Rajeshwar Prasad and Others vs The State of Bihar

K.B.N. Singh, J.—Petitioner No. 1, Rajeshwar Prasad, has been convicted of the offences under Sections- 147, 323, 325, 426 and 452 of the Indian Penal Code (hereinafter referred to as the Code) and has been sentenced to pay a fine of Rs. 50/-, in default to undergo rigorous imprisonment for one month, u/s 147 of the Code, his conviction u/s 323 of the Code having been set aside by the lower appellate court. The remaining three petitioners have been convicted of the offences under Sections 147, 323, 426 and 452 of the Code and each of them has been sentenced to pay a fine of Rs. 50/-, in default to undergo rigorous imprisonment for one month, for the offence u/s 147 of the Code. No separation sentence has been imposed under the other counts on any of the four petitioners.

Being aggrieved by their convictions, the petitioners have preferred Criminal Revision No. 2425 of 1968. When this revision application was place-ed for final hearing before a learned single Judge of this Court, a rule of enhancement was issued, as no sentence was awarded to the petitioner under Sections 325 and 452 of the Code. That rule of enhancement gave rise to Criminal Revision No. 2097 of 1969.

Both these cases were placed for hearing before a Division Bench of this Court. Challenging the rule of enhancement before the Division Bench, the learned counsel for the petitioners urged that no illegality was committed in not awarding any sentence under Sections 325 and 452 of the Code, for which the petitioners were convicted, and, at any rate, this amounted only to an irregularity, not calling for. any interference by issue of a rule of enhancement. Learned counsel referred to a Bench decision of this Court in the case of Dulari Koeri Vs. Fauzdar Khan and Another, , in support of his submission. Their Lordships also noticed another Bench decision of this Court in the case of Alakh Singh and Others Vs. State of Bihar, according to which imposition of sentence of imprisonment u/s 452 was ''compulsory'', and pointed out that the provision of Section 325, in relation to sentence, was in similar terms as that of Section 452 of the Code. Their Lordships were of the view that there was conflict between the above two Bench decisions of the Court and, therefore, referred the matter to a larger Bench. Thereafter these cases have been placed before us.

The first question that arises for consideration before this Bench is whether the award of substantive sentence of imprisonment for convictions under Sections 325 and 452 of the Code is mandatory or not. It is not disputed that for the offences under the other counts under which the petitioners have been convicted it is not obligatory to the court to impose substantive sentence of imprisonment.

Section 325 of the Code provides that except in the case provided for by Section 335, whoever voluntarily causes grievous hurt, "shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Section 335, which is an exception to this provision, reads thus :--

"Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation shall be punished with imprisonment of either description for a term which may extend to four years, or with fine, which may extend to two thousand rupees, or with both."

Section 335 provides that if grievous hurt is caused on grave and sudden provocation, the punishment can be imprisonment or fine or both. Reading these two provisions, it is apparent that the sentence provided for an offence u/s 325 of the Code is a sentence of imprisonment and it is optional for the court to impose a fine or not, over and above the sentence of imprisonment. Thus, there cannot be any manner of doubt that in cases not falling u/s 335 and coming u/s 325 of the Code, a sentence of imprisonment, varying from one day to seven years, as may be warranted under the exigencies of the case, is called for.

Section 452, the other Section, with which we are concerned, reads thus :--

"Whoever commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

As in a case u/s 325, so also in a case under this Section, the sentence that has to be imposed is to be one of imprisonment and it is optional for the court to impose a fine or not. The wordings of the provisions of these two sections make it clear that there must be a sentence of imprisonment, whether a fine is imposed or not. This is without prejudice to the powers of the court, in appropriate cases, to deal under the provisions of Sections 4 and 6 of the Probation of Offenders Act.

