The State Of Uttar Pradesh vs Shankar And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Cr. A. No. 206/1960

Decision Date: 15 February, 1962

Coram: J.L. Kapur, K.C. Das Gupta, Raghubar Dayal

In the case titled The State of Uttar Pradesh versus Shankar and Another, the judgment was delivered on 15 February 1962 by a Bench of the Supreme Court of India consisting of Justice J. L. Kapur, Justice K. C. Das Gupta and Justice Raghubar Dayal. The matter was reported in 1962 AIR 1154 and in the Supplement to the Supreme Court Reports, volume 3, page 213. The petitioners were the State of Uttar Pradesh and the respondents were Shankar and another individual. The legal question concerned the power of an appellate court under section 423(1)(b) of the Code of Criminal Procedure, 1898, to order the commitment of an accused to the Court of Session for trial after a conviction by a Magistrate. The headnote of the report recorded that the respondents had been convicted by a Magistrate under section 326 of the Indian Penal Code, that the conviction was appealed to a Sessions Judge who set aside the conviction and ordered commitment to the Court of Session, and that on revision the High Court set aside that order on the ground that a Sessions Judge hearing an appeal against conviction possessed no power to direct such commitment. The Supreme Court held that the language of section 423(1)(b) expressly authorises an appellate court to direct commitment for trial to the Court of Session and that this authority is not confined to cases that are exclusively triable by a Sessions Court. The Court cited earlier authorities such as Queen Empress v. Abdul Rahiman (1891) I.L.R. 16 Bom. 580, Queen Empress v. Maula Baksh (1893) 1 L.R. 15 All. 205 and Satish Ohander Das Bose v. Queen Empress (1899) 1 L.R. 27 Cal. 172, which were approved in support of the proposition.

The factual background presented was that the prosecution alleged that the respondent Shankar attempted to force illicit intimacy upon Mst. Mithana, who refused his advances. In retaliation, Shankar is alleged to have cut off her nose on 28 January 1959. The second respondent, Goberdhan, was accused of assisting Shankar in the assault and of restraining the victim while the nose‑cutting was carried out. Both respondents were tried under section 326 together with section 34 of the Indian Penal Code, and a first‑class Magistrate found them guilty, sentencing each to rigorous imprisonment for eighteen months. An appeal against this conviction was lodged before the Sessions Judge at Sitapur. On 12 June 1959 the Sessions Judge set aside the conviction and directed that the matter be committed to the Court of Session for trial. Subsequently, on 15 July 1959 the Magistrate effected the commitment of the respondents to the Court of Session to be tried under the same provisions of the Indian Penal Code. The State of Uttar Pradesh appealed this order to the Allahabad High Court, Lucknow Bench, by special leave, challenging the Sessions Judge’s authority to direct commitment. The High Court, after hearing the revision, held that the offence was both brutal and cowardly, that the Magistrate had erred in assuming jurisdiction over such a serious matter, and that a Sessions Judge hearing an appeal against conviction could not order commitment to the Court of Session; the High Court concluded that the only power available to the Sessions Judge was to recommend an enhancement of the sentence, which it deemed unnecessary. Consequently, the High Court set aside the Sessions Judge’s order and directed that the appeal be reheard on its merits. The State appealed this decision, bringing the matter before this Court.

The Court noted that the respondents were committed to the Court of Session to stand trial under section 326 read with section 34 of the Indian Penal Code. A revision petition was subsequently filed in the High Court challenging the order of the Sessions Judge. The High Court observed that the offence was not only brutal but also extremely cowardly and that it constituted a grave crime. It further held that the Magistrate had erred in assuming jurisdiction over such a matter and that the Magistrate’s treatment of the cutting of a woman’s nose as a trivial issue was inappropriate. Nonetheless, the learned Judge of the High Court expressed the view that a Sessions Judge, when hearing an appeal against conviction, possessed no authority to direct commitment of the accused to the Court of Session; the only power available was to recommend an enhancement of the sentence, which the Judge deemed unnecessary because the possible enhancement would raise the term of imprisonment from eighteen months to a maximum of two years. Accordingly, the High Court allowed the revision, set aside the order of the Sessions Judge, and directed that the appeal be reheard on its merits. The State, dissatisfied with that order, filed an appeal before this Court by way of Special Leave. The Court also recorded that, in response to an application made to the learned Judge under section 561A of the Criminal Procedure Code, the Judge, after referring to several decided cases, maintained that his earlier order was correct, declined to issue a certificate under Article 134(1)(c), and consequently the State pursued the Special Leave route. The Court regarded it unnecessary to decide whether the application under section 561A was maintainable under the facts of the case. The Court then turned to the provisions of section 423 of the Criminal Procedure Code, which delineates the powers of an appellate court in disposing of appeals against convictions. The relevant portion of that section is found in clause (b) of sub‑section (1), which provides that the appellate court, after obtaining the case record and hearing the appellant or his pleader, the public prosecutor, and, where applicable, the accused, may if it finds no sufficient ground for interference dismiss the appeal, or may, in an appeal from a conviction, (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to the appellate court or commit him for trial; (ii) alter the finding while maintaining the sentence, or, with or without altering the finding, reduce the sentence; or (iii) with or without such reduction and with or without altering the finding, alter the nature of the sentence, subject to the provisions of section 106, subsection (3), insofar as enhancement is concerned. The Code expressly authorises the appellate court to dismiss an appeal.

The Court observed that the provision allows the appellate court either to acquit or discharge the accused, or to order that the accused be retried or committed for trial. Accordingly, the provision does empower the appellate court to direct that a case be committed for trial before the Court of Session. Indian courts have almost uniformly interpreted the provision in this manner. In the case of Queen Empress v. Abdul Rahiman (1), where the facts were substantially similar to those before this Court, it was held that section 423(b) of the Code of 1882, which is the corresponding provision, authorises an appellate court to order a person accused of an offence to be committed for trial. The Allahabad High Court expressed the same view in Queen Empress v. Maula Baksh (2). By contrast, an earlier decision of the Allahabad High Court in Queen Empress v. Sukha (3) held that under section 423 a commitment could be ordered only when the offence was exclusively triable by a Court of Session. That earlier view was later overruled by the Allahabad High Court in Queen Empress v. Maula Baksh (2) and was not accepted in the Bombay decision cited above. The Court noted that it is unnecessary to refer to further judgments of other courts which have held that the power to order commitment under section 423(1)(b) is not limited to offences that are exclusively triable by the Court of Session. In Satish Chander Das Bose v. Queen Empress (1) and in other judgments of the Allahabad High Court, the earlier view expressed in Sukha’s case was rejected. In the Court’s opinion, the language of section 423(1)(b) of the Code is clear and the power of the appellate court to commit an accused is not confined to offences that are exclusively triable by a Court of Session. The Court therefore concluded that the High Court had erred in taking a contrary view. Consequently, the appeal was allowed, the order of the High Court was set aside, and the order of the Sessions Judge was restored. The appeal was thereby allowed.