Uttarakhand High Court
Ms. Swati Maindola vs State Of Uttarakhand on 17 July, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.85 of 2011
Swati Maindola .....Revisionist
Versus
State of Uttarakhand ....Respondent
Mr. Sudhir Kumar, Advocate for the revisionist
Mr. Pratiroop Pandey, A.G.A. for the State
Judgment reserved on: 23.06.2017
Judgment delivered on:17.07.2017
Hon'ble Lok Pal Singh, J.
This criminal revision is directed against the judgment and order dated 18.04.2011 passed by Additional Sessions Judge/F.T.C., Tehri Garhwal in Criminal Appeal No.40 of 2010, whereby said court has allowed the appeal filed by the State and has affirmed the conviction recorded by the trial court and has enhanced sentence awarded by the trial court. The revisionist has been sentenced to three years' rigorous imprisonment with a fine of ` 50,000/-. In default of payment of fine, the appellant was directed to undergo six months' additional simple imprisonment.
2. In brief, facts of the case are that complainant Ananda Hotel lodged a First Information Report against the appellant alleging that the appellant was serving as Cashier in Ananda Hotel, Narendnagar and while serving as such, the appellant had to deposit an amount of Rs.16,21,868/- and further 11,400/- U.S. Dollar during the period 1.10.2007 to 15.12.2007 in the account of Ananda Hotel, but instead of depositing the same in Hotel's account, she took advantage and deposited it in her own account.
23. The matter was investigated and after completing the investigation, the I.O. submitted the charge sheet against the revisionist under Section 406 and 420 of The Indian Penal Code, 1860 (for short, IPC). Learned Chief Judicial Magistrate, Tehri on receipt of the charge sheet, took cognizance and summoned the appellant. After giving necessary copies to the accused, learned Civil Judge (J.D.)/Ist Judicial Magistrate, Narendra Nagar Tehri Garhwal, vide order dated 07.03.2009, framed charge of offences punishable under section 406 and 420 IPC, against the revisionist, who pleaded not guilty and claimed to be tried. On this, prosecution got examined as many as five prosecution witnesses, namely, P.W.1 Madan Salgavkar, P.W.2 Milan Sharma, P.W.3 Gabbar Singh, P.W.4 S.I. R.P. Sati and P.W.5 Ramesh Ranjan. The oral and documentary evidence was put to the accused, which she denied and submitted that she has been falsely implicated in the case. After hearing the parties and upon perusal of record, the trial court (Civil Judge J.D./Ist Judicial Magistrate) vide judgment and order dated 16.09.2010, convicted the revisionist under section 406 I.P.C and sentenced to pay fine of Rs.5,000/- or in default to undergo six months' imprisonment. Against the sentence awarded by the trial court, on the ground of its inadequacy, the Public Prosecutor preferred an appeal under Section 377 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.) before the Sessions Judge, Tehri Garhwal, which was registered as Criminal Appeal No. 40 of 2010. Learned Additional Sessions Judge, to whom appeal was transferred, vide impugned judgment and order dated 18.04.2011, maintained the conviction 3 recorded by the trial court but enhanced the sentence of the revisionist, as stated above. Hence, this revision has been filed by the convict-revisionist.
4. Learned counsel for the revisionist submitted that the lower appellate court has erred in law in entertaining the appeal no.40 of 2010 filed on the behest of District Government Counsel (Criminal), which was not maintainable, as there was no sanction by the State Government to file the appeal u/s 377 of Cr.P.C. against the sentence on the ground of its inadequacy; rather the District Magistrate, Tehri Garhwal had granted permission permitted the D.G.C. (Criminal) to prefer the appeal. According to learned counsel, in absence of such permission, the criminal appeal no.40 of 2010 was not maintainable and thus the impugned judgment and order passed by the appellate court is without jurisdiction.
5. Learned counsel for the revisionist further submitted that the lower appellate court has erred in law by enhancing the sentence awarded to the revisionist by the trial court. He contended that a very harsh view has been taken by the appellate court by awarding the maximum sentence provided under Section 406 IPC. He further contended that in the instant case, no reasonable opportunity of showing cause against the proposed enhancement of sentence was afforded to the revisionist, which is mandatory under Section 377 of Cr.P.C.
