THE STATE OF UTTAR PRADESH versus SHAWKAR AND ANOTHER

Citation: [1962] SUPP. 3 S.C.R. 213 · Decided: 15-02-1962 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

,.. 
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 MagiatraU-
A ppeal to Sessions Court-If can direct commitment of acc~ed-­
Code 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 respon-
dent 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 respon-
dents 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 enhance-
ment 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 enter-
tainable 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) 

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