Judgment:
Judgment
A. K. Srivastava, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure for setting aside order dated 11.11.97 passed by Mr. D.S. Paweriya, Additional Sessions Judge, Delhi, in Crl. A. No. 3/97 and order dated 19.11.97 passed by Mr. Gurdeep Singh Saini, Metropolitan Magistrate, Delhi. Copies of the aforesaid two orders are on the record at pages 4 to 8 and pages 9 to 10 respectively.
2. The facts of the case are that the four petitioners herein were convicted and sentenced under Sections 365, 452, 380 and 448 IPC in a case arising out of FIR 872/78 by orders dated 7.7.90 and 26.7.89 respectively. An appeal against the conviction and sentence being Crl.A. 3/97 was filed by the convicts. That appeal was taken up for hearing by Mr. D.S. Paweriya, ASJ. It appears that during the course of hearing of the appeal, the learned Addl. Sessions Judge was told that no fine was imposed under Sections 365, 380 and 452 IPC though these sections make it mandatory for imposition of fine. Consequently the learned Addl. Sessions Judge on agreement remanded the case to the trial court with the direction to pass sentence keeping in view the legal provisions. This remand order is the first impugned order before me.
3. Consequent to such remand order the concerned magistrate passed order dated 19.11.97 whereby mandatory imposition of fine was directed. This order is the second impugned order before me.
4. On perusal of the order of the learned Addl. Sessions Judge it transpires that the learned APP appearing for the State and the learned counsel for the complainant had agreed that the case be remanded to the learned M.M. for passing order of sentence in accordance with the mandatory provisions for imposition of fine contained in Sections 365, 380 and 452 IPC. It is also to be observed that Mr. Kuldeep Kumar, Advocate who appeared on behalf of Mr. O.P. Soni, Counsel for the accused appellants, also submitted that the accused had no objection for remanding the case to the trial court.
5. The grievance of the accused appellants before me in this petition is that they were under the impression that the whole trial was going to be remanded and not that the case was going to be remanded only for further sentence in accordance with the said mandatory provisions. Their learned counsel contends that their appeal against conviction ought to have been decided by the appellate court and in case the appellate court felt that the sentence was not in accordance with the mandatory provisions of the aforesaid three sections the appellate court could after notice impose fine if the appeal was to be dismissed. Learned counsel for the petitioners says that now the petitioners are no where as their appeal against conviction has not been decided on merits which the appellate court ought to have done.
6. In the prayer clause of this petition I find that the petitioners have only prayed that the order dated 11.11.97 passed by the Additional Sessions Judge and the order dated 19.11.97 passed by the Metropolitan Magistrate, Delhi, be set aside. However, during the course of hearing learned counsel for the petitioners made a request that after setting aside the two impugned orders the learned Additional Sessions Judge be directed to hear Crl.A. No.3/97 on merits and if the learned appellate court feels that sentence is not adequate he may pass necessary orders after due notice to the appellants as is required under Section 386 of the Code.
7. Learned counsel appearing for the State agreed to the aforesaid prayer.
8. I have given my careful consideration and thought to the matter. It is apparent on the record that the impugned order dated 11.11.97 passed by learned Additional Sessions Judge was an agreed order and that the impugned order dated 19.11.97 was made by the learned Magistrate as per directions dated 11.11.97 given by the appellate court. When the order dated 11.11.97 had been passed on agreement by the learned Additional Sessions Judge, it would not be proper to interfere with it under Section 482 of the Code. However, keeping in view the consequential situation which has arisen it may be appropriate to give certain directions.
9. On perusal of the first impugned order dated 11.11.97 it is not clear as to what the learned Additional Sessions Judge proposed to do in the matter. Whether he was to hear the appeal again after getting amended sentence order from the court of the magistrate or he had disposed of the appeal with the only direction to the concerned magistrate to impose sentence of fine as well in view of the mandatory provisions of the relevant sections of the IPC? If the learned appellate court has finally disposed of the appeal then, in my opinion, substantial justice has not been done to the petitioners/appellants as in his judgment and order merits of the appeal have not been decided. No doubt, the learned Additional Sessions Judge has stated the respective arguments but he has not made any discussion about their merits and de-merits and has not given his findings on the controversy raised. To my mind it appears that the learned Additional Sessions Judge has not yet decided the said criminal appeal and he was only to wait for amended order regarding sentence. In the impugned order of the learned magistrate dated 19.11.97 it is to be found that the convicts were directed to appear before the learned Sessions Court on 24.11.97. thereforee, it appears that the matter is pending before the learned Additional Sessions Judge.
10. In view of the above, this petition is disposed of with the directions that Mr. D.S. Paweriya, Additional Sessions Judge, Delhi, shall hear Crl.A. No.3/97 on merits and shall decide it in accordance with law. The petitioners have enough notice of the mind of the learned Additional Sessions Judge that mandatory sentence of imposition of fine had not been awarded by the trial court. Now the trial court has awarded the mandatory imposition of fine and the quantum of fine is also known to the petitioners/appellants. Accordingly, the petitioners/appellants may submit their arguments before the learned Additional Sessions Judge hearing the appeal on the point of sentence as well including imposition of fine by order dated 19.11.97 passed by Shri Gurdeep Singh Saini, MM, Delhi. In case the learned Additional Sessions Judge does not allow appeal then he is directed to form his own opinion about the quantum of sentence whether of imprisonment or imposition of fine while giving his Judgment and order in the criminal appeal.
11. With the aforesaid observations and directions, this petition is disposed of.
12. Let a copy of this order be sent to the concerned additional Sessions Judge.