6. Per contra, learned Deputy Advocate General supported the judgment passed by the first appellate 4 court and submitted that appropriate sentence has been awarded to the convict/revisionist under Section 406 of IPC. He further contended that the appellate court's judgment is based on cogent reasons and on a proper appreciation of the evidence on record.
7. I have heard learned counsel for the parties and have gone through the record.
8. For ready reference, Section 377 of Cr.P.C. is reproduced below:
"377. Appeal by the State Government against sentence-
(1) Save as otherwise provided in sub-
section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present [an appeal to the High Court against the sentence on the ground of its inadequacy-
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court , if the sentence is passed by any other Court.] (2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may also direct] the Public Prosecutor to present [an appeal to the High Court against the sentence on the ground of its inadequacy.
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.] 5 (3) When an appeal has been filed against the sentence on the ground of its inadequacy, [the Court of Session or, as the case may be, the High Court] shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
9. Section 377 of Cr.P.C. postulates the conditions that State Government may direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. From the perusal of record, it reveals that State Government has not directed the Public Prosecutor to prefer such appeal, in fact, direction was given to the D.G.C. (Crl.) by the District Magistrate, Tehril Garhwal to file an appeal against the judgment and order dated 16.09.2010 on the ground of inadequacy of sentence on the letter written by Senior Prosecuting Officer, Tehri Garhwal to the District Magistrate, Tehri Garhwal dated 14.10.2010.
10. It is well settled salutary principle that when a statute prescribes to do a particular thing in a particular manner, then it has to be done in that manner alone and no other manner. This principle has been conclusively settled in a number of judgments.
11. In State of U.P. vs. Singhara Singh and others, AIR 1964 Supreme Court 358, the Hon'ble Apex Court has held as follows:
"8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has 6 conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. This action, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions given to him."
12. In Chandra Kishore Jha vs. Mahavir Prasad and others, (1999) 8 SCC 266, the Hon'ble Apex Court has held as follows:
"17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage : Nazir Ahrnad v. King Emperor, 63 Indian Appeals 372=AIR 1936 PC 253; Rao Shiv Bahadw Singh & Anr. V. State of Vindhya Pndwh, 1954 SCR 1098 = AIR 1954 SC
322. State of Utter Pradesh v. Singhan Singh & Ors., AIR 1964 SC 358 = (1964) 1 SCWR 57] An election petition under the Rules could only have been presented in the open Court upto 16.5.1995 till 4.15 P.M. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save 7 the period of limrtation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16.5.1995 after 3.15 P.M., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 P.M. Law does not expect a party to do the impossible - impossiblium nulla obligatioest as in the instant case, the election petition could not be filed on 16.5.1995 during the Court hours, as far all intent and purposes, the Court was closed on 16.5.1995 after 3.15 P.M."
13. The Hon'ble Supreme Court in the case of Dhanjaya Reddy vs. State of Karnataka, (2001) 4 S.C.C. 9 took the same view that where law requires a thing to be done in a certain manner, it has to be done in that manner or not at all. The Court further observed that the power must be exercised in the manner provided by the statute.
14. In my considered view, the appeal filed by the D.G.C. (Crl.) on the direction of District Magistrate was not maintainable. Furthermore, the lower appellate court has also not followed the procedure prescribed under sub-section (3) of Section 377 Cr.P.C. and no reasonable opportunity of showing cause on the proposed action for enhancement of sentence was given to the revisionist. As such, the impugned judgment and order passed by the appellate court is wholly illegal and without jurisdiction and is liable to be set aside.
15. In view of the aforesaid discussion, the criminal revision is allowed. Impugned judgment and 8 order dated 18.04.2011 passed by Additional Sessions Judge/F.T.C., Tehri Garhwal in Criminal Appeal No.40 of 2010, is hereby set aside. The judgment and order passed by the trial court dated 16.09.2010 is maintained.
16. Let the lower court record be sent back.
(Lok Pal Singh, J.) 17.07.2017 Rajni