The State Vs. Mohinder Singh - Court Judgment

Excerpt:
- 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. - the statementthere made was, i had removed the 'karas',had pushed the boy into the well and hadpledged the 'karas' with allah din',and inconsequence of the information so received the'karas' were recovered- from allah din. sir john beaumont on page 13 observed as follows :the condition necessary to bring the sectioninto operation is that the discovery of a factin consequence of information received froma person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information asrelates distinctly to the fact thereby discovered may be proved. ' it was further held in this judgment that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.kapur, j.1. this is an appeal brought by the state against the order of acquittal of mohinder singh by the learned sessions judge dated 14-7-1950, allowing an appeal against the order of conviction passed by mr. s. p. jain, magistrate 1st class, who had convicted mo-hinder singh under section 19(f), arms act, and imposed a sentence 'of one year's rigorous imprisonment.2. mohinder singh was arrested on 26-4-1950 in connection with a case of dacoity. on 9-5-1950, he made a statement to assistant sub inspector teja singh of the anti dacoity staff in which he stated 'that he had concealed a pistol under a 'shisham' tree in kang mai and that he would point out the place and have it recovered'. the assistant sub inspector then took the accused, gurdit singh lambardar and dasondha singh and in the presence of these two persons the accused took out the pistol ex. p. 1 from inside the reeds. it was wrapped in a torn piece of cloth. the accused was'then tried under section 19(f), arms act, and although he was convicted by the magistrate he was quitted by the sessions judge, as i have said above. the learned sessions judge remarked in his judgment that it had not been proved that the pistol recovered at the instance of the accused 'belonged to any one' and was stolen, nor is there evidence to prove that the police, had received information that the accused was keeping an unlicensed pistol and, therefore, there was no occasion for the police to interrogate the accused with regard to the pistol and if no interrogation was necessary the statement made to the police could not be said to be voluntarily made. he, therefore, disbelieved the story. the state has come up in appeal to this court.3. assistant sub inspector teja singh as p. w. 3 has stated that he interrogated the accused and during the course of this interrogation the accused 'stated about the concealment of the pistol. the other witnesses relied upon by the prosecution are p. w. 1 dasondha singh and p. w. 2 gurdial singh, p w. 1 dasondha singh deposed 'the accused stated that he had kept buried a country-made pistol under the 'tahli' tree outside the village and that he could produce it by taking it out from there. the accused pointed out that place and dug out the pistol * * * and produced the same.' in his statement gurdial singh p. w. 2 has deposed that the accused stated that he had a pistol which he kept under a 'shisham' tree in kang mai. the statement of p. w. 3 assistant sub inspector teja singh is only this that the accused had said that he had concealed the pistol under a 'shisham' tree. from these statements it is quite clear that as a result of the statement of the accused a pistol which was licensed was recovered.4. it has been submitted by mr. kesar that the statement made by the accused is inadmissible in evidence, because sections 25 and 26 and section 27 which is only a proviso to the previous section make it so. in support of his contention he has relied on a judgment of the learned chief justice (weston c. j.) in -- 'cr. r. no. 961 of 1951' where the statement made by the accused is not given but the learned chief justice has put the matter as follows:'after a while the accused is said to have made a confession and to have offered to produce the fire-arms. he then took the police and party inside a room and from a box in which there were clothes produced a rifle and a pistol.'the learned chief justice held this not to be admissible and observed;'in such circumstances i myself have always been unable to understand how section 27 can apply to the statement, which is in no way the cause of the articles being found. i am aware that there are certain rulings which on the argument that the matter forms one transaction, hold that the discovery can be said to be in consequence of the information given. i prefer however the view i have set out. i, therefore, hold that the statement jn the present case in no way advances the prosecution case beyond the production which on the evidence undoubtedly was made by the accused.'the same view was taken by the learned chiefjustice in two other revision petitions -- 'crl.revn. no. 706 of 1951' and 'crl. revn. no. 883of 1951.'5. the accused -was tried for an offenceunder section 19(f) which is in the following words:'whoever commits any of the following offences (namely): ' xx x x (f) has in his possession or under his control any arms, ammunitiori or military stores in contravention of the provisions of section 14 or section 15; xx x x.' 6. the question to be decided in this caseonly is this whether the accused had in hispossession or under his control any pistol. itdoes not matter whether it belonged to himor it belonged to anybody else or was stolenor was not stolen. an offence under section 19(f)is completed as soon as it is shown that hehad such a pistol under his possession or control. the evidence of the various witnessesshows that the accused made a statement tothe police and also pointed out the place wherethe pistol was and brought it out. this evidence, in my opinion, is sufficient to provecontrol. the argument which was raised bymr. kesar in this court that such evidence isnot admissible is, in my opinion, unsustainable.in -- 'sukhan v. emperor', 10 lah 283 (fb) thequestion of interpretation of section 27 was discussedby a full bench of that court. the statementthere made was, 'i had removed the 'karas',had pushed the boy into the well and hadpledged the 'karas' with allah din', and inconsequence of the information so received the'karas' were recovered- from allah din. thequestion was what portion of the statement wasadmissible in evidence. sir shadj lal, chiefjustice, who wrote the leading judgment heldthat the only portion admissible was the pledging of the ornaments with allah din. in--'ganuhandra v. emperor', 56 bom 172, the statement made was :'every accused except accused no. 9 first gaveus information that he would point out theplace where his share of the property stolenin the dahiwadi dacoity case was buried andoffered to produce the same.'and it was held that the statement that theywould point out the places where the propertywas buried was admissible in evidence, but therest was hot. these two cases have receivedthe approval of their lordships of the privycouncil in -- 'pulukuri kottaya v. emperor',ilr (1948) mad 1 (pc). there the statementmade was as follows:'about 14 days ago, i kotayya and people of my party lay in wait for sivayya and others at, about sunset time at the corner of pulipad tank. we, all beat boddupati china sivayya and subayya to death. the remaining persons pullayya, kotayya and narayana ran away. dondapati ramayya who was in our party received blows on his hands. he had a spear in his hands. he gave it to me then. i hid it and my stick in the rick of venkata-narasu in the village. i will show if you come. we did all this at the instigation of pulukuri kotayya.'it was held that the whole of the statement except the passage 'i hid it (a spear) and my stick in the rick of venkatanarasu in the village. i will show if you come' is inadmissible. sir john beaumont on page 13 observed as follows :'the condition necessary to bring the sectioninto operation is that the discovery of a factin consequence of information received froma person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information asrelates distinctly to the fact thereby discovered may be proved.'proceeding his lordship observed: 'normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.' it was further held in this judgment that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.7. it is clear from the observations of sir john beaumont that section 27 is available even when a person in police custody produces from some place of concealment some object said to be connected with the crime and the only thing which is inadmissible in evidence is that portion of the statement in which the accused confesses some past user or the history of the object produced. the view of the learned chief justice that a statement made by the accused with regard to the presence of an object at a particular place becomes inadmissible as soon as he takes the police to the place where it is buried or concealed and produces it seems to be contrary to what their lordships of the privy council have held. i am, therefore, of the opinion that the learned judge was in error in reversing the order of the magistrate and i would, therefore, allow this appeal, set aside the order of acquittal and convict the accused under section 19(f), arms act. as the, offence, was committed as long ago as the 9-5-1930, and the accused was in jail for a period of about five weeks the ends of justice will be sufficiently met if a fine of rs. 150/- and in default six months' rigorous imprisonment is imposed and i would order accordingly.falshaw, j.8. i agree.