Ishrat Hussain vs Copy To Be Served On Public ...
2013 Latest Caselaw 169 Bom

                                       1                            wp 68.2010.odt


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                   
              CRIMINAL WRIT PETITION NO.68 OF 2010




                                           
     Ishrat Hussain s/o Mohammad Hussain,
     age 42 years, Occ. Business,




                                          
     R/o Rashidpura, Shatabdi Road,
     Aurangabad.                                        Petitioner.
                                                     (Orig accused.)




                                 
     VERSUS
                  
     The State of Maharashtra,
     through City Chowk Police Station,
     Aurangabad
                 
     (Copy to be served on Public Prosecutor
     High Court, Aurangabad.)                          Respondent.
                                                   (Orig. complainant)
      


                                  ............
     Mr. A.K.Bhosale h/f Mr. K.G.Bhosale Advocate for the petitioner.
   



     Mr. S.R.Palnitkar APP for respondent state
                                    .............





                                   CORAM : ABHAY M. THIPSAY, J.

Dated: November 20, 2013 .............

ORAL JUDGMENT :-

1. Rule. By consent, Rule made returnable forthwith.

By consent, heard finally.

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2. The applicant was prosecuted vide RCC No.

649/2008 on the allegation that he had committed an offence

punishable under section 174-A of the Indian Penal Code. It was

alleged that the petitioner was an accused in RCC No.913/1999

which was in respect of an offence punishable under section 324

of the Indian Penal Code. That, the petitioner did not remain

present before the trial court in that case inspite of the fact that

a proclamation requiring him to remain present was issued by

the Trial Court as contemplated under section 82 of the Code of

Criminal Procedure. The learned Magistrate, after holding a

trial, convicted the petitioner of an offence punishable under

section 174-A of the Indian Penal Code, and sentenced him to

suffer R.I for one year and to pay a fine of Rs.5,000/-, but

further directed that instead of sending the petitioner to prison,

he be released on his executing a bond of Good Behaviour as

contemplated under section 4 of the Probation of Offenders Act,

1958. The petitioner challenged the order of his conviction by

filing an appeal before the Court of Sessions which was allowed

by setting aside the order of conviction, but directing, in effect, a

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re-trial of the petitioner. Being aggrieved thereby, the petitioner

has invoked the Constitutional jurisdiction of this Court by filing

present petition.

3. A number of contentions have been raised by

Mr.A.K.Bhosale, the learned counsel for the petitioner about the

legality, propriety and correctness of the findings arrived at by

the Magistrate, as well as by the Court of Sessions. A number of

contentions are also raised about the propriety of the procedure

adopted by the learned Magistrate as well as the Court of

Sessions. I find great substance in the contentions raised by the

learned counsel for the petitioner in that regard, but in the view

that I am taking, it is not necessary to discuss those

contentions. It is because the petition is bound to succeed on a

more fundamental and clear point.

4. Section 174-A has been inserted in the Indian Penal

Code by Act 25 of 2005. It was brought in force with effect from

23.6.2006.

5. The allegation against the petitioner was that he had

committed an offence punishable under section 174-A of the

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Indian Penal Code on or about 13.6.2005. In other words, the

offence allegedly committed by the petitioner is said to have been

taken place before Section 174-A of the Indian Penal Code was

brought in force.

6. Prosecution of the petitioner with respect to an

offence which was not in force at the time when he is alleged to

have committed the act/acts constituting the same, is in plain

violation of the provisions of Article 20 (1) of the Constitution of

India. Article 20 (1) makes it clear that no person shall be

convicted of an offence except for the violation of the law in force

at the time of the commission of the act charged as an offence.

Since the act of failing to appear in obedience to the proclamation

is alleged to have taken place on or about 13.6.2005, and since

this act has been made punishable with effect from 23.6.2006, it

was plain that the entire prosecution of the petitioner with

respect to the alleged offence was patently illegal and in violation

of the Constitutional guarantee afforded by Article 20.

7. In fact, this aspect was pointed out to the Court of

Sessions also but, still it directed a retrial to be held. The view

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of the Court of Sessions was that, certain documents on which

the prosecution had based its case, had not been proved

properly and in accordance with law, during the trial. Thus,

though according to the Court of Sessions, the case against the

petitioner had not been satisfactorily proved, instead of passing

an order of acquittal on this count, it directed a retrial to be

held, which was not proper. There were no circumstances

justifying a retrial to be held. Nothing prevented the prosecution

from proving the documents in question properly, and in

accordance with Law; and if it had failed to do so, there was no

reason to grant a further opportunity to the prosecution to prove

the same. Anyway, when the provisions of Article 20 (1) of the

Constitution were pointed out to the Court of Sessions, it ought

not to have directed a retrial to be held. The reasoning of the

Court of Sessions in that regard is not clear but on a perusal of

the order passed by it, it appears that it was of the view that the

petitioner could be prosecuted with respect to an offence

punishable under Section 174 of the Indian Penal Code on the

same facts. This was also improper as the ingredients of the

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offence punishable under section 174 are quite different and

nobody had sought to prosecute the petitioner with respect to

that offence. Moreover, cognizance of an offence punishable

under section 174 of the Indian Penal Code could not have been

taken in view of the provisions of Clause (a) of Sub-section (1) of

Section 195 of the Code.

8. Before parting, another illegality committed by the

Magistrate needs to be mentioned here. The Magistrate

sentenced the petitioner to suffer R.I. for one year and to pay a

fine of Rs.5,000/-; and then ordered that he be released on his

executing a bond of good behaviour as contemplated under

section 4 of the Probation of Offenders Act. This is not in

accordance with law. When a Court intends to grant benefit of

the provisions of the Probation of Offenders Act to an accused,

the Court is not required to - rather, is not permitted to - impose

a sentence upon him. This is clear from the terminology used in

Section 4 of the Probation of Offenders Act which makes it clear

that the order of release on probation has to be passed instead

of sentencing the offender. It is only in the event of breach of the

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bond executed, that the offender would be liable to be sentenced.

Thus, from this point also, the order passed by the Magistrate

was bad in law.

9. The petition is allowed.

The order of conviction of the petitioner is set aside.

The petitioner shall stand acquitted.

10. Rule is made absolute in the aforesaid terms.

                      ig                          ( ABHAY M. THIPSAY )
                                                            JUDGE.
                    
                                 ......................
     aaa/-