Kaloo Khan Vs. State of M.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. similarly, rule 123 of the rules mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part.....ordermaithli sharan, j.1. this criminal revision petition under section 397/401 of the code of criminal procedure arises out of the judgment passed by the second additional sessions judge, ashok nagar district-guna in criminal appeal no. 159/97 dt. 25-6-98, maintaining the order of conviction passed against the petitioner by the additional chief judicial magistrate, ashoknagar districtguna under section 25 of the arms act, and enhancing the sentence of imprisonment from 8 months r.i. to one year r.i.2. the brief facts of the case, lying in a narrow compass, leading to the filing of this petition, are thus; on 5-1-90 the petitioner was arrested under section 151 of the code of criminal procedure and during the search being made he was found in possession of a country made gun in two pieces.....

Judgment:
ORDER

Maithli Sharan, J.

1. This criminal revision petition under Section 397/401 of the Code of Criminal Procedure arises out of the judgment passed by the Second Additional Sessions Judge, Ashok Nagar District-Guna in Criminal Appeal No. 159/97 dt. 25-6-98, maintaining the order of conviction passed against the petitioner by the Additional Chief Judicial Magistrate, Ashoknagar DistrictGuna under Section 25 of the Arms Act, and enhancing the sentence of imprisonment from 8 months R.I. to one year R.I.

2. The brief facts of the case, lying in a narrow compass, leading to the filing of this petition, are thus; On 5-1-90 the petitioner was arrested under Section 151 of the Code of Criminal Procedure and during the search being made he was found in possession of a country made gun in two pieces for which he had no licence. The said gun, found to be in working order, was seized by the police and a case for the offence under Sections 25 and 27 of the Arms Act, 1959 was registered against the petitioner, the same day. The investigation was done and after obtaining the permission from the District Magistrate, Guna the charge sheet was filed by the police against the petitioner in the Court of the concerning Magistrate. Learned Additional Chief Judicial Magistrate, Ashok Nagar, Guna framed charges for the offences under Sections 25 and 27 of the Arms Act against the petitioner and conducted the trial of the Criminal Case No. 201/90. The prosecution witnesses were examined in the case and after careful scrutiny of the evidence adduced by the prosecution the learned trial Magistrate came to the conclusion that an offence under Section 25 of the Arms Act was proved against the petitioner. Therefore, he convicted the petitioner for the said offence and sentenced him to undergo rigorous imprisonment for 8 months, coupled with a fine of Rs. 100/-. However, the petitioner was acquitted under Section 27 of the Arms Act. Being aggrieved by the order of conviction and sentence passed by the learned trial Magistrate the petitioner preferred an appeal in the Court of Session. Learned Additional Sessions Judge, Ashoknagar, District-Guna dismissed the appeal as aforesaid and enhanced the sentence of imprisonment from 8 months to one year R.I., besides maintaining the sentence of fine of Rs. 100/-. Now, the petitioner has preferred this revision petition challenging the appellate Court's judgment.

3. I have heard learned counsel on both the sides at length and have perused the record of the case. The main thrust of the learned counsel for the petitioner is that since, admittedly, the State had not filed any appeal in the High Court under Section 377 of the Code of Criminal Procedure against the sentence passed by the learned trial Magistrate on the ground of its inadequacy, it had become final, and the learned appellate Court had no jurisdiction to enhance the sentence of imprisonment against the petitioner from 8 months R.I. to one year R.I. Besides, the learned counsel has also submitted that under the facts and circumstances of the case the petitioner now deserves to be sentenced for the period of imprisonment, of approximately six months, he has already undergone. On the other hand the argument of the learned panel lawyer appearing for the State is that since the minimum sentence to be passed for the offence under Section 25(1-B)(a) of the Arms Act is one year, hence it could not be said that the order of the appellate Court enhancing the sentence passed against the petitioner was without jurisdiction.

4. Keeping in mind the arguments advanced by the learned counsel on both the sides, the first and the foremost point to be pondered over in this petition is as to whether the order enhancing the sentence of imprisonment by the appellant Court from 8 months R.I. to one year R.I. was beyond jurisdiction. It is true that under Section 25(1-B)(a) of the Arms Act, 1959 the minimum punishment of imprisonment is provided, and it is 'one year', but proviso appended to it goes to indicate that for any special and adequate reason recorded in the Judgment the Court may impose a sentence of imprisonment for a term of less than one year. In the instant case, looking to the judgment of conviction and sentence dt. 17-3-97 passed by the learned trial Magistrate in Criminal Case No. 201/90 it is apparent that while passing the sentence of 8 months R.I. against the petitioner he had well kept in mind the peculiar facts and circumstances of the case and only under those circumstances he had passed the sentence against the petitioner for 8 months R.I. coupled with fine of Rupees 100/-. Thus, on the factual aspects of the case it cannot be said that the order of the learned trial Magistrate in regard to passing of the sentence against the petitioner was legally defective. Even otherwise, though the position obtaining in the instant petition is peculiar, yet I am of the view that learned appellate Court had no jurisdiction to enhance the sentence passed in the instant case.

5. For enhancing the sentence of imprisonment the specific provision is engrafted under Section 377(1) of the Code of Criminal Procedure which runs as under :

377. (1) Save as otherwise provides in Sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the public prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

Admittedly, as observed above, the State had not preferred any Appeal to the High Court for enhancement of the sentence passed by the learned trial Magistrate. Thus, obviously, the sentence passed by the learned trial Magistrate against the petitioner could not be enhanced. The petitioner had preferred an appeal in the Court of Session against the order of conviction and sentence passed by the learned trial Magistrate. The powers of the appellate Court in appeal from conviction are enumerated under Section 386(b) of the Code of Criminal Procedure, which runs thus :

386. After perusing such record and hearing the appellant or his pleader, if he appears, and the public prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) xxx xxx xxx (b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same:

(c) to (e) xxx xxx xxx (Underlining supplied by me)

Looking to the above provision, it is amply clear that the appellate Court has no power to enhance the sentence passed by the trial Court. I am of the opinion that keeping in view the provisions of Sections 377(1) and 386 of the Code of Criminal Procedure it is but clear that when no appeal was filed by the State under Section 377(1) of the Code of Criminal Procedure against the sentence of imprisonment awarded by the trial Court on the ground of its inadequacy, the order enhancing the sentence passed by the learned appellate Court was beyond its jurisdiction. Thus, on this very count the impugned order in regard to enhancement of sentence passed by the learned appellate Court deserves to be set aside, and it is, therefore, set aside.

6. Learned counsel for the petitioner has also submitted that looking to the facts and circumstances of the case the sentence passed by the learned trial Court may be modified and the petitioner be sentenced to the imprisonment he has already undergone. On the basis of the record it is found that the petitioner has already undergone approximately six months rigorous imprisonment. The facts also disclose that even the gun, involved in the case, was not produced in the Court. Under all these factual circumstances, coupled with the fact that the case is an old one of 1990, I find substance in the submissions made by the learned counsel for the petitioner. Thus, the sentence of eight months R.I. passed against the petitioner by the learned trial Court is modified to the sentence of imprisonment he has already undergone.

7. In the result, this petition is partly allowed in the manner indicated above. The petitioner is on bail. His bail bonds and surety bonds are discharged.