20th December, 1971, the learned trying Magistrate found all the accused-persons not guilty u/s 427 of the Indian Penal Code but guilty u/s 447 of the Indian Penal Code and he sentenced only one of them, viz. Giridhari Mahato, to pay a fine of Rs. 100J-, in default to suffer S.I. for one month there under, without passing any sentence on the other accused-persons Nos. 2 to 20. Girdhari preferred an appeal, being criminal appeal No. 4 of 1972, before the learned Sessions Judge, Purulia, who on hearing the arguments of the appellant, felt that the order passed by the learned trying Magistrate relating to the other accused-persons was not in order and in that view stayed the hearing of the appeal and referred the case to the High Court for a suitable order by passing proper sentences, as it deemed fit and proper, on the other 19 accused-persons who were convicted.

Nobody appeared on behalf of the accused-persons. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State opposed the reference on two grounds, relating to procedure viz., (1) that the learned Judge should have disposed of the appeal first before making the reference; and (2) that there cannot be any reference u/s 438 of the Code of Criminal Procedure arising out of an appeal filed in the Court below. Mr. Mukherjee however agreed on merits with the subject-matter of the reference because on conviction the accused-persons should be sentenced in accordance with law as enjoined by the statute. After hearing Mr. Mukherjee on the point of law involved, this Court requested Mr. Kiran Chandra Ghosal, Advocate to appear as Amicus Curiae to assist the Court in determining the point of law involved and Mr. Ghosal readily agreed. Copies of the letter of reference as also of the order-sheet were thereafter served on Mr. Ghosal and the matter came up for final hearing.

The learned Amicus Curiae supported the reference on merits excepting the last part thereof recommending the passing of proper sentences by the High Court. The steps of Mr. Ghosal''s reasoning are: (a) the provisions of Section 258(2) of the Code of Criminal Procedure laying down that the learned Magistrate concerned "shall, if he finds the accused guilty, pass sentence upon him according to law"; (b) the language of Section 245 (2) where under the learned Magistrate "shall, if be finds the accused guilty pass sentence upon him according to law"; and (c) u/s 367(2) it is enjoined that "It shall specify the offence (if any) of which, and the Section of the Indian Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced." On the basis of the provisions referred to above, the learned Amicus Curiae submitted that it is the intention of the legislature that an accused when convicted should be sentenced, however much nominal the sentence may be, according to the discretion of the Court but the emphasis on a sentence to be passed. Mr. Ghosal also relied on the case of (5) State Vs. Govind Singh and Others, in support of his proposition. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State adopted the submissions of Mr. Ghosal on merits and contended that the learned Judicial Magistrate had acted illegally and improperly in not awarding any sentence in spite of his findings, leading on to the conviction of the accused-persons Nos. 2 to 20 and more so when he had already sentenced the accused No. 1, Giridhari Mahato. The learned Sessions Judge, Purulia in his letter of reference had also observed that it was the duty of the learned Magistrate concerned to have passed appropriate sentences on conviction, and that the judgment passed by him has been vitiated by a non-conformance to Section 367(2) of the Code of Criminal Procedure; and that as he was in seisin of the appeal only preferred by Giridhari, the accused No. 1, he was not in a position to revise the order of the learned Magistrate relating to the 19 other accused persons who were not before him and as such had to submit the matter to the High Court for passing a suitable order.

Having heard the submissions made by Mr. Mukherjee on behalf of the State and by Mr. Ghosal, the learned Amicus Curiae and on going through the Letter of Reference, I will now proceed to consider the points involved. The first point raised is whether a reference can be made in the backdrop of an appeal, inasmuch as the learned Sessions Judge, Purulia has made this Reference, in course of the hearing of an appeal preferred by the co-accused Giridhari Mahato. Mr. Mukherjee contended that such a reference is dehors the provisions of Section 438 of the Code of Criminal Procedure. Mr. Ghosal, appearing as Amicus Curiae however submitted that the provisions of Section 438 are wide enough to include such Reference and he relied on the words "or otherwise the record of any proceeding, etc.", incorporated in Section 438. There appears to be some force behind those submissions. The provisions of Section 432(1), which were also referred to in this context, lay down that a reference to the High Court may be made when "any court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case etc." It is doubtful whether the provisions of Section 432(1) apply to this case. The determination of the afrained point, however, would be more academic than real because the case is now before the High Court, the powers whereof are not in any way fettered by such bounds of an appeal or a revision. A Reference in this context may be made to the case of (3) Lekhraj Ram Vs. Debi Pershad , decided by Goidt and Woodroffe JJ. Sir John Woodroffe delivering the judgment of the Court observed at pp. 680 that "For my part, I am of opinion that there is no form of judicial injustice, which this Court, if need be, cannot reach". A reference again may be made to the case of (2) Hukum Chand Boid v. Kamalanand Singh reported in ILR 33 Cal. 927 decided by Sir John Woodroffe and Sir Ashutosh Mookerjee JJ. Sir John Woodroffe delivering the judgment of the Division Bench observed at pp. 920 that "For my part, I am always slow to believe that the Court''s powers are unequal to its desire to order that which it believes to be just". I to respectfully agree with the said observations and hold that on ultimate analysis the overriding consideration is justice and the determination of the aforesaid point will be only academic. The matter is now before the High Court and, in view of the interests of justice, the same should be considered irrespective of technicalities. "Fiat Justitia, Ruat Coelum : Let justice be done, though heavens may fall".

