Som Pal vs State Of U.P.
2018 Latest Caselaw 3760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											AFR
 

 
Court No. - 27
 

 
Case :- CRIMINAL APPEAL No. - 2113 of 2007
 

 
Appellant :- Som Pal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.D. Sharma,A.K. Sharma,Prabhat Pandey
 
Counsel for Respondent :- Government Advocate
 

 
Hon'ble Aniruddha Singh,J.

1. Heard Sri Prabhat Pandey, learned counsel for appellant Som Pal and learned AGA.

2. The appellant Som Pal alongwith other co-accused Gopal Biswas,Nathu Lal and Bachan Singh was convicted under section 468, 489-A, 489-C IPC and sentenced to 5 years' R.I. with fine of Rs. 8,000/-, 7 years' R.I. with fine of Rs.10,000/-, and 5 years' R.I. with fine of Rs.8000/-; in default of payment of fine, additional rigorous imprisonment for two years, three years and two years respectively vide judgment and order dated 31.1.2007 passed by Additional Sessions Judge Fast Track Court No.4, Pilibhit in S.T. No. 321/03 Case  Crime No. 353/2002 Police Station Mathotanda, District Pilibhit.

3. In compliance of orders dated 5.12.2017, 14.12.2017 and 8.1.2018, learned AGA submitted report of Senior Superintendent of Central Jail, Bareilly dated 20.12.2017 which is taken on record.

4. Learned counsel for the appellant submitted that under section 468 and 489-A IPC, fine with imprisonment is mandatory but under section 489-C IPC fine with imprisonment is not mandatory.

5. According to report of Senior Superintendent, Central Jail, Bareilly Som Pal son of Bansi Lal is languishing in jail  and he has served out 12 years in jail as on 20.12.2017.  It appears that due to  mistake, "all sentences to run concurrently" has been omitted  by the Court concerned. Therefore, the appellant  is languishing in jail for more than twelve years and Senior Superintendent of Jail has interpreted the sentence to run severely.  Hence, he has reported that he has not served out the sentence  awarded by the  Court.

6. It is very unfortunate that appellant has been convicted maximum punishment for seven years' rigorous imprisonment  but has been languishing in jail more than twelve years.

7. In this context section 71 of Indian Penal Code, 30 and 31 of Code of Criminal Procedure are relevant and are quoted below:-

Section 71 in The Indian Penal Code

71. Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his of­fences, unless it be so expressly provided. 1[Where anything is an offence falling within two or more sepa­rate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.] Illustrations

(a) A gives Z fifty strokes with a stick. Here A may have commit­ted the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.

(b) But if, while A is beating Z, Y interferes, and A intention­ally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.

Section 30 in The Code Of Criminal Procedure, 1973

30. Sentences of imprisonment in default of fine.

(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term-

(a) is not in excess of the powers of the Magistrate under section 29;

(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one- fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.

31. Sentences in cases of conviction of several offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860 ), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that-

(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

8. In the case of Kuma Maharana v. State , 1996 Cr.L.J 170(172) (Ori.) the Orissa High Court has held that the default term is not to exceed one fourth of the sentence which a Magistrate is empowered to impose. A sentence of one year default term imposed by a Magistrate is illegal.

9. It is made clear that according to report of Senior Superintendent of Jail, Bareilly the appellant has served out more than twelve years as on 20.12.2017.

10. It is clear from perusal of section 468 and 489-A IPC that fine with imprisonment is mandatory but under section 489-C IPC fine with imprisonment is not mandatory. In these circumstances, it would be proper in the interest of natural justice, that fine under Section 489-C IPC awarded by the Trial Court be set side. Thus, fine of Rs.8,000/- and additional imprisonment of two years in default of its payment under Section 489-C IPC are hereby set aside. Maximum sentence awarded to the appellant is seven years' R.I. and if imprisonment of two years and three years in case of default of fine under section 468 and 489-A IPC respectively are added to the maximum sentence, it would come to twelve years (7 +2+3). The appellant has already served out twelve years in jail as on 20.12.2017.

11. In these circumstances, since appellant has already served out more than twelve years sentence, entering into merit of the case would be futile exercise. Therefore, without entering into merit of the case as well as in the interest of natural justice on the point of sentence, the appellant be released immediately, if not wanted in any other case and if he has served out sentence for more than twelve years.

12 The appeal is partly allowed.

13. Office is directed to send copy of this order within 24 hours to the CJM, Pilibhit and District Judge, Pilibhit through e-mail, fax and speed post to ensure compliance. Compliance report be submitted within seven days to the High Court which shall be kept on record.

14. List on 27.11.2018.

Order Date :- 16.11.2018

P.P.