The State Vs. 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. - the offence punishable under section 61 (1) (a) of the act clearly relates back to the provisions of section 25 and therefore, for anybody to be convicted under section 61(1)(a) for the possession of illicit liquor, there must be two ingredients, namely the possession of illicit liquor and the knowledge that for one of the reasons mentioned in section 25 the liquor is illicit. if this point had been raised in appeal or revision against a conviction, it would be necessary to see whether any prejudice has been caused to the accused by the failure to include these words in the questions and charge, and in cases where the defence taken was a total denial of possession of any incriminating article, i should be inclined to hold that no prejudice had been created against the accused by the omission of these words, and should therefore not be inclined to set aside the conviction simply on this account or if i did so, in a suitable case, i might order a retrial.falshaw, j.1. bam singh respondent is alleged to have been stopped and searched by a police patrol party near mani majra on the 12th of august 1955 and from his possession it is alleged that a bottle of liquor was recovered. the report of the chemical examiner is that the contents of this bottle, which held 26 ounces, were illicit liquor. the respondent was accordingly charged under section 61(1)(a) of the excise act by a magistrate at kharar and convicted of an offence under that section, although his defence, supported by witnesses, was to the effect that no bottle of liquor or any other incriminating article was recovered from him.he was sentenced to pay a fine of rs. 50/- orin default two months' rigorous imprisonment and also ordered to furnish, a bond under section 69a of the excise act for six months in a sum of rs. 500/-. he was, however, acquitted by the learned sessions judge at ambala in appeal and the state has filed the present appeal against his acquittal.2. the order of the learned sessions judge acquitting the respondent is not at all easy to understand, but what its purport seems to amount to is that a charge under section 61(1)(a) of the excise act of this nature is too vague for any accused person to be able to answer. this is a view which i cannot understand, since the provisions of chapter iv of the punjab excise act make it quite clear under what conditions intoxicating liquor, which means any liquor containing alcohol, can be manufactured, sold and possessed, and section 25 provides that no person shall have in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon, and, with due respect to the views of the learned sessions judge, i do not believe that there is a single villager in this region who is not aware of the difference between illicit and licit liquor.3. apart, however, from attempting to support the views expressed by the learned sessions judge, the learned counsel for the respondent has also raised the point that neither the charge nor the interrogation of the accused under section 342, cr p. c. conform with the requirements of law. the offence punishable under section 61 (1) (a) of the act clearly relates back to the provisions of section 25 and therefore, for anybody to be convicted under section 61(1)(a) for the possession of illicit liquor, there must be two ingredients, namely the possession of illicit liquor and the knowledge that for one of the reasons mentioned in section 25 the liquor is illicit.however, neither in the questions put to the accused under section 342. cr. p. c. nor in the charge was there any mention of the words 'knowing the liquor to be illicit.' the accused was in fact simply asked whether he was in possession of the bottle containing illicit liquor, and he was simply charged with being in possession of 26 ounces of illicit liquor.4. i am certainly in agreement with the learned counsel for the respondent that both in the questions put to the accused and in the charge the element of guilty knowledge mentioned in section 25 should also be mentioned. if this point had been raised in appeal or revision against a conviction, it would be necessary to see whether any prejudice has been caused to the accused by the failure to include these words in the questions and charge, and in cases where the defence taken was a total denial of possession of any incriminating article, i should be inclined to hold that no prejudice had been created against the accused by the omission of these words, and should therefore not be inclined to set aside the conviction simply on this account or if i did so, in a suitable case, i might order a retrial. although the same principle might be applied in an appeal filed by the state against an acquittal, i do not think that the present case is of a sufficiently serious nature to justify the ordering of retrial, and i consider that it will serve the purpose of the state in instituting this appeal sufficiently if we merely correct the erroneous views of the learned sessions judge. with these remarks i would dismiss the appeal.gurnam singh, j 5. i agree.