The State of Uttar Pradesh Vs. Shankar
& ANR  INSC 56 (15 February 1962)
15/02/1962 KAPUR, J.L.
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1962 AIR 1154 1962 SCR Supl. (3)
Power of Appellate Court-Conviction by
Magistrate--Appeal to Sessions Court-If can direct commitment of accused--Code
of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b).
The respondents were convicted by a
Magistrate under s. 326 Indian Penal Code. They appealed to the Court of the
Sessions judge who set aside the conviction and directed the case to be
committed to the Court of Session. On revision the High Court set aside the
order holding that the Sessions judge had, in an appeal against conviction, no
power to direct commitment to the Court of Session.
Held, that the words of s. 423 (1) (b) of the
Code of Criminal Procedure clearly empowered an appellate court to order
commitment for trial to the court of Session. The power was not limited to
cases exclusively triable by a Court of Session.
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, approved.
CRIMINAL APPELLATE JURISDICTION : Cr. A. No.
Appeal by special leave from the judgment and
order dated September 11, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Revision No. 179 of 1959.
G. C. Mathur and C. P. Lal, for the
The respondent did not appear.
1962. February 15. The Judgment of the Court
was delivered by KAPUR, J.-In this appeal against the judgment and order of the
High Court Of Allahabad, the 214 question of the interpretation of s. 423(1)(b)
of the Criminal Procedure Code arises.
The case of the prosecution was that
respondent Shankar wanted to have illicit intimacy with Mst. Mithana who was
not agreeable to his advances. In order to take his revenge he out off her nose
on January 28, 1959. The allegation against the other respondent Goberdhan was
that he helped Shanker in felling her down and caught her while Shanker out off
her nose. Both the respondents were tried under s. 326 read with s. 34 of the
Indian Penal Code and the Magistrate 1st class found them guilty and sentenced
them to rigorous imprisonment for 18 months each. An appeal was taken against
this order to the Sessions Judge, Sitapur, who on June 12, 1959' set aside the order of conviction and directed the case to be committed to the Court of
On July 15, 1959, the Magistrate committed the respondents to the court of Session to stand their trial under s. 326 read
with s. 34 of the Indian Penal Code. A revision was taken to the High Court
against the order of the Sessions Judge.
The High Court held that the crime was not
only brutal but most cowardly and that the offence was of a grave nature;
that the Magistrate was wrong in assuming
Jurisdiction in such a case and that the cutting of a woman's nose was treated
as a trivial matter by the Magistrate. The learned Judge, however, was of the
opinion that a Session Judge bearing an appeal against conviction had no power
to direct commitment to the court of Session; all that he- could do was to
recommend enhancement of the sentence but it was not worthwhile enhancing the
sentence because the enhancement could only be from 18 months to two years.' He
therefore allowed the revision and set aside the order of the Sessions Judge
and directed that the appeal be reheard on merits.
Against this order the State has come in appeal
to this Court by 215 Special Leave. It may be mentioned that on an application
made to the learned Judge under s. 561A Criminal Procedure Code, the learned
Judge, after referring to several decided cases, was still of the opinion that
his previous order was correct and he declined to give a certificate under Art.
134(1) (c) and the State has come in appeal
by Special Leave. It is not necessary to decide the question whether the
application under s.561 A was entertain able in the circumstances of the case.
Section 423 of the Criminal Procedure Code
deals with the power of the Appellate Court in disposing of appeals against
convictions. The relevant portion of the section is contained in cl.(b) of
sub-s.(1) of that section which is as follows:- S."423 (1) The Appellate
Court shall then send for the record of the case, if such record is riot
already in Court. After perusing such record and hearing the appellant or his
pleader, if he appears and the Public Prosecutor if he appears, and, in case of
an appeal under section 411A, sub-section (2). or section 417 the accused, if
he appears, the Court may, if it considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-
(b) in an appeal from a conviction, (1)
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 such
Appellate Court or committed for trial, or (2) alter the finding, maintaining
the sentence' or, with or without altering the ' finding, reduce the sentence,
or, (3) with or without such reduction and with or without 216 altering the
finding, alter the nature of the sentence., but, subject to the provisions of
section 106, subsection (3), riot so as to enhance the same".
The Code expressly gives the power to the
Appellate Court to dismiss the appeal, to acquit or discharge the accused or
order him to be retried or committed for trial. Therefore the section does
empower the Appellate Court to order commitment for trial to the Court of
Session. The Courts in India have almost unanimously held that to be the
interpretation of the section. In Queen Empress V. Abdul Rahiman (1) where the
circumstances were almost similar as the one in the present case, it was hold
that s. 423(b) which is the corresponding section of the Code of 1882 empowered
an Appellate Court to order an accused person to be committed for trial. That
was also the view of the Allahabad High Court in Queen Empress v. Maula
Baksh.(2) In an earlier case Queen Empress v. Sukha(3), Allahabad High Court
held that under s. 423 of the Code a commitment could be ordered only When an
offence was exclusively triable by a court of Session. That view was overruled
in the later Allahabad case Queen Empress v. Maula Baksh(2) and was not
accepted in the Bombay case above quoted. It is not necessary to refer to cases
decided by other Courts where it has been held that the power to order
commitment under s. 423(1) (b) is not limited to cases exclusively triable by
the court of Session. In Satish Chander Das Bose v. Queen Empress(1) and other
cases of the High Court of Allahabad the earlier view in Sukha's case was not
In our opinion the, words of s. 423 (1) (b)
of the Code are quite clear and the power of the (1) (1891) 1. L. R. 16. Bom.
(3) (1885) 1. L. R. 8. All. 14.
(2)  1. L. R. 15 All. 205.
(4) (1899) I.L.R. 27 Cal. 172.
217 Appellat Court to commit is not
circumscribed to oases exclusively triable by a court of, Session and the High
Court was in error in taking a contrary view-.
We therefore allow this appeal, set aside the
order, of the High Court and restore that of the Sessions Judge.