State of Punjab vs Baldev Krishan

A.D. Koshal, J.—This petition by the State of Punjab for revision of the order dated the 13th of October, 1971, of the learned Session Judge, Gurdaspur, has arisen thus. The respondent was convicted of an offence u/s 409 of the Indian Penal Code for committing breach of trust on the 12th of February, 1969, in respect of a sum of Rs. 400/- which was entrusted to him in his capacity as Branch Post Master at village Bharyal, and was sentenced by the trial Magistrate to simple imprisonment till the rising of the Court and a fine of Rs. 200/-, the sentence in default of payment of fine being rigorous imprisonment for two months. The trial Magistrate showed leniency to the respondent in the matter of sentence because the latter had paid the amount with interest to the Inspector of Post offices when a demand in that connection was made on the 23rd of April, 1969. The respondent went up in appeal to the learned sessions Judge who, by the impugned order, maintained the conviction but set aside the sentence, giving the respondent the benefit of the provisions of section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act), and directing him to be released on his entering into a bond in the sum of Rs. 1,000/-, with one surety in the like amount undertaking to keep the peace and be of good behaviour for a period of one year.

The only contention raised by the learned counsel for the State Is that section 4 of the Act is in applicable to the facts of the case, and I fully agree with him. The relevant portion of that section is reproduced here for facility of reference :--

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, nctwithstaneing anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour :--

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It is quite clear that the section comes into play only in the case of a person who is found guilty of having committed an offence not punishable with death or imprisonment for life. In other words, if a person is found guilty of having committed an offence punishable with death or imprisonment for life the section would have no application. With this proposition learned counsel for the respondent also has no quarrel. He however, adopts the argument of the learned Sessions Judge that according to section 409 of the Indian Penal Code, a person guilty of an offence thereunder "shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine", so that the said offence is not "exclusively punishable with imprisonment for life", and, therefore, is "an offence not punishable with death or imprisonment for life". The argument is fallacious and wholly without substance. The offence described u/s 409 of the Indian Penal Code is certainly "punishable with imprisonment for life" within the meaning of section 4 of the Act. The word "punishable" means capable of being punished by law. If a statutory provisions creates an offence for which various punishments are provided including the punishment of imprisonment for life, the offence would be punishable with imprisonment for life not withstanding the other punishments provided therefore because it would be capable of being visited with that punishment whether or not any other punishment is also awardable for it. As it is, I am fortified in this view by the dictum in Som Nath Puri Vs. The State of Rajasthan, , in which P. Jaganmohan Reddy, J., who delivered the judgment of the Court, repelled a contention similar to the one raised before me by learned counsel for the respondent, with the following observations :--

On behalf of the appellant it was urged before the High Court that as the appellant had to face a trial extending over more than 3 years incurring enormous expenses for coming to and fro from Chandigarh where he was practising law and was also in jail for some time, the benefit of the Probation of Offenders Act should be given to him. This contention was rejected because the provisions of that Act were inapplicable in view of his conviction u/s 409, I.P.C. As the offence of criminal breach of trust u/s 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life.

In this view of the matter, that part of the impugned order under which the sentence awarded to the respondent was substituted by a direction u/s 4 of the Act cannot be maintained and it must be held that the respondeat was liable to be sentenced in consequence of the conviction.

The respondent has already undergone the sentence of imprisonment awarded to him but has not paid the fine imposed upon him by the trial Court and his learned counsel contends that in the circumstances of the case the fine should be remitted and I am inclined to agree with him. The embezzlement, as stated earlier, was of a temporary character and the respondent paid back the amount in respect of which he committed breach of trust, alongwith interest, when a demand was made in that behalf. He also executed a bond in compliance with the direction given by the learned Session Judge and albeit the direction has been found not to be in accordance with law, the bond has been in force for the full period of one year above-mentioned. These appear to be enough reasons for the fine to be remitted.

In the result I accept the petition, set aside the order of the learned Sessions Judge and substitute therefor that of the trial Court with the modification that the sentence awarded to the respondent shall be only the imprisonment already undergone by him.