Mr. Eana Pratap Singh, learned Counsel appearing on behalf of the petitioners, has urged that not awarding a sentence of Imprisonment is a mere irregularity, not justifying a rule of enhancement. He has also urged that on the facts and in the circumstances of this case, no Interference is called for in exercise of the revisional jurisdiction of this Court, inasmuch as some of the accused-petitioners were also assaulted in the occurrence and received more severe injuries than the complainant, and the trial court also convicted the informant of this case in the counter case. In support of his submission, learned Counsel relied on the decision in the case of Dulari Koeri Vs. Fauzdar Khan and Another, .

In the case of Ramchandra Rai and others, the accused were charged for theft of crop u/s 379 of the Code. They were, however, acquitted by the trial court of this charge and convicted u/s 325 of the Code, for which they were sentenced to pay a fine of Rs. 50/-. On appeal, the learned Sessions Judge made a reference to the High Court, as in his opinion, non-imposition of a substantive sentence of imprisonment u/s 325 of the Code was illegal. Their Lordships rejected the reference with regard to the acquittal u/s 379, and, while rejecting the reference with regard to the other question also, observed as follows :--

"As regards the erroneous sentence u/s 325, Penal Code, it is perfectly true that a mistake has been made by the Magistrate and that the conviction ought to have involved a sentence, however short, of imprisonment; but it is perfectly clear from an examination of the circumstances and the judgment of the Magistrate that the matter was of a petty character and the sentence of fine actually imposed by the Magistrate is, in the circumstances, adequate punishment. Notwithstanding that the sentence was irregular, we shall not interfere under our revisional powers which are intended for the redress of genuine grievances and not of mere formal defects. The reference is rejected."

Mr. Singh has emphasised that not awarding the sentence of imprisonment has been held to be ''irregular'' in the above decision.

Learned counsel has also urged that this Bench decision ( Dulari Koeri Vs. Fauzdar Khan and Another, ) has not been noticed in the latter Bench decision in the case of Alakh Singh and Others Vs. State of Bihar, while holding that not awarding a sentence of imprisonment for an offence u/s 452 (there being no dispute that the provision with regard to sentence in this section as well as in Section 325 of the Code is similar) as ''illegal'', and therefore, the earlier Bench decision should prevail. The question as to whether the earlier Bench decision should prevail or not does not fall for consideration, where the matter is before still a larger Bench for deciding the question in issue.

In the latter Bench decision in the case of Lakhshmi Chand Vs. The State, four of the accused were convicted of the offence u/s 452 of the Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rupees 100/-. On appeal, the lower appellate court affirmed their conviction but altered the senence awarded by the trial court and ordered that each of the convicted persons should pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for six months, in place of the substantive sentence of imprisonment, maintaining the imposition of a fine of Rs. 100/- by the trial court. The criminal revision application of those petitioners was admitted by this court on the question of sentence only. The informant also filed a criminal revision application for enhancement of the sentence, in which rule of enhancement was issued, and that application was placed for hearing along with the other revision application. It was contended on behalf of the informant in this Court that for the conviction u/s 452 of the Code, the sentence of imprisonment was compulsory and the lower appellate court was in error in altering the sentence to one of a fine only. Allowing the informant''s application for enhancement of the sentence, their Lordships observed as follows :--

"Having heard learned counsel for the parties in these two cases, we are of the opinion that the learned Judge on appeal had committed an error of law in imposing only sentences of fine after upholding the convictions of the four accused persons u/s 452 of the Indian Penal Code. We, therefore, propose to alter the sentences passed on the four convicted persons thus : All the four convicted persons must be awarded sentence of imprisonment for their convictions u/s 452 of the Indian Penal Code, and it appears that all of them were in jail for sometime at least for their convictions recorded by the trial court on the 18th September, 1961. Therefore the period of imprisonment undergone by the four convicted persons will be taken to be sufficient sentence for their convictions u/s 452 of the Indian Penal Code."

