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TMI Blog1972 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... t of section 3 of Probation of Offenders Act released them after an admonition. The complainant filed a revision petition for the enhancement of the sentence. Section 11 of the Probation of Offenders Act, relevant portions whereof have been reproduced below, provides a right of appeal against orders passed under sections 3 and 4 of the said Act: "11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision. (1)... (2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court...... (4) When an order has been made under section 3 or section 4 in respect of an offender, the appellate court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the appellate court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Messrs. Himprastha Financiers (P.) Ltd. (hereinafter called " the company") with its head office at Simla was registered under the Companies Act, 1956 (hereinafter called "the Act") as a private limited company in 1965. Gurcharn Singh, Puran Chand Sud and Mrs. Kailash Devi are the three directors of the company. Under sub-section (1) of section 220 of the Act, three copies of the balance-sheet of the company for the year ending March 31, 1967, had to be filed with the Registrar of Companies, Punjab, Himachal Pradesh and Chandigarh, Jullundur (hereinafter called "the Registrar"), within 30 days of the annual general meeting in which the balance-sheet along with the profit and loss account had to be laid. The annual general meeting was not convened by the company. Under sub-section (1) of section 166 of the Act, time was twice extended at the instance of the company by letters dated September 12, 1967, and November 24, 1967, issued by the Registrar enabling the company to hold the annual general meeting on or before December 31,1967, and to get approved the balance-sheet and the profit and loss account in that meeting. On further request on behalf of the company, time was extended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents being let off with a mere admonition and that the respondents having knowingly and wilfully committed default in filing the copies of the balance-sheet, fully deserved the penalty by way of fine as provided in sub-section (3) of section 220 read with section 162 of the Act. A case reported to the High Court for orders under sub-section (1) of section 438 of the Code of Criminal Procedure becomes a revision under sub-section (1) of section 439 of the Code. When this revision petition came up for hearing before Suri J., a preliminary objection was raised on behalf of the respondents that remedy by way of appeal under section 11 of the Probation of Offenders Act having not been availed of by the Registrar, revision petition is not competent by virtue of sub-section (5) of section 439 of the Code. In support of that contention, the counsel for the respondents relied on a Single Bench judgment given by Sandhawalia J. in Raghbir Singh's case ( supra ) [1971] 73 P.L R. 771 (Punj.) , holding that if an appeal lies under section 11 of the Probation of Offenders Act and that remedy has not been exhausted, revision petition is not competent. As against this Single Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant in such an appeal. The scrutiny of sub-section (5) of section 439 of the Code admits of no doubt that a party who has no right to maintain an appeal under the Code but is entitled to prefer an appeal apart from and outside the provisions of the Code cannot be debarred from having his grievance redressed under sub-section (1) of section 439 of the Code. A fortiori, where a party invoking the revisional jurisdiction of the High Court is different from the one who has locus standi as an appellant under the Code, his revision would be entertainable. In these two types of cases, sub-section (5) of section 439 will not be a bar. In other words, that provision only restricts and curtails the power of interference by the High Court under sub-section (1) of section 439 of the Code. The provision does not render non est the revisional jurisdiction of the High Court in cases in which appeal lies. Appeals which are competent outside the provisions of the Code are not at all touched by sub-section (5) of section 439 and do not fall within its clutches. If an appeal is competent under a special law, the bar created by sub-section (5) of section 439 cannot adversely affect the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Probation of Offenders Act under which an appeal by the Registrar is maintainable. It is admittedly the case of the parties that no appeal has been filed under that provision by the Registrar. It will be relevant to mention here that there is no period of limitation prescribed for an appeal from the date an order is made either under section 3 or under section 4 of the Probation of Offenders Act. Appeal would lie without any technical restriction as to any period of limitation apart from an inordinate delay and laches on the part of an aggrieved appellant being taken into consideration for entertainability of the appeal. The next point that arises on the above construction of the provisions of