Shiva Nath Pathak and Others vs State of U.P.

B.K. Sharma, J.—Heard counsel for the parties.

Ambrish Kumar, Judicial Magistrate-IV, Ballia vide his order dated 22.7.1982 in Criminal Case No. 415 of 1981, convicted the accused-Appellants Shiv Nath Pathak, Janardan Pathak, Padum Deo Pathak, Shyam Nath Pathak, Radhey Shyam Pathak, Saraddeo Pathak and Basant Pathak for the offences Under Sections 147, 323/149 and 336 I.P.C. and sentenced each of them to undergo rigorous Imprisonment for a period of one month and to pay a fine of Rs. 100 for the offences u/s 147, I.P.C, to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 100 for the offence u/s 323/149. I.P.C. and to pay a fine of Rs. 50 each for the offence u/s 336, I.P.C. He further directed that in lieu of payment of fine each of them will suffer imprisonment for a period of one month each. The preferred Criminal Appeal No. 98 of 1982 before the Sessions Judge. The Sessions Judge by his judgment dated 11.1.1983, dismissed the appeal and confirmed the conviction and also sentence passed by the learned Magistrate.

Now In this revision the learned Counsel for the revisionists has not challenged the conviction of the accused-revisionists by the trial court and its confirmation by the learned Sessions Judge. He has only prayed that the sentence be reduced to the period of imprisonment already suffered. He has pointed out that the occurrence related to the date 21.6.1981 and the accused-revisionists were balled out by this Court by order dated 17.1.1983 and that a long time has been passed and since then the accused-revisionists are on bail and argued that it would be very harsh to send them back to Jail now after more� than 12 years. He has also pointed out that the criminal appeal was dismissed by the Sessions Judge on 11.1.1983 and on that date the accused-revisionists must have been taken Into custody and sent to Jail and that the bail order was passed by this Court on 17.1.1983, Le" after 6 days and that in the ordinary course a few days more are taken in the actual release on bail in pursuance of the bail order passed by this Court. I have already noted that the sentence of each imprisonment was only one month and the sentence was to run concurrently. Under these circumstances the prayer made by the learned Counsel for the revisionists may be properly accepted.

The revision is dismissed. The conviction of the accused revisionists is sustained. However, the sentence of imprisonment of each accused-revisionists for the offences u/s 147 I.P.C. and Section 323/149 is reduced to the period of Imprisonment already undergone by them as an under trial and as a convict and the sentence of fine for these offences is set aside. The sentence of fine for offence u/s 336 I.P.C. Is maintained.

The accused-revisionists are on bail. They are allowed one month''s time from today to pay the fine of Rs. 50 each. In default of payment of fine they shall suffer simple Imprisonment for a period of seven days.

Let a copy of this judgment be sent to the Sessions Judge, Ballia, concerned for information and compliance. Compliance report be sent to this Court in two months.