I shall now pass on to the second point for consideration as to whether on conviction a sentence should be passed or otherwise the judgment would be bad u/s 367(2) Criminal Procedure Code. The learned Amicus Curiae has taken pains in cataloguing the different provisions of the statute bearing on the point at issue and in placing before me the imprimatur of judicial decisions bearing on the point. Mr. N.R. Mukherjee, Advocate, appearing on behalf of the State also contended that on merits the Reference is sustainable and in view of the provisions of Section 867(2) Criminal Procedure Code, the learned Judicial Magistrate should have sentenced the accused Nos. 2 to 20 when convicting them on 20.12.71. I have given my anxious consideration to the point, which is an intriguing one and I ultimately hold, that in view of the provisions of Section 258(2) relating to a warrant case, and of Section 245 (2) relating to a summons case, and also in view of Section 367(2) relating to the language and contents of a judgment, that it is the intention of the legislature that on conviction the Court shall pass a sentence. The provisions contained in Section 367(2) Criminal Procedure Code are mandatory. These are as follows :

It shall, specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced

Some meaning and effect must be given to the use of the word "shall". It is well-known that "the legislature is deemed not to waste its words" and as such the word "shall" has not been used in vain in Section 367(2) Criminal Procedure Code. Any interpretation which will fail to give effect to the said word, would be to attribute redundancy to a legislature. It is pertinent to refer in this context to the case of (1) Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax, Nagpur, . Mr. Justice Subba Rao (as His Lordship then was) observed at pp. 772 that

A construction which would attribute redundancy to a legislature shall not be accepted excepting for compelling reasons

There are no compelling reasons in the context of the point under consideration. I respectfully agree therefore with the said observations and I hold that the framers of the Code did not mean to waste their words and the provisions enjoined in Section 367(2) Criminal Procedure Code are mandatory on the principles of intent and of meaning. A non-conformance therefore to such mandatory provisions, by not specifying "the punishment to which he is sentenced" is a non-conformance to the procedure established by law and vitiates the ultimate order passed. I agree therefore with the submissions of the Amicus Curiae and of Mr. Mukherjee and hold that the learned Trying Magistrate had erred in not passing any sentence after convicting the accused Nos. 2 to 20 in his order dated the 20th December, 1971 and accordingly the learned Sessions Judge was right in recommending to this Court that a proper order should be passed within the ambit of Section 367(2) Criminal Procedure Code.

Two other points raised by the learned Advocates remain to be considered. The first one is raised by Mr. N.R. Mukherjee who submitted that the order passed by the learned Magistrate is undoubtedly bad and to that extent the Reference is sustainable on merits but the same cannot be corrected without disposing of the appeal first. Mr. Mukherjee referred in this connection to the case of (4) Mir Ghawas Accused v. Emperor-Opposite Party reported in 37 Cri. L.J. 470, in support of his proposition that the appeal should be decided before the points at issue can be determined. In the said case under report an appeal was pending in the Court of the Additional Sessions Judge, Peshawar, from an order of conviction but the learned Judge without deciding the appeal referred the case to the High Court u/s 438 Criminal Procedure Code. Middleton J.C. held therein that

he appears to be of opinion that S. 412, Criminal Procedure Code, debars him from giving full Justice in an appellate order

The facts however are clearly distinguishable in the present case. The defect complained of here is u/s 367 (2) Criminal Procedure Code relating to the order passed by the learned Judicial Magistrate, Purulia, and does not directly form the subject matter of the appeal pending before the learned Sessions Judge, Purulia. In the case of Giridhari, the accused No. 1.... he preferred the appeal, and the learned Trying Magistrate had not only convicted him u/s 447 of the Indian Penal Code but also sentenced him to pay a fine of Rs. 100/- in default to undergo S.I. for one month. The said order ex facie is not in non-conformance to any procedure established by law but the point for consideration is whether it is sustainable on merits. It is for the Court of Appeal to decide Use same, independently of the other part of the magisterial order. The court of appeal viz. the learned Sessions Judge, Purulia, need not have stayed the hearing of the appeal pending the disposal of this Reference. The appeal shall now proceed. The defect in the order passd by the learned Trying Magistrate, which has no impact on the aforesaid appeal, should be corrected at the earliest opportunity and need not be held up till the disposal of the appeal.

The second point raised is by the learned Amicus Curiae who rightly submitted that the last part of the reference recommending that the High Court should now proceed to pass the requisite sentences on the accused Nos. 2 to 20, is not sustainable. The accused persons are not present before this Court and the sentences should not be passed in their absence. Such a procedure would be dehors section 439 (2) of the Code of Criminal Procedure wherein it has been enjoined that no order under this Section shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader on his own defence. The case therefore must go back to the learned Trying Magistrate for passing proper orders by way of sentence on the accused persons Nos. 2 to 20, after giving due opportunity to them to be heard. This disposes of the various points raised and involved in this reference but before I part with the case, I must place on record my appreciation of the assistance rendered by Mr. Kiran Chandra Ghosal, Advocate, the learned Amicus Curiae, who spared no pains to assist this Court to come to a proper decision.

In the result, I dispose of the Reference on modification as follows, viz., that the learned Judicial Magistrate, 1st Class, Purulia, shall proceed to pass proper sentences on the accused-persons Nos. 2 to 20 u/s 447 of the Indian Penal Code after giving due opportunities to them to appear and be heard in this behalf; and that the appeal pending before the learned Sessions Judge, Purulia, being criminal appeal No. 4 of 1972, is to be disposed of expeditiously.

The records shall go down as early as possible.