Full Judgment
T.M. Hassan Pillai, J.
1. The revision petitioner is the convicted accused in C.C. No. 1294/1996 on the fileof the Judicial 1st class Magistrate Court-II, Erankulam and she was convicted for thecommission of the offence punishable under Section 58 of the Abkari Act. Revision petitionerwas tried for the alleged commission of the offences punishable under Sections 55(a) and55(i) of the Abkari Act and the learned Magistrate, on scrutiny and evaluation of theevidence led by the prosecution in support of its case, came to the conclusion that theprosecution dismally failed to prove the offences punishable under Section 55(a) and 55(i)of the Abkari Act and acquitted her of the charge levelled against on these two counts.He convicted her for the offence under Section 58 of the Abkari Act. Consequent onconviction the revision petitioner was sentenced to pay a fine of Rs. 2000 with a default clause to undergo simple imprisonment for 20 days.
2. Assailing the conviction of her for the offence punishable under Section 58 of theAbkari Act, the revision petitioner preferred Crl. A. 601/2000 and the learned SessionsJudge, Ernakulam, on reappraisal of the evidence, altered the finding of guilt recordedby the trial Magistrate under Section 58 of the Abkari Act to one under Section 55(a) of theAbkari Act. While altering the finding the Sessions Judge maintained the sentence offine imposed upon the revision petitioner by the trial court and directed the trial courtto execute the sentence.
3. Counsel for the revision petitioner is well founded in his submission that theconviction of the revision petitoner under Section 55(a) of the Abkari Act by the learnedSessions Judge is not sustainable on the ground that no appeal has been preferred bythe State against the order of acquittal of the revision petitoner for the offence underSection 55(a) and 55(i) of the Abkari Act by the trial court and the acquittal of revisionpetitoner has attained finality. Counsel also rightly submitted that appeal has beenpreferred against the order of conviction of the appellant therein (revision petitioner)for the offences under Section 58 of the Abkari Act and the powers conferred on anappellate court under Section 386(b)(iii) is clearly confined to cases of appeal prefererdagainst order of conviction and sentence and the powers conferred by this clausecould not be exercised for the purpose of reversing an order of acquittal passed infavour of revision petitioner. The decision rendered by the Supreme Court in State ofA. P. v. Thadi Narayana (AIR 1962 SC 240) is cited before me by the learned counselto canvass for the position that the learned Sessions Judge against the clear mandateof Section 386(b)(ii) and without jurisdiction altered the order of acquittal passed by the trialMagistrate under Section 55(a) of the Abkari Act to one of conviction under Section 55(a) of theAct holding that such a power is conferred on him by Section 386(b)(ii).
4. For appreciating the contention vigorously urged before me it is appropriate toextract here Section 386(b)(ii) and (iii):
386. Powers of the Appellate Court:- After perusing such record and hearing theappellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case ofan appeal under Section 377 or Section 378, the accused, if he appears the appellate court may if it considersthat there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) xxx xxx xxx (b) in an appeal from a conviction-
(i) xxx xxx xxx (ii) alter the finding, maintaining the sentence; or
(iii) with or without altering the finding, alter the nature or the extent, or thenature and extent, of the sentence, but no so as to enhance the same;
Section 386(b)(ii) and (iii) corresponds to Section 423(1)(b) and (3) of Code of CriminalProcedure, 1898. Section 423(1)(b) reads thus:
'423. (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader if heappears and the Public Prosecutor, if he appears, and in case of an appeal under Section 411-A, Sub-section(2) or Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficientground for interfering, dismiss the appeal, or may-
(a) xxx xxx xxx (b) in an appeal from conviction, (1) reverse the finding and sentence, and acquit ordischarge the accused, or order him to be retried by a Court of competent jurisdictionsubordinate to such Appellate Court or committed for trial or (2) alter the finding,maintaining the sentence, or with without altering the finding, reduce the sentence,or, (3) with or without such reduction and with or without altering the finding, alter thenature of the sentence, but, subject to the provisions of Section 106, Sub-section (3), not so asto enhance the same;'
Section 386(b)(ii) in terms deals with an appeal from a conviction and Section 386(b)(ii) is clearlyconfined to cases of appeals preferred against orders of conviction and sentence.The powers conferred by this clause cannot be exercised for the purpose of reversingan order of acquittal passed in favour of a party in respect of an offence chargedwhile dealing with an appeal preferred by him against the order of conviction in respectof another offence charged and found proved. The meaning of the expression 'alter the finding' is alter the finding of conviction and not the finding of acquittal. The orderof acquittal passed by the trial court does not fall for consideration in the appealpreferred by the revision petitioner against her conviction under Section 58 of the AbkariAct and the order of conviction alone falls for consideration. The whole case is notbefore the appellate court when it entertains an appeal against conviction.
5. The Supreme Court had occasion to consider Section 423(1)(b) in the decision citedsupra and laying down the law the Apex Court held thus:
'If an order of conviction is challenged by the convicted person but the order of acquittalis not challenged by the State then it is only the order of conviction that falls to be consideredby the Appellate Court and not the order of acquittal. Therefore, the assumption that the wholecase is before the High Court when it entertains an appeal against conviction is not well foundedand as such it cannot be pressed into service in constructing the expression 'alter the finding' has only one meaning, and that is 'alter thefinding of conviction and not the finding of acquittal'.
The Supreme Court in the above cited case further held that power conferredunder Section 423(1)(b)(1) cannot be exercised for the purpose of reversing an order ofacquittal passed in favour of a party in respect of an offence charged in dealing withan appeal preferred by him against an order of conviction in respect of another offencecharged and found proved.
6. In State of West Bengal v. Laisel Haque (AIR 1989 SC 129) the SupremeCourt held that in the absence of an appeal preferred by the State against the acquittalthe Appellate Court cannot under Section 386(b) in appeal by a party against his convictionalter the acquittal nor can there be a splitting up of the trial. Section 386(b)(ii) only providesfor altering the finding and maintaining the sentence and that can only apply to caseswhere the finding of guilt under one section is altered to a finding of guilt under another.A clear distinction is made by Section 386(b) between a reversal of a finding and its alterationand provides that when there is a reversal, the order to be passed is one of acquittal,discharge or retrial, whereas when there is an alteration the order to be passed in oneof maintaining, reducing or altering the sentence.
7. Order of acquittal of the revision petitoner passed by the trial court for theoffence under Section 55(a) of the Abkari Act (acquittal attained finality) was upturned bythe learned Sessions in an appeal preferred by her against the order of conviction ofher for an offence under Section 58 of the Abkari Act and the Sessions Judge withoutjurisdiction altered the finding of acquittal recorded by the trial court to convictionunder Section 55(a) against clear mandate of Section 386(b)(ii). The proper course open to meis to set aside the order of conviction recorded by the learned Sessions Judge for theoffence punishable under Section 55(a) and remit the appeal for reconsideration of thequestion whether the order of conviction passed by the trial court under Section 58 of theAbkari Act is sustainable or not.
8. In the result, the revision is allowed setting aside the impugned order passed bythe learned Sessions Judge convicting the revision petitoner for the offence underSection 55(a) of the Abkari Act and the matter is remitted to the Sessions Court for consideringafresh the appeal preferred by the revision petitioner against his conviction under Section 58of the Abkari Act in accordance with law. Revision petitioner is directed to appearbefore the appellate court on 1.1.2002.