# THE STATE OF UTTAR PRADESH v. SHAWKAR AND ANOTHER

- **Citation:** [1962] Supp. 3 S.C.R. 213
- **Court:** Supreme Court of India
- **Decided:** 1959-09-11
- **Bench:** J. L. Kapur, K. C. Das Gupta, R~GHUB.Ut DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-v-shawkar-and-another-2372
- **Pages:** 5

## Headnote

Power of Appellate Court-Conviction b11 MagiatraUA ppeal to Sessions Court-If can direct commitment of acc~edCode of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b).
The respondents were convicted by a Magistrate under
s. 326 Indian Penal Code. They appea1ed to the Court of
the Sessions Judge who set aside the conviction and directed
the case to be committed tO the Court of Session. On revision
the High Court set aside the orde~ holding that the Sessions
Judge had, in an appeal against conviction, no power to direct
commitment to the Court of Session.
Hdd, that the words of s. 423 (1) (b) of the Code of
Criminal Procedure clearly emplwered an appellate court t<>
order commitment for trial to the court of Session.
The
power was not limited to cases exclusively triable by a court
of Session.
Queen Empress v. Abdul Rahiman, ( 1891) I. L. R. 16
Bom. 580; Queen E'IDpress v . .IJLaula Baktk, ( 1893) I. L. R. 15
All. 205 and Salish Chander Das Bose v. Queen Empress,
( 1899) I. L. R. 27 Cal. I 7i, approved.
CR.!MINAL APPELLATE JurusDICTION: Cr. A. No.
206/l9ti0.
Appeal by special . leave from the judgment
and ordei' dated September 11, 1959, of the
Allahabau
High Court
(Lucknow
Bench) at
Lucknow in C~iminal Revision No. 179 of 1959.
G. C. Mathur and 0. P. Lal, for the appellant.
The respondent did not ·appear.
1962. February 15.
The Judgment of the
Colirt was delivered by
KAPUR, J .. -In this appeal against the judgment
and order of the High Court of .Allahabad, the
1962
Tht Slolt uf
Uttar P1odt1h
v.
Shdnkar
Kapur J.
214 SUPRE:IIE L'OCR'i' REl'OltTS (1962] SUPP.
question of the interpretation of s. ,12:3( 1 )(b) of the
Criminal Procedure Code arises.
The case of the prosecution was that respondent Shankar wanted to have illicit intimacy with
?11Rt. .Mithana who was not agreeable to his
ad vanecs. In order to take his revenge he cut off
her nose
on January 28, l!J59.
The allegation
againat the other respondent Goberdhan was that
he helped Shanker in foll ing her down and ca,ught
her while Shankt•r cut off her nose. Both tho respondents were tried under s. 326 read with s. :J4 of the
Indian Penal Code and the i\Iagistrate Ist class .
found them guilty and sentenced them to rigorous
imprisonment for 18 months each.
An appE>al was
taken against this order to the Ressions Judge,
Sitapur, who on June 12, HJ59, set aside the order
of convicti<m and directed the case to be committed
to the Court of Session.
On ,July 15, 19;)9, the
J.Iagistrate committed the respondents to the court
of Session to stand their trial under s.
3~6 read
with s. 34 of the Indian Penal Code.
A revision
was taken to the High Court against the order of
the Sessions Judge.
The High Court held that the crime was not
only brutal but most cowardly and that the offence
was of a grave nature; that the Magistrato was
wrong in assuming jurisdiction in such & case and
that the cutting of a woman's no8e was troatod as
a trivial matter by the .Magi8tratc.
The learned
Judge, however, was of the opinion that a Scs8ion
Judge bearing an appeal against conviction had no
power to direct commitment to the court of Session;
all that he could do was to recommend enhancement of the sentence but it was not worthwhile
enhancing tho sent.enc" because tho enhancement
could only Le from 18 months to two years.
He
thereforo allowed the revision and set aHide the
order of tho Ses:;ions Judge aud directed that the
appeal be reheard on merits.
.Against
thi~ order
the State has come in appeal to this Court Ly
3 S.C.R.
SUPREME COURT REPORTS
215
Special Leave. It m:i,y be mentioned that on an
application made to ·the learned Judge under
s. 561A Criminal Procedure Code, the learned Judge,
after referring to several decided cases, was still of
the opinion that his previous order was correct and
he declined to give a certificate under Art. 134(1)
(c) and the State has come in appeal by Special
Leave. It is not necessary to decide the question
whether the application under s.561 A was entertaina

