Allowed

Ishrat Hussain S/O Mohammad Hussain v. the State of Mah

Bombay HC20 Nov 2013WP/68/2010

Case brief

AI extract

What is this about?

The High Court quashed the conviction under Section 174-A IPC, holding it violative of Article 20(1) Constitution as the section was not in force at the time of the alleged offence. The Court also set aside a retrial directed by the Sessions Court and a sentence-probation order passed by the Magistrate.

What did the court decide?

Petitioner acquitted; conviction set aside; retrial quashed; probation order restored without sentence.

Ishrat Hussain S/O Mohammad Hussain Vs the State of… — Criminal Trial and Appeal | Bombay HC (2013)

¶1

wp 68.2010.odt

¶2

¶3

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶4

CRIMINAL WRIT PETITION NO.68 OF 2010

¶5

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)

¶10

Mr. A.K.Bhosale h/f Mr. K.G.Bhosale Advocate for the petitioner. Mr. S.R.Palnitkar APP for respondent state

¶11

CORAM : ABHAY M. THIPSAY, J. Dated: November 20, 2013

¶12

ORAL JUDGMENT :-

¶13

Rule. By consent, Rule made returnable forthwith. By consent, heard finally.

¶14

wp 68.2010.odt

¶15

¶16

The applicant was prosecuted vide RCC No.

¶17

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

¶18

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

¶19

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

¶20

which was in respect of an offence punishable under section 324

¶21

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

¶22

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

¶23

wp 68.2010.odt

¶24

¶25

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

¶26

has invoked the Constitutional jurisdiction of this Court by filing present petition.

¶27

A number of contentions have been raised by

¶28

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

¶29

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

¶30

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.

¶31

Section 174-A has been inserted in the Indian Penal

¶32

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

¶33

23.6.2006.

¶34

The allegation against the petitioner was that he had

¶35

committed an offence punishable under section 174-A of the

¶36

wp 68.2010.odt

¶37

¶38

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.

¶39

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

¶40

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.

¶41

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

¶42

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

¶43

wp 68.2010.odt

¶44

¶45

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

¶46

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

¶47

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

¶48

wp 68.2010.odt

¶49

¶50

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.

¶51

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

¶52

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

¶53

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

¶54

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

¶55

wp 68.2010.odt

¶56

¶57

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

¶58

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

¶59

was bad in law.

¶60

The petition is allowed.

¶61

The order of conviction of the petitioner is set aside.

¶62

The petitioner shall stand acquitted.

¶63

Rule is made absolute in the aforesaid terms.

¶64

( ABHAY M. THIPSAY ) JUDGE.

¶65

aaa/-

Ishrat Hussain S/O Mohammad Hussain v. the State of Mah

Case brief

What is this about?

What did the court decide?

Ishrat Hussain S/O Mohammad Hussain v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pooja Mahesh Vaidya and Ors. Vs the State of Mah and Ors.

M/S Videocon Narmada Electronics Ltd. Vs M/S Top Line Shoes Limited

Manjoor Ahemad Kureshi Fakir Mohammad Vs the State of Maharashtra and Another

Sanjay Bhagwan Chaudhari and Ors. Vs the State of Maharashtra and Anr.

Shaikh Mansoor Shaikh Maddu Vs Zaidabee Shaikh Maddu and Another

Govind Arjundas Artani Vs Bhaskar Kashiram Chaudhari