The State of Karnataka vs Mohammed Sharif

This Criminal Revision Petition is filed under Sections 401, 397 and 482, Cr.P.C. by the State against the order dated 7-11-1989 passed by the Additional Sessions Judge, Gulbarga in Cr.A. No. 7/88 confirming the order passed by the First Additional J.M.F.C., Gulbarga in C.C. No. 2540/84.

Though served the respondent has remained absent in this case. I have heard the learned Government Pleader for the State and perused the records of the case.

The respondent was prosecuted for the offencee punishable u/s 326, I.P.C. in C.C. No. 2540/84 on the file of the First Additional J.M.F.C., Gulbarga. On the basis of the evidence of the prosecution the learned First Additional J.M.F.C., Gulbarga held the respondent guilty of the offence punishable u/s 326, IPC and he released the respondent on the probation of a good conduct u/s 4 of the Probation of Offenders Act (hereinafter referred to as the Act).

The State being aggrieved by the order of the learned J.M.F.C., Gulbarga giving the benefit of the Section 4 of the Act to the respondent preferred Cr.A. No. 7/88 in the Court of the Sessions Judge, Gulbarga. The appeal came to be heard by the Additional Sessions Judge, Gulbarga. He dismissed the appeal filed by the State confirming the judgment of the trial Court. The State is aggrieved by the judgment of both the Courts below giving the benefit of the Section 4 of the Act to the respondent and has preferred this appeal.

Section 4 of the Act lays down that the Court has got powers to release certain offenders on probation of good conduct if they were found guilty of having committed an offence not punishable with death or imprisonment for life. If a person is found guilty of having committed the offence punishable with death or imprisonment for life, the court cannot give him the benefit of Section 4 of the Act. The offence u/s 326, IPC is punishable with death or imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and also punishable with fine. Now the question before this Court is whether the benefit of Section 4 of the Act can be given to the respondent in view of the fact that the offence u/s 326, IPC is punishable with death or imprisonment for life or with imprisonment for either description for a term which may extend to 10 years and is also punishable with fine. In the case of Shivcharan Lal Vs. The State, the question whether the benefit of Section 4 of the Act can be extended to an accused who has been convicted for the offence punishable u/s 326, IPC has been discussed. His Lordship of the Rajasthan High Court has held as follows at page Cri LJ 1633

"Two alternative terms of the imprisonment are prescribed by the Penal Code. Both u/s 4 and Section 6 of the word employed is ''punishable''. In my opinion this word has reference to the maximum punishment to which the offender is liable to be punished."

In the case of State Vs. Sheo Shanker, the Allahabad High Court has interpreted the phrase punishable with death or transportation for life as follows Cri LJ 660

"The words ''punishable with death or transportation for life'' cannot mean ''punishable with death or in the alternative with transportation for life''. The plain meaning of the words ''an offence not punishable with death or transportation for life'' is ''an offence not punishable with death or an offence not punishable with transportation for life''.

Death or transportation for life must not be a punishment that can be legally inflicted for the offence; if death can be inflicted or if transportation for life can be inflicted, it is not ''an offence not punishable with death or transportation for life'' regardless of whether any other punishment can be inflicted either in the alternative or in addition to the punishment of death or transportation for life, as the case may be. Since the offence of S. 409, Penal Code is punishable with transportation for life or imprisonment and fine the accused could not be released on probation of good conduct."

The offence u/s 326, IPC is punishable with death or imprisonment for life or imprisonment for 10 years and also punishable with fine. The phrase used in section 4 of the Act is "not punishable with death or imprisonment for life." It cannot be read conjunctively so as to mean that it provides alternative sentence for an offence. But it must be read disjunctively. The expression "punishable" means "liable to punishment" i.e., the person who has contravened a penal provision will have to be punished. The punishment is obligatory. But the nature of the punishment has to be ascertained by consideration of the relevant provisions of criminal law and the circumstances of the case. The offence punishable with death or imprisonment for life means where death can be inflicted or the punishment of imprisonment for life can be inflicted. Where the Court has got powers to award the imprisonment for life either in addition to or in substitution of the punishment for life, such an offence will be an offence which is punishable with imprisonment for life, regardless of the fact where any other punishment is provided for in addition to or in substituted of the imprisonment for life. Hence, even though the offence u/s 326, IPC is punishable with death or imprisonment for life or imprisonment for 10 years etc. it is an offence punishable with imprisonment for life which is contemplated u/s 4 of the Act. Hence, both the Courts below were wrong in giving the benefit of Section 4 of the Act to the respondent. For the reasons discussed above, I proceed to pass the following order :

The Criminal Revision Petition is allowed. The orders of both the Courts below giving the benefit of Section 4 of the Act to the respondent is set aside and the case is remanded to the First Additional J.M.F.C., Gulbarga with a direction to hear the respondent and thereafter sentence him in accordance with law.

Revision allowed.