Emperor Vs. Ganda Singh - Court Judgment

Excerpt:
criminal procedure code (act v of 1898), sections 35, 397, 438, 439 - accused convicted in two separate cases--second sentence ordered to run from date o] order--direction illegal--concurrent sentence, when can be passed--revision--effect to be given to real intention of magistrate--reduction of sentence. - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. orderkensington, j.1. the additional district magistrate, when sentencing ganda singh on the 19ih april 1910 (case no. 24-7 of 1910), overlooked the application of section 35, criminal procedure code.it is only in case of separate convictions at one trial that the question arises whether sentences should he concurrent or consecutive. in all other cases, section 397 is imperative.2. ganda singh had been previously convicted by the same magistrate on 30th march 1910 and sentenced to 4 years' imprisonment, since reduced to two years on appeal. the magistrate was not competent to direct that the fresh sentence of 19th april 1910 should run from the date of his order and that portion of his order is set aside.3. it seems to have been the magistrate's intention that ganda singh should undergo a total period of 4 years' imprisonment. to give effect to this intention, as near as may be, it is hereby ordered on revision that the second sentence of 19th april 1910 be so far reduced that the period of imprisonment for that offence shall be for two years instead of three years, to commence on expiry of the sentence awarded on the earlier conviction of 30th march 1910.

Judgment:
ORDER

Kensington, J.

1. The Additional District Magistrate, when sentencing Ganda Singh on the 19ih April 1910 (Case No. 24-7 of 1910), overlooked the application of Section 35, Criminal Procedure Code.

It is only in case of separate convictions at one trial that the question arises whether sentences should he concurrent or consecutive. In all other cases, Section 397 is imperative.

2. Ganda Singh had been previously convicted by the same Magistrate on 30th March 1910 and sentenced to 4 years' imprisonment, since reduced to two years on appeal. The Magistrate was not competent to direct that the fresh sentence of 19th April 1910 should run from the date of his order and that portion of his order is set aside.

3. It seems to have been the Magistrate's intention that Ganda Singh should undergo a total period of 4 years' imprisonment. To give effect to this intention, as near as may be, it is hereby ordered on revision that the second sentence of 19th April 1910 be so far reduced that the period of imprisonment for that offence shall be for two years instead of three years, to commence on expiry of the sentence awarded on the earlier conviction of 30th March 1910.