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Fazal Rab Choudhary Vs. State of Bihar

Fazal Rab Choudhary vs State of Bihar

Type Court Judgment Court Supreme Court of India Decided Sep 13, 1982
~2 min read
https://sooperkanoon.com/case/641813

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Citation
Court
Supreme Court of India
Judge
Decided On
Case Number
Criminal Appeal No. 479 of 1982
Subject
Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- [J.R. Mudholkar,; K. Subba Rao,; R.S.Bachawat,; Raghuvar Dayal and; V. Ramasw, JJ.] A firm doing business in Bombay entrusted goods worth Rs. 35,500 the Railway for delivery in Delhi. The goods were consigned to "self" and the firm endorsed the railway receipts to a Bank against an advance of Rs. 20,000 made by t...

Key legal issue
Criminal
Acts & sections
Indian Penal Code (IPC) - Sections 377

Parties & Advocates

Appellant / Petitioner

Fazal Rab Choudhary

Respondent

State of Bihar

Legal References

Acts
Indian Penal Code (IPC) - Sections 377
Reported In
AIR1983SC323; 1983CriLJ632; 1982(1)SCALE803; (1982)3SCC9

Excerpt

.....goods covered by the said receipts, to the bank, and the bank being the pledgee could maintain the suit for the recovery of the full value of consignment amounting to rs. 35,500. [264 h; 265 d-e] on a reasonable construction of s. 178 of the contract act, 1872, ss. 4 and 137 of the transfer of property act, 1882, and ss. 30 and 53 of the indian sale of goods act, 1930, an owner of goods, can make a valid pledge of them by transferring the railway receipt representing the said goods. to the general rule expressed by the maxim nemo dat quod non habet (no one can convey a better title than what he had), to facilitate mercantile transactions. the indian law has grafted some exceptions, in favour of bonafide pledgees by transfer of documents of title from persons. whether owners of goods who do not possess the full bundle of rights of ownership at the time the pledges are made, or their mercantile agents. to confer a right to effect a valid pledge by transfer of document of title relating to goods on persons with defects in their title to the goods. and on mercantile agents, and to deny it to the full owners thereof, is to introduce an incongruity into the act. on the other hand, the real intention of the legislature will be carried out if the said right is conceded to the full owner of goods and extended by construction to persons with defects in their title to the goods or to mercantile agents. a pledge being a bailment of goods under s. 172 of the contract act, the pledgee, as a bailee. will have the same remedies as the owner of the goods would have against a third person for deprivation of the said goods or injury to them under s. 180 of the act. [264 a-c, h] ramdas vithaldas durbar v.s. amarchand and co., (1916) l.r. 43 i.a. 164 and the official assignee of madras v. the mercantile bank of india, ltd. (1934) l.r. 61 i.a. 416, referred to. per mudholkar and ramaswami jj. (dissenting): there was no valid pledge of the consignments of goods represented by the.....order1. special leave limited to the question of sentence only.2. appellant is convicted for having committed an offence under section 377 i.p.c., in that he committed an unnatural offence upon a young boy who had come to his house to take a syringe. the learned magistrate convicted him for the aforementioned offence and sentenced him to suffer r.i. for three years. while recording the order of sentence, the learned magistrate observed:although no previous conviction is proved against the accused but i think accused is not entitled to get any benefit of probation in this case because offence is serious and heinous. i, therefore, sentence the accused to undergo r.i. for three years.the appellant preferred an appeal which was heard by addl. judicial commissioner, ranchi. the appellate court affirmed the finding of the trial court and accordingly confirmed the conviction. the learned judge has not discussed the question of adequacy or otherwise of the sentence imposed upon the appellant. when the matter was taken to the high court in revision at the instance of the appellant, the learned judge of the high court dismissed the revision in limine, observing that the case has been proved and the revision is without merits.3. the offence is one under section 377 i.p.c., which implies sexual perversity. no force appears to have been used. neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. however in judging the depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. we feel there is some scope for modification of sentence. having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to r.i. for 6 months. to the extent of this modification in the sentence, the appeal is allowed.

Full Judgment

ORDER

1. Special leave limited to the question of sentence only.

2. Appellant is convicted for having committed an offence under Section 377 I.P.C., in that he committed an unnatural offence upon a young boy who had come to his house to take a syringe. The learned magistrate convicted him for the aforementioned offence and sentenced him to suffer R.I. for three years. While recording the order of sentence, the learned Magistrate observed:

Although no previous conviction is proved against the accused but I think accused is not entitled to get any benefit of probation in this case because offence is serious and heinous. I, therefore, sentence the accused to undergo R.I. for three years.

The appellant preferred an appeal which was heard by Addl. Judicial Commissioner, Ranchi. The Appellate Court affirmed the finding of the trial court and accordingly confirmed the conviction. The learned judge has not discussed the question of adequacy or otherwise of the sentence imposed upon the appellant. When the matter was taken to the High Court in revision at the instance of the appellant, the learned judge of the High Court dismissed the revision in limine, observing that the case has been proved and the revision is without merits.

3. The offence is one under Section 377 I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. However in judging the Depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. We feel there is some scope for modification of sentence. Having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to R.I. for 6 months. To the extent of this modification in the sentence, the appeal is allowed.

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