Mohammed Salim Husen Sab Savantanavar Vs. Health Inspector, H.D.M.C., Hubli - Court Judgment

Excerpt:
- code of civil procedure, 1908. order 13, rule 7(2): [h.g. ramesh, j] return of document impounder for being insufficiently stamped and not admitted in evidence though order 13 rule 7(2) of cpc provides for return of document not admitted in evidence, chapter iv of the karnataka stamp act overrides the said provision. it is not permissible for the court or any other authority to return any document not duly stamped till it is dealt with as provided under chapter iv of the stamp act. -- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 33(1): [h.g. ramesh, j] return of document which is impounded for not duly stamped and not admitted in evidence document produced by the plaintiff was insufficiently stamped -defendants application under order 13 rule 8 c.p.c., to impound the document trial court ordering impounding of the document held, as the document dated 06-11-2004 produced by plaintiff did not bear proper stamp duty, the document was liable to be impounded. though order 13, rule 7(2) of c.p.c., provides for return of document not admitted in evidence, chapter iv of the stamp act overrides the said provision inasmuch as a special enactment overrides a general enactment. having regard to the provisions of chapter iv of the stamp act, it is not permissible for the court or any other authority to return any document not duly stamped till it is dealt with as provided under the said chapter. - and if this happens often the working of the court would become well nigh impossible. the court might as well appoint a counsel at state cost to argue on behalf of the appellants. since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the high court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel after hearing counsel appointed by the court to argue on their behalf .5. in view of this position of law, the learned sessions judge could have dismissed the case for default, if the appellant's counsel was not present.order1. this criminal revision petition filed under section 397 of the code of criminal procedure against the order dated 8-10-1990 passed by the first additional sessions judge, dharwad, sitting at hubli, in criminal appeal no. 39/1989 confirming the order dated 15-3-1989 passed by the j.m.f.c., (ii court), hubli, in c.c. no. 1713 of 1988. 2. i have heard the learned counsel for the petitioner and the learned counsel for the respondent. revision petition is admitted. 3. the petitioner was prosecuted for the offence under section 7(1) of the prevention of food adulteration act read with section 16(1)(a) of the p.f.a. act and he was convicted under section 252 of the code of criminal procedure by the learned magistrate on the ground that he pleaded guilty and he was sentenced to undergo simple imprisonment for six months and to pay a fine of rs. 1,000/- in default to undergo simple imprisonment for one month. 4. the petitioner preferred an appeal before the first additional sessions judge, dharwad and it came to be heard by the first additional sessions judge sitting at hubli, in criminal appeal no. 39/1989. the learned first additional sessions judge had observed in para 5 of his order when the appeal was taken up for hearing, as follows : 'the appellant and his counsel remained absent and as such arguments on his behalf were not heard.' the learned sessions judge has disposed of the case on merits. in ilr 1990 karnataka 161 : (1990 cri lj 286), it has been held by this court, appeal cannot be disposed of on merits without hearing accused or his counsel. the judgment of this court is based on the judgment of the supreme court, reported in air 1987 sc 1500 : (1987 cri lj 1856) ram naresh yadav v. state of bihar. it has been held in that case as follows (at page 1500 (of air)) : 'it is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. it is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. and if this happens often the working of the court would become well nigh impossible. we are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. the court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the bar council with this end in view. but the matter can be disposed of on merits only after hearing the appellant or his counsel. the court might as well appoint a counsel at state cost to argue on behalf of the appellants. since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the high court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel after hearing counsel appointed by the court to argue on their behalf .........' 5. in view of this position of law, the learned sessions judge could have dismissed the case for default, if the appellant's counsel was not present. he could not have disposed of this case on merits. hence the order of the learned sessions judge is liable to be set aside. 6. in the result, i make the following.

Judgment:
ORDER

1. This Criminal Revision Petition filed under section 397 of the Code of Criminal Procedure against the order dated 8-10-1990 passed by the First Additional Sessions Judge, Dharwad, sitting at Hubli, in Criminal Appeal No. 39/1989 confirming the order dated 15-3-1989 passed by the J.M.F.C., (II Court), Hubli, in C.C. No. 1713 of 1988.

2. I have heard the learned counsel for the Petitioner and the learned counsel for the respondent.

Revision petition is admitted.

3. The petitioner was prosecuted for the offence under section 7(1) of the Prevention of Food Adulteration Act read with Section 16(1)(a) of the P.F.A. Act and he was convicted under section 252 of the Code of Criminal Procedure by the learned Magistrate on the ground that he pleaded guilty and he was sentenced to undergo Simple Imprisonment for six months and to pay a fine of Rs. 1,000/- In default to undergo simple imprisonment for one month.

4. The petitioner preferred an appeal before the First Additional Sessions Judge, Dharwad and it came to be heard by the First Additional Sessions Judge sitting at Hubli, in Criminal Appeal No. 39/1989. The learned First Additional Sessions Judge had observed in para 5 of his order when the appeal was taken up for hearing, as follows :

'The appellant and his counsel remained absent and as such arguments on his behalf were not heard.'

The learned Sessions Judge has disposed of the case on merits. In ILR 1990 Karnataka 161 : (1990 Cri LJ 286), it has been held by this Court, Appeal cannot be disposed of on merits without hearing accused or his counsel. The judgment of this Court is based on the judgment of the Supreme Court, reported in AIR 1987 SC 1500 : (1987 Cri LJ 1856) Ram Naresh Yadav v. State of Bihar.

It has been held in that case as follows (at page 1500 (of AIR)) :

'It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when Criminal Appeals are called out it would hamper the working of the Court and create a serious problem for the Court. And if this happens often the working of the Court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The Court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The Court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel after hearing counsel appointed by the Court to argue on their behalf .........'

5. In view of this position of law, the learned Sessions Judge could have dismissed the case for default, if the appellant's counsel was not present. He could not have disposed of this case on merits. Hence the order of the learned Sessions Judge is liable to be set aside.

6. In the result, I make the following.