Himachal Pradesh High Court
Reserved On: 07.03.2025 vs State Of Himachal Pradesh on 7 April, 2025
2021:HHC:15770
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 21 of 2011
Reserved on: 07.03.2025
Date of Decision: 07.04.2025
Lekh Ram & Anr. …Petitioners
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioners : Mr. G.R. Palsra, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 20.12.2010, passed by learned Presiding Officer, Fast Track
Court Mandi, District Mandi, H.P. (learned Appellate Court), vide
which the appeal filed by the petitioners (accused before learned
Trial Court) was partly allowed, the judgment passed by learned
Judicial Magistrate First Class, Court No.2, Mandi (learned Trial
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Page |2
2021:HHC:15770
Court) convicting the accused was upheld and affirmed but the
sentence part of the judgment was set aside and the case was
remanded to the learned Trial Court to pass appropriate order of
sentence after hearing the parties. (The parties shall hereinafter be
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
petition are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 323, 325, 341 and 506 read
with Section 34 of Indian Penal Code (IPC). The learned Trial
Court framed the charges, recorded the evidence and convicted
the accused of the commission of offences punishable under
Sections 325 and 323 of IPC read with Section 34 of IPC and
sentenced them as under:
Under Section 325 To undergo simple imprisonment for a period
read with Section 34
of six months and to pay a fine of ₹ 1000/-
(Rupees One Thousand) each and in default of
payment of fine to further undergo simple
imprisonment for a period of thirty days.
Under Section 323 To undergo simple imprisonment for a period
read with Section 34
Page |3
2021:HHC:15770of three months and to pay a fine of Rs.500/-
(Rupees Five Hundard) each and in default of
payment of fine to further undergo simple
imprisonment for a period of fifteen days.
3. Being aggrieved by the judgment and orders passed by
learned Trial Court, the accused filed an appeal which was
decided by the learned Presiding Officer, Fast Track Court, Mandi
(learned Appellate Court). Learned Appellate Court held that the
learned Trial Court had rightly convicted the accused of the
commission of offences punishable under Sections 323 and 325
read with Section 34 of IPC. Their conviction was based on the
evidence available on the record and called for no interference.
However, the learned Trial Court had not given valid reasons for
declining the benefit of probation to the accused. Hence, the
sentence part of the judgment passed by learned Trial Court was
not sustainable. Consequently, the matter was remanded to the
learned Trial Court with the direction to hear the accused on the
quantum of sentence and pass an appropriate order on the
sentence as per the law.
4. Being aggrieved from the judgment passed by the
learned Appellate Court the accused/petitioners have filed the
Page |4
2021:HHC:15770
present petition asserting that the learned Appellate Court erred
in remitting the matter to the learned Trial Court.
5. I have heard Mr. G. R. Palsra, learned counsel for the
petitioners-accused and Mr. Lokender Kutlehria, learned
Additional Advocate General for the respondent-State.
6. Mr G. R. Palsra, learned counsel for the petitioner-
accused submitted that the learned Appellate Court erred in
remitting the matter to the learned Trial Court for considering
the grant of probation to the accused. The learned Trial Court had
given valid reasons for declining the benefit and if the reasons
assigned by the learned Trial Court were not valid, the learned
Appellate Court should have granted the benefit of the probation
itself instead of remanding the matter to the learned Trial Court.
Therefore, he prayed that the present petition be allowed and the
judgment passed by the learned Appellate Court be set aside.
7. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State submitted that the learned Trial
Court had not given valid reasons to decline the benefit of
probation and learned Appellate Court had rightly remanded the
Page |5
2021:HHC:15770
matter to the learned Trial Court for deciding the sentence as per
the law.
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
9. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional
Court is not an appellate Court and it can only rectify the patent
defect, errors of jurisdiction or the law. It was observed on page
207: –
“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence brought
on record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like
to the appellate court and the scope of interference in
revision is extremely narrow. Section 397 of the Criminal
Procedure Code (in short “CrPC“) vests jurisdiction to
satisfy itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such
inferior court. The object of the provision is to set right a
patent defect or an error of jurisdiction or law. There has
to be a well-founded error which is to be determined on
the merits of individual cases. It is also well settled that
while considering the same, the Revisional Court does not
dwell at length upon the facts and evidence of the case to
reverse those findings.
