Tetar Gope vs Ganauri Gope and Others

This Judgment has been overruled by : Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, AIR 1999 SC 2881 : (1999) 66 ECC 40 : (1999) 84 ECR 29 : (1999) 112 ELT 772 : (1999) 5 JT 366 : (2000) 1 LLJ 728 : (1999) 4 SCALE 480 : (1999) 7 SCC 409 : (1999) SCC(L&S) 1299 : (1999) 1 SCR 87 Supp : (2000) 1 SLJ 291 : (1999) AIRSCW 2779 : (1999) 6 Supreme 523

G.N. Prasad, J.—This application in revision is directed against the appellate order of the Third Assistant Sessions Judge of Biharsharif in an appeal from the judgment of the trying Magistrate convicting the two accused persons as follows Both the accused persons were convicted u/s 448 of the Penal Code and awarded a sentence of rigorous imprisonment for one month each. Besides, one of them was convicted and sentenced to undergo rigorous imprisonment for one month u/s 323 while the other was convicted and sentenced to undergo rigorous imprisonment for three months u/s 325 of the Code. The learned Magistrate, further, directed that, in the case of both the accused persons, the sentences imposed upon them would run consecutively.

In appeal, a point was raised before the learned Judge to the effect that the sentences awarded by the Magistrate were contrary to law, at least, in two respects. This contention found favour with the learned Judge, who held, firstly, that the order was bad inasmuch as, while making the sentences under the two sections to run consecutively, the learned Magistrate did not specify the order in which the sentences under the two counts would run. In support of this view, the learned Judge relied upon the provisions of Section 35 of the Code of Criminal Procedure and a decision of the Calcutta High Court in Khohna-Moran v. Emperor AIR 1917 Cal 377 Secondly, the learned Judge held that the sentence imposed upon accused Harkhnan-dan Prasad u/s 325 of the Penal Code was illegal inasmuch as no sentence of fine in addition to the sentence of imprisonment had been imposed upon him by the learned Magistrate. In support of this view, the learned Judge laid stress upon the expression "and shall also be liable to fine" occurring in the latter part of Section 325 of the Penal Code. The learned Judge took the view that the meaning of this expression was that the imposition of a sentence of fine in addition to the sentence of imprisonment was compulsory in case of conviction, under that section and, in support of this view, the learned Judge relied upon a decision of this Court in Dulari Koeri Vs. Fauzdar Khan and Another,

Since the learned Judge had decided to send the case back to the trial Court on remand, he did not enter into the discussion of the case on merits.

In my opinion, the order of the learned Judge cannot be supported. The consecutive sentences imposed upon the accused persons should not have been held to be illegal merely on the ground that the trying magistrate did not indicate the precise order in which the two sentences were to run. It was wholly immaterial whether the sentence u/s 448 was to run first or the sentence u/s 323 or u/s 325 was to run first. From the decision relied upon by the learned Judge himself, it will be clear that a direction as to the order in which the two consecutive sentences should run is necessary in cases where one of the sentences is a sentence of life imprisonment; but, where a sentence of one month''s rigorous imprisonment is ordered to run consecutively with a sentence of one month''s or three months'' rigorous imprisonment under another section, it is wholly immaterial which sentence should run first. The failure of the learned Magistrate to indicate the order u/s 35 of the Code of Criminal Procedure was, therefore, of no consequence. In any event, it could not justify an order of remand by the appellate Court because, even as the appellate Court, it was open to the learned Assistant Sessions Judge to have given the direction as to the order in which the sentences were to run, if it was at all necessary.

The learned Judge was also in error in holding that a sentence of fine is imperative upon a conviction u/s 325 of the Penal Code. No such view was taken in the Patna decision upon which the learned Judge has relied That decision has merely stated that a sentence of imprisonment is obligatory upon a conviction u/s 325 and it does not say that such a sentence is illegal unless there is also a sentence of fine. The expression "shall also be liable to fine'' is to be found not merely in Section 325; but the same expression is to be also found in several other sections of the Penal Code, such as Sections 302, 395 (sic) and 409. It is impossible to hold that, where a Judge passes a sentence of death u/s 302, the sentence would be illegal unless it was also accompanied with a sentence of fine. The true meaning of the expression "shall also be liable to fine'' is that there is a liability to fine not that a sentence of fine must be imposed in every case of conviction under such section. Such an expression has been used in the Penal Code only in connection with those offences where the legislature has provided that a sentence of imprisonment is compulsory. In regard to such offences, the legislature has left a discretion in the Court to impose also a sentence of fine in appropriate cases in addition to the imposition of a sentence of imprisonment which alone is obligatory.

In my opinion, the learned Judge was not at all justified in making an order of remand in the present case. I must, therefore, set aside the order of the learned Judge, and I send the case back to the lower appellate Court for rehearing of the appeal and for its disposal in accordance with law. The learned Sessions Judge will arrange to have the appeal posted for hearing before a judge other than Shri Bageshwari Prasad Griyagey.