sub-section (5) of section 439 of the Code vis-a-vis sub-section (2) of section 11 of the Probation of Offenders Act is as to whether revisional power exercisable as a remedy in general can be exercised under sub-section (1) of section 439 of the Code, when specific provision of appeal under sub-section (2) of section 11 of the special law of the Probation of Offenders Act has not been availed of. While arguing about this point, Shri Nanda, appearing on behalf of the respondents, has laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other enactment and such an order may be made by the High Court when a case comes up before it either on appeal or in revision. Thus, when a case comes up in the High Court on the revisional side under sub-section (1) of section 439 of the Code, the High Court will be competent to pass an order in that revision just as a trial court will be competent to make an order either under section 3 or under section 4 of the Probation of Offenders Act. Even if a remedy by way of appeal has not been availed of by an aggrieved party, the High Court may in revision exercise powers conferred on a court of appeal under section 423 of the Code either in cases which have been reported under sub-section (1) of section 438 of the Code or in cases which otherwise come to the knowledge of the High Court. When a case is reported under sub-section (1) of section 438 of the Code to the High Court or when the High Court of its own comes to know of a case without the aggrieved party having filed any appeal which could be maintained by it and finds that grave injustice has been done to the party who could file a revision petition, the High Court will not connive at the illegality responsible for such an inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is Maya Das 's case ( supra ) . In that case, an order was passed under section 81 of the Punjab Municipal Act by a Magistrate directing for issue of warrants of attachment of property of a defaulter lessee. An appeal lay from the order of the Magistrate to the Deputy Commissioner under section 84 of the Municipal Act. No appeal was filed. Resort was had to the provision of sub-section (1) of section 439 of the Code of Criminal Procedure by filing a revision petition in the High Court. On objection being taken that sub-section (5) of section 439 of the Code was a bar against the maintainability of the revision petition, it was observed as under: "The learned Government pleader raised a preliminary point to the effect that no revision lay in view of the provisions of section 439(5), Criminal Procedure Code, because under section 84 of the Punjab Municipal Act, 3 of 1911, an appeal against the assessment or levy of any tax under the Act lay to the Deputy Commissioner or to such other officer as might be empowered by the local Government in that behalf. This is obviously an untenable position. In the first instance, it has been only enacted in section 439(5), Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under sub-section (1) of section 439 of the Code as sub-section (5) of section 439 would operate as a bar against the High Court's interference in revision. That case is obviously distinguishable and no advantage can be derived there from to take away the jurisdiction of the High Court in the present case when appeal to be filed in the latter is not one under the Code but under sub-section (2) of section 11 of the Probation of Offenders Act. In that case, the appeal against the judgment of acquittal recorded by the trial court at the instance of the State was maintainable in the High Court under section 417 of the Code and not under any provision of appeal under local or special law aliunde to the Code. The case of an accused person who had been convicted under section 506, Indian Penal Code, and from whose conviction an appeal filed in the court of session had been transferred by the High Court to its own file came up for consideration before the Supreme Court in Romesh Chandra v. State A.I.R. 1960 S.C. 154, 160. The appeal was dismissed by the High Court but the sentence awarded by the trial Magistrate under section 506, Indian Penal Code, was enhanced. The question th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perverse or contrary to the evidence on the record and amounts to travesty of justice. This judgment shows that the High Court can suo motu interfere, if a judgment of acquittal is perverse or results in miscarriage of justice, even if the State aggrieved of the judgment of acquittal has not moved the High Court by appeal under section 417 of the Code. On behalf of the respondents reliance has been placed on Arakhita Behera v. Bhikari Behera I.L.R. [1968] Cut. 223. In that case, an order of release with admonition was passed under section 3 of the Probation of Offenders Act by the trial Magistrate for offences under sections 147 and 427, Indian Penal Code. No appeal was preferred under sub-section (2) of section 11 of that Act. Instead, the High Court was moved under section 439 of the Code of Criminal Procedure for the order passed under section 3 of the said Act being set aside. On a preliminary objection raised on behalf of the respondents, it was held that the petitioner having not