Basant Singh Vs. State - 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. - it is also not unusual that the owners of the fields do not like this.soni, j.1. basant singh has been found guilty under section 325, penal code by the sessions judge of gurdaspur and has been sentenced to four years' rigorous imprisonment. he has appealed.2. the case arose in this way. the deceased charan das mahasha was walking along a sugarcane field. he plucked a sugarcane and began to chew it. thereupon the present accused and his brother bishna by name came upon him and asked him why he had done so. there was an altercation. basant singh gave him a blow or blows. bishna is supposed not to have done anything serious. the result of this blow or blows was that charan das mahasha died soon after receiving the injuries. on post mortem examination it was found that the deceased had a faint contusion 2' in circle on the left side at the lower ribs in the axillary line and two nail scratches each 1/8' long below the thyroid eminence. sixth left rib was broken at its front end. both the pleaurae were adherent. peritonial cavity was full of dark coloured blood containing clots. the spleen was ruptured, the rupture measuring 2 1/2'. it was a big spleen weighing 1 lb. 10 ozs. death, in the opinion of the doctor, was due to internal haemorrhage as a result of the rupture of the spleen which in its turn had resulted from a blow on the side of the chest. (after discussion of the medical evidence the judgment proceeds).3. the result of the doctor's evidence is that the rupture of the spleen was not due to a fall but was due to the injury or injuries inflicted on the deceased. the accused was sent up to take his trial under section 302, but the learned sessions judge convicted him under section 325, penal code, and gave him four years' rigorous imprisonment. it is quite clear to me that no offence under section 302 was made out. it was a small matter which probably is not of unusual occurrence that people going along a sugarcane field sometime pluck a sugarcane and begin to.chew it. it is also not unusual that the owners of the fields do not like this. it gives rise to rows, but in this particular case the accused did more than have a simple altercation but actually inflicted two blows one of which caused the rupture of the spleen. the conviction in my opinion is justified under section 325, penal code as the abnormal enlargement of the spleen of the deceased was not known to the assailant. (4) so far as the sentence is concerned, i think the sentence is rather severe. at the lime when the blow was inflicted the accused did not know that the man was suffering from an enlarged spleen, and two blows were given one of which unfortunately caused the fracture of a rib. in my opinion a sentence of two years' rigorous imprisonment would be sufficient in this case. i reduce the sentence accordingly.