Page |6
2021:HHC:15770
10. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was
observed:
“13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power
to call for and examine records of an inferior court is for
the purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has
crept into such proceedings. It would be apposite to refer
to the judgment of this court in Amit Kapoor v. Ramesh
Chandra, (2012) 9 SCC 460 where the scope of Section 397
has been considered and succinctly explained as under:
“12. Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for
the purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-founded
error and it may not be appropriate for the court to
scrutinise the orders, which upon the face of it bear a
token of careful consideration and appear to be in
accordance with the law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes but are merely indicative. Each case
would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuilt
Page |7
2021:HHC:15770restrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to
injustice ex-facie. Where the Court is dealing with the
question as to whether the charge has been framed
properly and in accordance with law in a given case, it may
be reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much-
advanced stage in the proceedings under the CrPC.”
11. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
12. The learned Appellate Court confirmed the conviction
of the accused/petitioners and remitted the matter to the learned
Trial Court for considering the benefit of the Probation of
Offenders Act. A similar situation arose before Delhi High Court
in Suresh v. State, 1995 SCC OnLine Del 178: 1995 Cri LJ 3741 wherein
the learned Appellate Court confirmed the conviction of the
accused and remitted the matter to learned Trial Court for
considering the benefit of granting the probation. It was held
that the court had no jurisdiction to confirm the conviction and
remit the matter to the trial court for considering the benefit of
granting the probation. Learned Appellate Court could have
granted the benefit itself. It was observed at page 3742:
Page |8
2021:HHC:15770“11. Therefore, I have to see as to whether the provisions
of the Code of Criminal Procedure permit the Additional
Sessions Judge to partly confirm the order of the
Metropolitan Magistrate and partly set aside the order of
the learned Metropolitan Magistrate. If the provisions of
the Code of Criminal Procedure are considered then it will
be quite clear that if an accused is convicted he is to prefer
an appeal against the order of conviction and sentence.
Only in those cases covered by Sections 375 and 377, Cr.
P.C. an appeal against the order of sentence could be
preferred. Section 375, Cr. P.C. provides that where an
accused person, who has pleaded guilty and has been
convicted on such a plea can prefer an appeal only to the
extent or legality of the sentence. Section 377, Cr. P.C.
empowers the State Government to prefer an appeal to the
High Court against the sentence on the grounds of
inadequacy of the sentence.
12. The case of the revision applicant does not fall within
the purview of either Section 375 or Section 377, Cr. P.C.
13. In the case of Pratul Chaudhary v. State, 1978 CLR 98, a
learned Single Judge of this High Court had dealt with a
similar case and it has been held that a Sessions Judge i.e.
the appellate Court has no power of remission except for
the purpose of retrial and remand for the purpose of
hearing the accused on the question of sentence is not
within the jurisdiction of a Sessions Court. Once the appeal
is admitted, the Sessions Court has to decide the appeal as
a whole and has to confirm or set aside the order of
conviction as well as sentence simultaneously. It is not
open for the Sessions Judge to confirm only the order of
conviction and set aside the order of sentence and remand
the matter to the trial Court. It must be remembered that
in a criminal case, the only real issue is as to whether the
accused is guilty of the offence with which is charged.
Once he is found guilty the sentence must follow. The
order of sentence is not a distinct and separate issue. A
criminal case is not like a civil case. In civil cases number
of issues are arising. Hence in a civil appeal, it is open to
the Appellate Court to confirm the finding on some issue
Page |9
2021:HHC:15770
and remand the suit to the trial Court to reconsider or
consider other issues involved in that civil case. But in the
civil Appeal, there could not be a remand to consider the
issue on the question of costs of a civil case. Similarly, in
criminal appeals, there could not be a remand of a case to
the trial Court for consideration question of sentence.