availed himself of the remedy of appeal from the order made under section 3 of the Probation of Offenders Act, revision petition, by virtue of sub-section (5) of section 439 of the Code, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had a statutory right and remedy by way of appeal had not exercised the same. On general principles and also on the specific provisions of section 439(5) a party, who has a right of appeal cannot be allowed to have resort to revision proceedings. I am hence disinclined to interfere at the instance of the State in the present case and would consequently decline the reference." Reliance for that decision, inter alia , was placed on the above referred to Cuttack judgment in Arakhita Behera's case ( supra ) about the correctness of which I am in disagreement. The scope of sub-section (5) of section 439 of the Code in relation to the right of appeal under subsection (2) of section 11 of the Probation of Offenders Act has not been considered. Sub-section (5) of section 439 of the Code bars only those revisions of cases in which appeals are maintainable under the Code and that too subject to the limitations prescribed therein as already indicated by me while construing that sub-section. Sub-section (5) does not at all bar the entertainability of a revision under sub-section (1) of section 439 of the Code when an appeal is maintainable under a special or local Act and the aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de as to whether a revision petition forwarded by the Additional Sessions Judge under sub-section (1) of section 438 and to be considered for disposal under sub-section (1) of section 439 of the Code was barred when an appeal lay not under the Code but under the provision of sub-section (2) of section 11 of the Probation of Offenders Act falling outside the Code. In that brief judgment, there is neither reference to the provision of sub-section (5) of section 439 of the Code nor any discussion about the scope of that provision and the effect of that provision upon sub-section (1) of section 439, when the appeal under sub-section (2) of section 11 of the Probation of Offenders Act is not an appeal maintainable under the Code but outside the Code. The ratio of that case is counter to the view I have taken about the scope of the provision of sub-section (5) of section 439 of the Code in relation to the remedy of revision petition under sub-section (1) of section 439 of the Code when an appeal lies under sub-section (2) of section 11 of the Probation of Offenders Act and the same has not been filed. I respectfully dissent from the ratio decidendi of that case as it does not lay down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision petition was not entertainable when remedy by way of appeal under sub-section (2) of section 11 of the Probation of Offenders Act had not been availed of while the other taking the view that such a revision petition was entertainable, which necessitated the reference. In the light of the view I have taken about the scope and effect of sub-section (5) of section 439 of the Code, a. revision petition is entertainable under sub-section (1) of section 439 of the Code, even if appeal under sub-section (2) of section 11 of the Probation of Offenders Act has not been filed. The view taken by the learned single judge in Raghbir Singh's case ( supra ) does not appear to be correct. It is held that the High Court can interfere under sub-section (1) of section 439 of the Code with the order of a trial Magistrate passed under section 3 or section 4 of the Probation of Offenders Act, even if remedy by way of appeal under sub-section (2) of section 11 of the Probation of Offenders Act has not been availed of. The preliminary objection raised on behalf of the respondents is overruled. Now, I come to the merits of the case. The only question which survives for consideration is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and later on came to the custody of the court. In the absence of specific relevant particulars, it is very difficult to come to the conclusion whether the respondents were not in possession of the books after the murder had been committed. In any case, they could inspect the account books while they were in the possession of the police or in custody of the court and there could be no difficulty in filing the balance-sheet, if for the purpose of filing of balance-sheet reference of those books at that time was necessary. It has been further stated in the written statement that inspection was allowed by the High Court after May, 1968 and the books were inspected and the balance-sheet was prepared and filed. Again, it is vaguely stated that books were inspected after May, 1968, No particular dates are mentioned as to to whom the application was made and the books were inspected. Similarly, no date on which the balance-sheet was prepared nor the date on which it was audited has been chosen to be mentioned. Sub-section (1) of section 220 of the Act provides that after the balance-sheet and the profit and loss account have been laid before a company at the annual general meeting, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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