Mr. K. P. Verma, learned Government Advocate, appearing in the other criminal revision, has urged that the legal position has been correctly enunciated in the case of Alakh Singh and others that the non-award of sentence of imprisonment u/s 452 for for the matter of that u/s 325)of the Code, however short, was an error of law and an illegality and not mere irregularity, as urged by Mr. Singh.

There cannot be any doubt on the express wordings of Sections 325 and 452 of the Code that the sentence to be imposed under these counts is one of imprisonment. The liability as to the fine is optional. In the decision relied upon by Mr. Singh ( Dulari Koeri Vs. Fauzdar Khan and Another, ), no doubt, it is mentioned that it is ''irregular'', but that decision does not specifically lays down that it is not illegal. In that case the reference was on the ground that the sentence of fine u/s 325 of the Code was illegal. Their Lordships, while declining to interfere in exercise of revisional jurisdiction in the matter of sentence, on the facts of that case, have, no doubt, used the expression that the sentence of fine was ''irregular''. Nothing is said in that case that the view of the learned Sessions Judge that such a sentence was ''illegal'' was not a correct one. The view taken in the case of Lakhshmi Chand Vs. The State, (the latter Bench decision of this Court) is in consonance with the views of the other High Courts also, which I will have occasion to refer in other context hereinatfer and, in my opinion, correctly lays down the law.

Mr. Singh, on behalf of the petitioners, has fairly not challenged the conviction recorded by the courts below against the petitioners. It may be stated that it was not even challenged before the Division Bench. He has, however, urged that the instant case is not a fit one for interference in exercise of revisional jurisdiction of this Court, and, therefore, the rule of enhancement should be discharged. This brings in the question of consideration of the respective cases of the parties.

On the 17th September, 1964, at about noon, the informant Fasahat Hussain (P. W. 6) was giving Pusta towards the east and south of his house in plot No. 261, in village Cherki in the District of Gaya. Two masons and three or four labourers were also engaged in this work. According to the prosecution, the accused persons came at the place where the Pusta was being constructed, and removed the bricks of the Pusta and it is alleged that petitioner Rajeshwar Prasad hurled a Lathi on the informant, which injured the middle finger of his right hand, which is alleged to have been fractured. The accused persons also chased the informant to his verandah and assaulted him. The informant went to Gaya and was admitted in the Pilgrim Hospital there as an indoor patient, the same day. On the 18th September, 1964, at 7.30 P. M. an Assistant Sub Inspector of Police went to the Hospital and recorded the Fardbeyan of the informant, on the basis of which the formal information report was drawn up.

The defence of the petitioner was that the prosecution case was a counter-blast to the case lodged by Petitioner No. 1 against the informant of this case and his son, who had assaulted him when Petitioner No. 1 protested against blocking of the lane near plot No. 263, which belonged to him, and was an encroachment on his land by making a new wall therein. They also examined a defence witness in support of their case.

Learned counsel for the petitioners has referred to the evidence of Dr. Ambika Prasad Singh (P. W. 9), Civil Assistant Surgeon of the Pilgrim Hospital Gaya, who examined the injuries of the informant on the date of the occurrence itself at 8-25 P. M., and found swelling and tenderness over the right middle finger with fracture of the first falange and a few bruises. Learned Counsel has pointed out that the same doctor, three hours earlier, examined petitioner No. 1 and found six injuries, including injuries on parietal region and on the right side face below the lower eye-lid. Both the prosecution case and the counter-case were tried by the same Honarary Magistrate, who convicted the informant u/s 323 and Section 447 of the Code and sentenced to pay a fine of Rs. 30/-, in default to undergo rigorous imprisonment for three weeks. He has further urged that the learned Honorary Magistrate considered the sentence imposed on the petitioners u/s 147 of the Code to be ''enough'', on the facts and in the circumstances of the case, and awarded no separate sentence under the other counts.

It has been conceded, and, in my opinion, rightly, by learned Government Advocate that the power of interference in exercise of the revisional jurisdiction of this Court in matter of sentence is a discretionary one. He has also drawn our attention to the observations of the Supreme Court in the case of Pranab Kumar Mitra Vs. The State of West Bengal and Another, as to the true scope of the revisional jurisdiction of the High Court. Their Lordships observed as follows :--

"Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognised by the Courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court."