## Text

,..
3 S.C.R.
SUPREME COURT REPORTS
THE STATE OF UTTAR PRADESH
v.
SHAWKAR AND ANOTHER
213
(J. L. KAPUR, K. C. DAS GUPTA and R~GHUB.Ut
DAYAL, JJ.)
Power of Appellate Court-Conviction b11 MagiatraUA ppeal to Sessions Court-If can direct commitment of acc~edCode of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b).
The respondents were convicted by a Magistrate under
s. 326 Indian Penal Code. They appea1ed to the Court of
the Sessions Judge who set aside the conviction and directed
the case to be committed tO the Court of Session. On revision
the High Court set aside the orde~ holding that the Sessions
Judge had, in an appeal against conviction, no power to direct
commitment to the Court of Session.
Hdd, that the words of s. 423 (1) (b) of the Code of
Criminal Procedure clearly emplwered an appellate court t<>
order commitment for trial to the court of Session.
The
power was not limited to cases exclusively triable by a court
of Session.
Queen Empress v. Abdul Rahiman, ( 1891) I. L. R. 16
Bom. 580; Queen E'IDpress v . .IJLaula Baktk, ( 1893) I. L. R. 15
All. 205 and Salish Chander Das Bose v. Queen Empress,
( 1899) I. L. R. 27 Cal. I 7i, approved.
CR.!MINAL APPELLATE JurusDICTION: Cr. A. No.
206/l9ti0.
Appeal by special . leave from the judgment
and ordei' dated September 11, 1959, of the
Allahabau
High Court
(Lucknow
Bench) at
Lucknow in C~iminal Revision No. 179 of 1959.
G. C. Mathur and 0. P. Lal, for the appellant.
The respondent did not ·appear.
1962. February 15.
The Judgment of the
Colirt was delivered by
KAPUR, J .. -In this appeal against the judgment
and order of the High Court of .Allahabad, the
1962
Tht Slolt uf
Uttar P1odt1h
v.
Shdnkar
Kapur J.
214 SUPRE:IIE L'OCR'i' REl'OltTS (1962] SUPP.
question of the interpretation of s. ,12:3( 1 )(b) of the
Criminal Procedure Code arises.
The case of the prosecution was that respondent Shankar wanted to have illicit intimacy with
?11Rt. .Mithana who was not agreeable to his
ad vanecs. In order to take his revenge he cut off
her nose
on January 28, l!J59.
The allegation
againat the other respondent Goberdhan was that
he helped Shanker in foll ing her down and ca,ught
her while Shankt•r cut off her nose. Both tho respondents were tried under s. 326 read with s. :J4 of the
Indian Penal Code and the i\Iagistrate Ist class .
found them guilty and sentenced them to rigorous
imprisonment for 18 months each.
An appE>al was
taken against this order to the Ressions Judge,
Sitapur, who on June 12, HJ59, set aside the order
of convicti<m and directed the case to be committed
to the Court of Session.
On ,July 15, 19;)9, the
J.Iagistrate committed the respondents to the court
of Session to stand their trial under s.
3~6 read
with s. 34 of the Indian Penal Code.
A revision
was taken to the High Court against the order of
the Sessions Judge.
The High Court held that the crime was not
only brutal but most cowardly and that the offence
was of a grave nature; that the Magistrato was
wrong in assuming jurisdiction in such & case and
that the cutting of a woman's no8e was troatod as
a trivial matter by the .Magi8tratc.
The learned
Judge, however, was of the opinion that a Scs8ion
Judge bearing an appeal against conviction had no
power to direct commitment to the court of Session;
all that he could do was to recommend enhancement of the sentence but it was not worthwhile
enhancing tho sent.enc" because tho enhancement
could only Le from 18 months to two years.
He
thereforo allowed the revision and set aHide the
order of tho Ses:;ions Judge aud directed that the
appeal be reheard on merits.
.Against
thi~ order
the State has come in appeal to this Court Ly
3 S.C.R.
SUPREME COURT REPORTS
215
Special Leave. It m:i,y be mentioned that on an
application made to ·the learned Judge under
s. 561A Criminal Procedure Code, the learned Judge,
after referring to several decided cases, was still of
the opinion that his previous order was correct and
he declined to give a certificate under Art. 134(1)
(c) and the State has come in appeal by Special
Leave. It is not necessary to decide the question
whether the application under s.561 A was entertainable in the circumstances of the care.
Section 423 of the Criminal Procedure Code
deals with the power of the Appellate Court in
disposing of appeals against convictions.
The
relevant portion of the section is contained in cl.(b)
of sub-s.(l) of that section which is as followsiS. "423 ( 1) The Appell:ite Court shall then send for
the record of the case, if such record is
not already in Court.
After perusing
such record and hearing tbe appellant or
