GUJARAT HIGH COURT
K.J. Vaidya, J.
State of Gujarat - Petitioner
versus
Luhar Mithu @ Harun Ismail - Respondent
Crl. Appeal No. 811 of 1981
Decided on 11.8-1989
Counsels for the parties:
Mr. D.K. Trivedi, A.P.P.- For the Petitioner.
Mr. B.R. Parikh, Advocate - For the Respondent.

IMPORTANT POINT
In an appeal against acquittal, if on the evidence brought on the record, the appellate court feels satisfied that the accused has been illegally acquitted thin in that case it is its bounden duty to pass necessary legal order of conviction even after a lapse of 9 years period.

Headnote:(i) Bombay Police Act 1951 - Sections 56 & 142 - Gujarat Amendment Act No. 16 of 1978 - Externment Order under -Section 56 Breach - Prosecution under Section 142 - Acquittal order mainly relying upon a decision in Sabuddin Shaikh case: (1968) IX GLR 142(FB)- However, the said decision is not applicable to the instant case as the same is with reference to the un-amended Section 56 of the Act - Acquittal order set aside as illegal.

       Held: It is indeed unfortunate that the desired care is not taken by all concerned. The Learned P.P. with little more vigilence could have cleared the confusion while arguing the case pointing out the effect of the said Amending Act. Had the learned P.P. read the contents of Ext. 20 Notification, acquittal would not have been recorded. The learned S.D.M. also, in his turn when he was placed with a misleading question in cross-examination could have immediately volunteered the correct reply pointing out that in view of the Amending Act it was not necessary to be so "specially" empowered to exercise the power under Section 56 of the Police Act. This was certainly expected from the witness who himself passed the order of externment and was conscious of the said Amending Act. Above all these officers, the Trial Court at least should have exercised more care and ought to have been vigilent in this matter. It had got to pierce through the deceptive veil of arguments. What was required to be done by all concerned was just to read Ext. 20 Notification where the reference is made to the Amending Act. Unfortunately out for this darkness at noon the case would have once and for all ended on 2nd December, 1980. Under the circumstances, legal and natural consequences of the above discussion is that the accused requires to be convicted for the alleged offence under Section 142 of the Police Act. (Para 8)

       (ii) Criminal Procedure Code, 1973 - section 378 - Appeal Against Acquittal Illegal acquittal- Conviction after about 9 years is justified? - (yes, however, while awarding the sentence the factum of the protracted proceeding, hangover for 9 year and turn of events in the life of accused during this period can be taken into consideration - Considering the peculiar facts and circumstances of case, the ends of justice will be fully met if the sentence ready undergone by the accused is held to be sufficient.

       Held: if on the evidence brought on the record, .the appellate Court feels satisfied that the accused has been illegally acquitted then in that case it is bounden duty of it to pass necessary legal order of conviction. As against that to accept the submission of the learned Advocate Mr. Parikh that to record an order of conviction after 9 years is too harsh is frought with two serious consequences namely: (i) the same will be tantamount to writing-off powers of High Court in passing the order of conviction in acquittal appeals as provided in the Code of Criminal Procedure, 1973, once it is shown that offence bas become stale having been committed number of years back, (ii) same in its turn turn-out to boon of paradise to the accused. This simple is but done and hence cannot be permitted. It is that the protracted proceedings before the Court in many cases do hang like a sword of Democles on the head of the accused and till the said legal proceedings are terminated the tale of woe of the physical, psychological and financial suffering of the accused does not end. It is also quite true that in a given case in the event of the acquittal appeal being allowed and the accused is convicted after number of years after the date of offence, there is every likelihood that with the passage of time much water passes by and many and marked changes run through the lives of the accused, for example... (i) the waning factions after the alleged incident had come to terms and become friendly and peaceful citizen, and/of: (ii) the accused is otherwise has become peaceful, law abiding unit of the society and his stability has started gathering roots in, and/or (iii) the accused got married and/or minor children are to reared up, and/or (iv) the accused has to shoulder some other responsibilities, and/or (v) the accused has abandoned to live and thrive on life of crimes and has turned a new leaf in his life, and/or (vi) that the offence is of technical or a trivial nature. Under such circumstances though as warranted by law, the accused is required to be convicted, but then the list of aforesaid circumstances are the circumstances which are required to be taken into consideration, by the Court for determining the just and proper sentence. It is true that the order of sentence is not to be passed by way of vengeance, but at the same time the principles of penology has its own place in Criminal Jurisprudence depending upon the facts and circumstances of the each case. For these reasons though I disagree with Mr. Parikh that the order of conviction in the facts and circumstances of the case cannot be passed as it would be harsh. I do see a reason in submission of Mr. Parikh that at the time while awarding the sentence the factum of the protracted proceeding, hangover for 9 years and turn of events in the life of accused during these 9 years can be taken into consideration. (Para 9)

       Further Held: having regard to the facts and circumstances of the case, this is a case wherein the Court can justly award a, sentence less than six months. They are - (i) that the Criminal Case under, appeal is of the year 1980; (ii) that technically the accused did commit an offence under Section 142 of the Bombay Police Act by committing breach of the conditions under the externment order passed by the learned Sub. Divisional Magistrate, Anjar, against him, but the same was committed under helpless emergent situation namely his father was seriously ailing and was bed-ridden and therefore he appears to have risked the breach of condition by coming to see him at Anjar; (iii) that there is nothing on the record to show that after committing breach of the said condition and entering Anjar he committed any one offence; (iv) that the accused was already in jail for about 3 months and 4 days after he was so arrested on 29th August, 1980; (v) that he had also undergone the pain and agony of the sward of pending appeal hearing.

       There is a considerable force in the aforesaid submissions of Mr. Parikh. Thus, in peculiar facts and, circumstances of the case, it appears to me that the ends of justice will be fully met if so far as the question of the sentence of substantive imprisonment is concerned, the sentence, of imprisonment for 3 months and 4 days already undergone in jail by the accused pending the trial is held to be sufficient. The question yet remains to be considered is whether a sentence of fine should be imposed on accused or not. On this point, the learned Additional P.P. was fair enough to point me out from the report of the D.S.P. Kutch that the accused was living a wandering life and hence it can reasonably be inferred that he had no means of livelihood. Under the circumstances, it would not be just to punish the poverty by making the accused to pay tine. (paras 11 & 12)

       Result: Appeal allowed.