Ms. Swati Maindola vs State Of Uttarakhand on 17 July, 2017

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.

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3. 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
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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.

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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
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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.]
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(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
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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 372AIR 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
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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
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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

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