14. The learned Additional Sessions Judge has not taken
into consideration the provisions of Section 11, of the said
Act. The said Section 11 runs as under:
11. Courts competent to make an order under the Act,
appeal and revision and powers of Courts in appeal and
revision– (1) Notwithstanding anything contained in
the Code or any other law, an order under this Act may
be made by any Court empowered to try and sentence
the offender to imprisonment and also by the High
Court or any other Court when the case comes before it
on appeal or in revision.
(2) Notwithstanding anything contained in the
Code, where an order under Section 3 or Section
4, is made by any Court trying the offender (other
than a High Court) an appeal shall lie to the Court
to which appeals ordinarily lie from the
sentences of the former Court.
(3) In any case where any person under twenty-
one years of age is found guilty of having
committed an offence and the Court by which he
is found guilty declines to deal with him under
Section 3, or Section 4, and passes against him
any sentence of imprisonment with or without
fine from which no appeal lies or is preferred,
then, notwithstanding anything contained in the
Code or any other law, the Court to which appeals
ordinarily lie from the sentences of the former
Court may, either of its own motion or on an
application made to it by the convicted person or
the probation officer, call for and examine the
record of the case and pass such order thereon as
it thinks fit.
P a g e | 10
2021:HHC:15770
(4) When an order has been made under Section
3, or Section 4, in respect of an offender, the
Appellate Court or the High Court in the exercise
of its power of revision may set aside such order
and in lieu thereof pass sentence on such
offender according to law:
Provided that the Appellate Court or the High
Court in revision shall not inflict a greater
punishment than might have been inflicted by
the Court by which the offender was found
guilty.”
15. If the above provisions of sub-section (1) of Section 11,
are considered then it would be quite clear that an order
under the provisions of the Act could be made by the
appellate Court as well as the revisional Court. Therefore,
if the learned Additional Sessions Judge had felt that the
report of the Probation Officer ought to have been called
and considered by the trial Court, then he ought to have
called the said report himself and then dispose of the
appeal by passing the necessary order in respect of the
sentence along with the order of confirming the
conviction.
16. Thus it would be quite clear that the order passed by
the learned Additional Sessions Judge by maintaining the
order of conviction and setting aside the order of sentence
and remanding the matter to the trial Court only to
consider the question of sentence is illegal. The said order
is not supported by any provisions of law. It is open for an
appellate Court to remand the matter to the trial Court for
re-trial as a whole but it is not open for an appellate Court
to only remand the matter to the trial Court for the
purpose of considering the question of sentence because
the Code of Criminal Procedure does not provide any right
of appeal except the cases covered by Sections 375 and 377
to a person. Such an improper and illegal order of
remanding the matter to the trial Court only to consider
the question of sentence would be depriving the
fundamental right of an accused person to prefer an
P a g e | 11
2021:HHC:15770
appeal against the order of sentence. Thus, I hold that the
order of Additional Sessions Judge passed by him on 2-8-
1980 is illegal and invalid and the consequential order
passed by the learned Metropolitan Magistrate on the
strength of the said order of Additional Sessions Judge
passed on 2-8-80 is also illegal and invalid.
13. I respectfully agree with the judgment of the Delhi
High Court and hold that it is not permissible for an Appellate
Court to confirm the conviction of the accused and remit the
matter to the learned Trial Court for deciding the question of
granting probation. The learned Appellate Court erred in
confirming the conviction of the petitioners/accused and
remitting the matter to the learned Trial Court to decide the
question of granting the benefit of probation to the
petitioners/accused. Hence, the judgment passed by learned
Appellate Court cannot be sustained.
14. Consequently, the present revision is allowed, and the
judgment passed by learned Appellate Court remitting the matter
to learned Trial Court is set aside. The matter is remitted to the
learned Appellate Court to consider the benefit of probation to
the petitioners/accused itself as per the law. The parties, through
their respective counsel, are directed to appear before the learned
Appellate Court on 28th April, 2025.
P a g e | 12
2021:HHC:15770
15. The record be sent back forthwith, so as to reach the
learned Appellate Court well before the date fixed.
16. The present petition stands disposed of and so are the
miscellaneous applications, if any.
(Rakesh Kainthla)
Judge
7th April, 2025
(Ritu)
[ad_1]
Source link