Andhra HC (Pre-Telangana)
The State vs Ghanshamdas on 18 August, 1955
JUDGMENT Jaganmohan Reddy, J.
1. This revision has been referred by a Single Bench Under Section 5, Hyderabad High Court Act, as involving an important question, namely, whether the Court in exercise of its inherent powers Under Section 56IA of the Indian Criminal Procedure Code, can admonish an accused after he has been convicted of an offence whether under the Indian Penal Code which has not been enumerated Under Section 562 . (1A) or under any Special Act,
2. The facts in so far as they are relevant for this revision are that one Gopinath was charged and convicted by the Munsiff Magistrate, Tan-dur for contravening Rule 29 of the Payment of Wages Rules of 1352F- made under the Payment of Wages Act and was released after administering an admonition. Against this judgment of the Magistrate, the accused filed a revision before the Sessions Judge of Gulbarga. The learned Sessions Judge has made this reference for quashing the order of admonition on .the ground that Section 562(1A) does not authorise the learned Magistrate to pass such an order when the accused is charged of an offence under a Special Act. p It may here be mentioned that the Magistrate had not specified the section or provision of law under which he purported to act when after conviction he released the accused by merely administering an admonition. The learned Government Advocate contends that obviously the Magistrate must have acted Under Section 562(1A) which clearly precludes the administering of an admonition in cases other than those enumerated in the said sub-section. That sub-section was added by an amendment of the Criminal Procedure Code in 1923 in order to give effect to the recommendations of the Indian Jails Committee, The sub-section is as under:
In any case in which a person is convicted of theft, in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years' imprisonment and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
The language of the sub-section is clear in excluding its application to offences which are outside those enumerated in the Section itself, whether they are under the Penal Code or under any Special Act. Prior to the addition of the aforesaid sub-section by Amendment Act of 1923, there was no power under the Criminal Procedure Code to administer an admonition in any case, whether it be of a trivial nature or of a serious nature-
The question of extending the scope of that Section to other offences is a matter for the legislature. But if the Magistrate wishes to pass a nominal sentence in offences other than those enumerated in Section 562(1A) there are other means of doing so than the one mentioned in that Section, namely, to release the accused after due admoni- tion. He can give a light sentence or if the case falls under sub-section (1) of Section 562, release him on probation of good conduct or award a tine where that alone can be given. There are several decisions of other High Courts in which it has been clearly held that Section 562(1 A) does not apply to offences under the Special Acts, such as Motor Vehicles Act, Stamp Act, City Municipal Act, Police Act etc, In all cases which are not covered by Section 562(1A), a Magistrate has no power to warn and discharge an accused analogous to admonition, but must pass a sentence according to law, unless of course it can be brought Under Section 562(1) when the offender is released on probation of good behaviour and undertakes to appear and receive a sentence if he breaks the condition of his release. Section 562 as a whole was introduced in the Code of 1898 as a recognition of the well-established principle of Common Law in England, namely, that a convicted person instead of being sentenced and sent to prison, may be released on probation of good conduct and the judgment and the sentence of the Court is deferred until a future date.
The accused is required to enter into his recognizance with or without sureties and to come up for judgment when called upon and meanwhile to be of good behaviour. The Supreme Courts established at Calcutta, Madras and Bombay which were applying the Common Law of England confirmed the exercise of these powers. But the Courts which were not administering the Common Law could not exercise such powers until 1898 when the Section as a whole was added.
3. Admonition by a Judge is a reprimand, a censure or a reproof warning the accused that he is being let off but in case of repetition he will be punished severely in accordance with law. In the case where an admonition is administered, there is no question of awarding any further sentence whether then or at future date. For this reason it is obvious that a Judge or a Magistrate can only administer to an offender an admonition on conviction of an offence if he is vested with that power, otherwise he must award the prescribed punishment, namely, either a sentence of imprisonment or a fine or both. It is for this reason that a new sub-section was added to Section 562 as already pointed out.
4. The power to release an accused on conviction after an admonition, in our view, involves a question of jurisdiction. There is nothing inherent in a Court to prescribe or devise a different mode or modes of punishment other than those prescribed by law, even though they may be considered to be beneficial or serve the interests of justice. Section 561A to which a reference has been made, is in the following terms ;
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
The reason for enacting this Section by the Amendment Act of 1923 is that no legislative enactment dealing with procedure can provide for all cases that may possibly arise. For that reason the legislature sought to vest the inherent powers which are necessary for their existence and the proper discharge of duties imposed upon them, This Section, therefore, does not confer any new powers upon the High Court but merely recognises the inherent powers of the High Court previously possessed by it and embraces three classes of orders which may be necessary, namely, (1) to give effect to the provisions of the Code, (2) to prevent abuse of the process of any Court, (3) to secure the ends of justice. In none of these inherent powers is it implicit upon the Court whether in the interests of justice or otherwise to act in any manner other than that which has been prescribed by law.
5. As observed by their Lordships of the Privy Council in 'Emperor v. Nazir Ahmad' AIR 1945 PC 18 (A), It is not correct to say that Section 561A has given increased powers to the Court which it did not possess before that section was enacted. The Section gives no new powers, it only provides that those which the Court already inherently possessed shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Criminal Procedure Code.
or again as later observed in the case of 'Kumar Singh v. Emperor AIR 1946 PC 169 (B), no Court can claim inherent jurisdiction' to exercise powers expressly taken away by legislation, Clause 26 of the Special Criminal Courts Ordinance, 1942, expressly takes away all powers of revision by the High Court and consequently the High Court does not possess inherent jurisdiction to interfere with the order of a Special Magistrate acting under that Ordinance.
There is in our view ample authority for the proposition that where the legislature has provided for a particular mode of action or has vested an authority with power to act in a particular manner and has prescribed the conditions limiting the scope of such action, the Court can have no inherent power to act outside those powers and limitations. If every Court possessed an inherent power to substitute any form of punishment, then there would have been no necessity to have embodied the aforesaid provision in {he Criminal Procedure Code, empowering the Courts in certain cases specified therein to release the accused after due admonition.
6. In our considered view, the question of releasing an accused on an admonition except in cases specific in Section 562(1A) is not implicit in the inherent powers conferred or recognized by Section 561A. In this view of the matter, we accept the reference and set aside judgment and sentence of the lower Court and remand the case for awarding a sentence according to law.