It is, therefore, manifest that the discretion lies in the Court, in exercise of the revisional jurisdiction, to interfere or not to interfere, even if an illegality has been committed, depending on the facts and circumstances of each case, in consonance with the principles of justice between the parties and exigencies of the situation.

The view I have taken gains support from the decisions of the other High Courts also and reference may be made to only a few of them. Some of the decisions of the Lahore High Court have been noticed and followed in the case of The State Vs. Kangan Suba Gujjar, . In that case, on a reference by the Sessions Judge, a rule of enhancement was issued as to why the sentence of fine alone u/s 325 of the Code be not enhanced to that of imprisonment. Discharging the rule of enhancement, it was observed in that case as follows :--

"Coming to the present case, we find that the incidents of this nature are of common occurrence and in the present case substantial punishment was given to the accused by Bachni''s son Kartar Singh who gave him sufficient beating. This beating was taken into account by the Magistrate when he sentenced the accused to a fine only. The occurrence took place, as I have said before, on 1-8-1951 and on 25-11-1952 I am not prepared to sentence the accused to undergo imprisonment in the circumstances of the present case. I, therefore, reject the reference."

In the case of Bisheshar and Others Vs. Rex through Bachcho Lal Pandey, , a Bench of the Allahabad High Court observed as follows :--

"Usually when a Court finds that although the offence committed falls u/s 325, Penal Code, yet it does not call for a sentence of imprisonment, it seeks to conform to the letter of the law by awarding a sentence of imprisonment till the rising of the Court. In this case, even this was not done. A Court sitting in revision is not bound to interfere even though an illegality has been committed by the lower court, if it finds that substantial justice has been done."

A somewhat different view has been taken in a Bench decision of the Kerala High Court in the case of State Vs. Theyyan, . In that case, their Lordships of the Kerala High Cour observed as follows :--

"No doubt, interference In revision u/s 439 is a matter of discretion vested in the High Court. It is obvious that the discretion contemplated by the section is a judicial discretion. Where the High Court is satisfied that the Subordinate Court has committed an illegality, the proper course to be adopted by the High Court is to interfere and set right the illegality. To decline to interfere by the exercise of revisional jurisdiction in respect of such a matter will be to condone the illegality and to perpetuate the same. Where the commission of an illegality of the kind mentioned above, is brought to the notice of the High Court within a reasonable time, we think the High Court is bound to interfere and to rectify the mistake committed by the Subordinate Court and to award the proper sentence sanctioned by law."

The above decision, although accepted the position that interference in exercise of revisional jurisdiction is discretionary with the Court, has come to the conclusion that the High Court is bound to interfere if the illegality has been pointed out within a reasonable time and the Court has no discretion in the matter. With due respect to the learned Judges I think, in appropriate cases, the High Court has discretion to interfere or not to interfere with an order. It cannot be doubted that the power of revision is a discretionary power, in view of the above mentioned pronouncement of their Lordships of the Supreme Court. As a matter of fact, such a discretion lies with the Court is also accepted by the above decision of the Kerala High Court that if an illegallity is brought to be notice of the High Court within a reasonable time then alone the High Court is bound to interfere, otherwise not.

In the instant case, as already pointed out above, we find that both sides received injuries and the occurrence is seven years old. Both sides are close neighbours and the occurrence took place over a trifling matter. In my opinion, it will not be just and proper, in the exercise of revisional jurisdiction of this Court, to enhance the sentence and to impose a sentence of imprisonment and send the petitioners to jail. I would accordingly discharge the rule of enhancement.

In the result, the revision application filed by the petitioners is dismissed and the rule of enhancement is discharged.

Kanhaiyaji, J.

I agree.

Sarwar Ali, J.

I agree.