Emperor vs Prabhu Upadhaya

Dawson Miller, C.J.—Prabhu Upadhaya was tried on the 15th August last before the Sub-Divisional Magistrate of Bhabhua for the offence of receiving stolen cattle knowing or having reason to believe that they were stolen and was convicted and sentenced u/s 411 of the Indian Penal Code to 45 days'' rigorous imprisonment. The evidence shows that at about mid-night on the 2nd February last two chaukidars whilst going round the village on duty saw four bullocks being taken into Prabhu''s house. Suspecting that they had been stolen one of the chaukidars kept watch on the house whilst the other went to fetch the Police from the Thana. When the Police arrived later they found the bullocks in Prabhu''s house and these were subsequently identified by Alam Shah as those stolen from him on the previous night. The accused''s case was that one Khedan Ahir brought them to his house and tethered them there and that he did not know they were stolen. The Magistrate found that although the accused may not have been a thief himself nevertheless in the absence of any satisfactory explanation of how the four bullocks came into his house which he must have had reason to believe were stolen he must suffer the criminal liability but having regard to his age and infirmity--he was suffering from cataract--he took a lenient view and sentenced him to 45 days'' rigorous imprisonment as stated.

The case has been referred to this Court by the District Magistrate with a recommendation that the sentence should be increased u/s 438 of the Code of Criminal Procedure. It appears that the Police brought the matter to the notice of the District Magistrate on the 17th October with a view to enhancement of the sentence and on the 7th November the District Magistrate referred the case to this Court as stated. It will be noticed that the accused had served his sentence and had been released from prison some five or six weeks before the case was referred to this Court by the District Magistrate in November. From enquiries it appears that the result of the trial was made known to the Superintendent of Police before the end of August but no steps were taken to move the District Magistrate in the matter before the middle of October after the accused had been released from prison. In all cases where the sentence is considered by the prosecution to be inadequate the District Magistrate or the Sessions Judge, as the case may be, should be moved by the Police at the earliest possible moment after the trial and certainly, where possible, before the accused has served his sentence. I am fully aware that there are many cases where a very short sentence is imposed in which it is impossible to move the higher Court before the sentence has expired, and the fact that the sentence has expired before such action is taken is, in itself, no reason for refusing to interfere. At the same time where the accused has been released after being imprisoned for six weeks or more and no action is taken during that time to move for an enhancement of sentence he may reasonably expect that no further action will be taken and that he has expiated his crime, and it is an additional hardship upon him if he should find afterwards that he has to so back to prison again for a further term. It would appear that there was regrettable delay in this case in the office of the Superintendent of Police in failing to bring the matter to the notice of the District Magistrate between the end of August and the middle of October which delay has not been accounted for. It may, however, be capable of explanation and I do not consider it necessary to add any further comment.

I do not think that in the present case we should allow this delay to influence our judgment if we thought that the sentence inflicted was altogether inadequate to the particular circumstances of the case and it must be admitted that the offence was a serious one. At the same time the Sub-Divisional Magistrate took into account the age and infirmity of the accused and in passing sentence has exercised his discretion in the matter. Had he not been influenced by these considerations, we should have felt bound to increase the sentence; but having regard to all the circumstances of the case we consider that the sentence should not be enhanced.

Mullick, J.

Having regard to the fact that the explanation of the trying Magistrate has not been taken and having regard to the other circumstances of this case, I agree that the Reference should not be accepted.