his pleader, if he appears and the Public
Prosecutor if he appears, and, in case of
an appeal under section 411A, sub-section
(2). or section 417 the accused, if he
appears, the Court may, if it considers
that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) ..................................... : ................ .
(b) in an appeal from
a conviction, (1)
reverse the finding and sentence, and ·
acquit or discharge the accused, or order
. him to be retried by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or (2) alter
the finding, maintaining the sentence, or,
with or without .altering the finding,
reduce the sentence, or, (3) with or without such reduction and with or without
1962
Tht Stale of
Uttar Pradesh
v.
Shankar
Kapur J.
19i2
T11e s1.1, •I
Utt•r l)rWsh
••
Sli1n/;u
•
2i6
SUPRE~IE COURT REPORTS [1962] SUPP.
altering the finding, alter the nature of
the sentence, but, subject to the provisions
of section 106, sub-section (3), not so as
to enhance tho same".
The Code .eipressly gives the power t.o
the
Appellate Court to dismiss the appeal, to acquit or
discharge the accusc<l or order him to be retried or
committe<l for trial.
Therefore the section does
empower the Appellate Court to order oommitment
for trial to tho Court of Session.
The Court~ in
India havo almost unanimously held that to be the
interpretation of the section. In Queen Empress
v. Abd·ul Rahinwn (')whore tho circumstances were
almost similar as tho one in tho present case, it was
held that s. 423( b)
which is the oorresponding
section of tho Code of 1882 empowered an Appellate
Court to order an accused person to be committed
for trial. That was aleo the view of the Allahabad
High Court in Queen Einpre,.~s v . . Maula Baksh.(') In
an earlier case Qua>n Empres8 v. Suk!UJ('), All1ihabad
High Court held that under s. 42:~ of the Code a
commitment
could
bo
ordered only when an
offence wa1:1 exclusively triable by a court of ::ie~ion.
That view wao overruled in the later Allahabad
caso Q·ueen Empress v. Maula Baksh(') and was not
accepted in the Bombay case above quoted. It is
not necessary to refer to c&&es decided by other
Courts where it ha~ been held that the power to
order commitment under s. 423(1) (b) is not limited
to cases exclusively triable by the court of Session.
In Satish Chander U"'8 Bose v. Queen Empress(') and
other c&Sea of the High Court ol Alla.ha.bad the
earlier view in Suklw:B case was not accepted.
In our opinion the words of s. 423 (I) (b) of
the Code a.re quite clear and the power of the
(I) (1891) I. L. R. 16. Bom. 58-0.
(3) (1885) I. L. R. 8. AIL 14.
(2) [1893] l. I.. R. 15 All. 205.
(4) (1899) l.L.R. 27 DJ. 172.
3 S.C.R.
SUPREME COURT REPORTS
217,
Appellate Court to commit is not ci.rcumscribed to
oases oxclusively triable b5 a court of Session and
the High Court was in error in taking a contrary
view.
We therefore allow this appeal, set aside the
order of the High Court and restore that of the
Sessions J utlge.
Appwl allowed.
BALJEET SINGH & OTHERS
v.
RISAL SINGH & OTHERS
(B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR
RAGHUBAR DAY.AL, JJ.)
and
Civil Procedure-Res judicata-Twelve suits against four sets
of defenda .. ts-Decreed by common judgment-Twelve app<alsAppeals by one set of defendants dismissed for default-Whether
other appeals barred-Appeals to Supreme Court-Consolidation
Operations-If make appeals infructuous-U.P. Consolidation of
Holdings Act, 1953, (U.P. V of 1954).
K, H and M filed four suits each against four sets of
defendants in respect of different sets of plots under s. 175
U. P.
~renancy. Act, 1939. Since similar points were involved
the twelve suits were tried together and were disposed of by a
common judgment decreeing them. Twelve decrees wCre
prepared and the defendants preferred twelve appeals to the
Additional Commissioner. Three appeals by one set of the
defendants B were dismissed for default and the remaining
nine were dismissed on merits. Against the dismissal of the
nine appeals on merits the three sets of defendants preferred
nine second appeals before the Board of Revenue but they were
dismissed as barred by res judicata on May 7, 1954. In
November, 1954, the appellants filed petitions for special leave
before the Supreme Court and on April 18,
1~55, special
leave was granted. In July 1954, the villages in which the
lands in suit were situate came under consolidation operations
onder the U. P. Consolidation of Holdings Act, 1953, and the
operations were completed by the publication of a notification
19!2
T/,, 81atnf
Uttar Pradesh
v.
Shonk.,
K•ftur J.
1963