State Of Uttarakhand vs Sameem & Others

Alok Singh, J

Present Government Appeal has been filed by the State-appellant against the judgment and order dated 19.05.2005 passed by the Additional Sessions Judge/FTC-VI, District Dehradun in Sessions Trial No.108/2002, whereby respondents-accused (Sameen, Vinod and Rajpal) were acquitted for the offences punishable under Sections 147, 148 & 336 IPC. However, they were convicted under Section 147 & 308 IPC, but, they were given benefit of First Offenders Act and instead of imprisonment, each of the respondents were directed to pay fine of Rs.500/- under Section 147 IPC and Rs.2000/- each under Section 308 IPC and in case of default of payment of fine, they were directed to undergo 15 days rigorous imprisonment and three months under Section 308 IPC.

Heard Mr. A. K. Sah, A.G.A. with Ms. Geeta Parihar, Brief Holder for the State/appellant and Mr. Ramji Srivastava, Advocate with Mr. Shankar, Advocate for the respondents-accused, and also perused the record carefully.

The moot question for consideration in the present appeal under Section 377 of Code of Criminal Procedure filed by the State is "whether the sentence passed by Trial Court is inadequate and is not commensurate with the nature of offence.

For ready reference, Section 377 of Cr.P.C. is reproduced below:

"377. Appeal by the State Government against sentence-(1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present [an appeal to the High Court against the sentence on the ground of its inadequacy- (a) to the Court of session, if the sentence is passed by the Magistrate; and (b) to the High Court , if the sentence is passed by any other Court.

(2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (a) to the Court of session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other Court. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, [the Court of Session or, as the case may be, the High Court] shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."

Section 377 of Cr.P.C. postulates the conditions that State Government may direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. Therefore, the present appeal is maintainable.

Learned A.G.A. for the State submits that the trial court has committed a manifest error in not awarding adequate sentence under Sections 147 & 308 IPC; the punishment provided under section 308 IPC is up to seven years with or without fine; and Section 3 of the U.P. First Offenders' Probation Act, 1938 specifically provides that in a case in which a person is found guilty of the offences of theft, dishonesty, misappropriation or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years imprisonment, the Court can release the offender after admonition instead of sentencing him to any punishment.

The punishment provided under Section 147 IPC is up to two years and the punishment provided under Section 308 IPC is up to seven years with or without fine. Perusal of Section 3 of the U.P. First Offenders' Probation Act reveals that the court can not release an offender after admonition if the punishment for the alleged offence is more than two years imprisonment. The offence punishable under Section 308 IPC does not fall within the ambit of Section 3 of the U.P. First Offenders' Probation Act. Therefore, this Court is of the considered view that the trial court has committed a manifest error in not awarding adequate sentence for the offence under Section 308 IPC.

In view of above, this Court is of the opinion that the sentence for the offence under Section 308 IPC awarded by the trial court to the respondents-accused is inadequate and is not commensurate with the nature of offence. Since this Court is of the opinion that before passing the order on the sentence of imprisonment against the accused, a reasonable opportunity of showing cause on the proposed action for the sentence of imprisonment should be given to the respondents-accused, hence, the matter should be remitted to the trial court to pass a suitable sentence of imprisonment for the offence under Section 308 IPC, after affording them a reasonable opportunity of hearing.

The appeal is accordingly allowed. The matter is remanded back to the trial court to pass a suitable sentence of imprisonment for the offence under Section 308 IPC. Respondents-accused are directed to surrender before the trial court on 30.04.2019, failing which learned trial court is directed to take necessary steps to get them arrested for serving the sentence of imprisonment, if any.

Let a copy of this judgment alongwith lower court record be sent to the Court below for ensuring compliance of this order.