The State Vs. Giani Ram 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. - emperor',air 1920 mad 928 (a) he held that the sanction was bad and also went into the merits of the case and held that as there was no evidence to show that any of the passages were offensive, allowed the appeal and set aside the order of conviction, and the state has come up in appeal to this court.kapur, j.1. this is an appeal brought by the state against an order of acquittal made by sessions judge tek chand sethi dated 10-11-1951.2. the respondent giani ram singh printed and published a book called 'nehkalank chandar ude bhag tija' in 1949, and in the complaintwhich was filed by the district magistrate of amritsar on 5-6-1950, it is stated that 1000 copies of this book were published and that there were words and passages which fall within the mischief of ss. 153a and 295a, penal code. in para. g of this petition it is stated: '6 that the petitioner has been ordered by the punjab government vide letter no. 4085-pe-50/111-1356 dated 5-5-1950 (copy attached) to initiate proceedings against the said accused.' in support of the prosecution nine witnesses were produced by the prosecution and the accused was convicted under section 295a, penal code by mr. gurbaksh singh chatrath, magistrate 1st class with section 30 powers, and was given one year's rigorous imprisonment. an appeal was taken to the sessions judge, who allowed additional evidence to be taken on the question of sanction of the government, but relying on full bench judgment of the madras high court in -- 'f. varadarajulu naidu v. emperor', air 1920 mad 928 (a) he held that the sanction was bad and also went into the merits of the case and held that as there was no evidence to show that any of the passages were offensive, allowed the appeal and set aside the order of conviction, and the state has come up in appeal to this court.3. in the complaint no doubt the particulars of the letter which was received by the district, magistrate are given, but only a copy of this letter was placed on the record which is marked ex. p. a. and is in the following terms: 'i am directed to draw your attention to the enclosed translation of objectionable passages from the booklet and to say that it contains words which promote or attempt to promote feelings of enmity of hatred between, and in suit or attempt to insult the religion or religious beliefs of. different classes of indian citizens. i am therefore to request that proceedings may be initiated against* * * *under ss. 153a and 295a of the indian penal code (act 45 of 1860) and the result thereofmay be reported to government in due course.' copy of this letter with enclosures in original were sent to the senior superintendent of police, amritsar, by the district magistrate and the senior superintendent of police sent it on for compliance to the inspector city. this letter does not show that the complaint was to be made by the order of or under the authority of the provincial government or some officer empowered by the provincial government in that behalf. all that it shows in that the chief secretary of the punjab government drew the attention of the district magistrate to the objectionable passages and requested him that proceedings may be taken against the respondent. there is no indication in this letter that the matter was considered by the government or that the government at any stage authorised the institution of the proceedings and what was placed before the court was a copy of this letter.4. section 190 criminal p. c. provides:'no court shall take cognizance of any offencepunishable * * * *153a * * * 'or section 295a * * * *unless upon complaint made by order of orunder authority from the provincial government or some officer empowered by the provincial government in this behalf.'in my opinion, there is no indication in this letter that the government had ordered any complaint to be filed or that there was any authority from the provincial government for the filing of the complaint. nor docs it show that the chief secretary was empowered by the provincial government to take action in this behalf,(5) the assistant advocate-general appearing for the state submitted that it was not necessary that the letter should show on the face of it that the complaint had been filed under the orders of or under authority from the state government, but this letter sufficiently indicates both. he has drawn our attention to a judgment of their lordships of the supreme court in --'dattatraya moreshwar v. the state of bombay', air 1952 sc 181 (b), where it was held:'when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.'and on the authority of this submits that it was not necessary that the orders should have been in the name of the governor as required by article 166 of the constitution of india. but, in my opinion, the rule laid down in 'dattatraya moreshwar's case (b)', has no application to the facts of this case, because the letter, a copy of which was placed before the magistrate, did not purport to give the requisite authority as required by section 196, criminal p. c., and if the authority was not there, then the initiation of prosecution should be regarded as completely null and void as was held in -- 'basdeo agarwalla v. emperor', air 1945 fc 16 at pp. 17 and 18 (c).6. it was then submitted that the additional evidence which was taken in the sessions court supplied the lacuna in regard to the validity of the authority to prosecute. in the first place, the provisions of the code are not meant for giving an opportunity to the prosecution to fill up the gaps against an accused person, and, secondly, in this particular case the evidence does not, in my opinion, seem to be sufficient to give validity to a document which otherwise was not sufficient for proper compliance with section 196, criminal p. c.7. i do not think it necessary to go into the merits of the case and would therefore dismiss this appeal.dulat, j.8. i agree.