Allahabad High Court
Shishpal vs Mahendra Kumar Saini on 17 May, 2022
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- CRIMINAL REVISION No. - 1757 of 2001
Revisionist :- Shishpal
Opposite Party :- Mahendra Kumar Saini
Counsel for Revisionist :- P.K. Jain,Seema Pandey (A/C)
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Gautam Chowdhary,J.
Heard Ms. Seema Pandey, learned Amicus Curiae for the revisionist, learned A.G.A. and perused the material on record.
Present criminal revision has been filed against the judgment and order of conviction dated 02.07.2001 passed by learned Sessions Judge, Ghaziabad in Criminal Appeal No. 43 of 2000 (Shish Pal Vs. Mahehra Kumar Saini and another) whereby criminal appeal no. 43 of 2000 filed by the revisionist has been dismissed confirming the Judgement and order of conviction dated 12.09.2000 passed by learned Additional Chief Judicial Magistrate Hapur (Ghaziabad) in Case No. 1433 of 1994 (State Vs. Shishpal), whereby convicting the appellant under Section 279 I.P.C. to undergo simple imprisonment of one month along with fine of Rs. 1000/- under Section 337 I.P.C. to undergo simple imprisonment of one month along with fine of Rs. 500/-, under Section 427 I.P.C. to undergo simple imprisonment of one month along with fine of Rs. 3000/- and in default in payment of fine to further undergo additional imprisonment of on month.
Learned counsel for the revisionist contends that from the date of order of the learned Magistrate, more than 22 years have elapsed and therefore, sentence of punishment may be converted into fine. Learned counsel for the revisionist has relied upon the judgment of this Court reported in 2004 (49) ACC 539 in the matter of Majister @ Budhpal versus State of U.P. wherein this Court has taken note of the fact that 19 years have elapsed since the date of revision and the accused was on bail during the pendency of revision and therefore, sending the accused to jail after lapse of 17 years would be against humanitarian approach and therefore, liberty was given to avail the benefit of provisions of Section 433(d) Cr.P.C. and the imprisonment was converted into fine.
Paragraph 8, relevant part of paragraph-9 and paragraph 10 of the aforesaid judgment is quoted hereinunder:-
"8. Section 433 (d) aforesaid provides for commutation of sentence of simple imprisonment for fine by the appropriate Government. In the leading case of N. Sukumaran Nair v. Food Inspector, Mavelikara, the Supreme Court in such circumstances provided such relief as being permissible to an accused. Para 3 of the judgment is extracted below-
"The offence took place in the year 1984. The appellant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1000. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We therefore, direct the appellant to deposit in the Trial Court a sum of Rs. 6,000/- as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."
9. In the case of Maqbool Ahamed v. State of U.P.(supra), learned Single Judge of this Court relying upon the aforesaid N. Sukumaran Nair v. Food Inspector, Mavelikara, altered the sentence awarded in such a case of food adulteration to the accused to six months simple imprisonment and also directed the State Government that instead of sentence of actual imprisonment he would pay fine which shall be deposited within stipulated period and then he would move an application before the State Government which on receipt of such application shall formalize the matter under the provisions of section 433 (d) of the Code of Criminal Procedure.
10. In the case of Prem Chand v. State of U.P. (supra) and Roop Chand v. State of U.P. (supra), learned single Judge has also preferred to adopt the same view of the matter to provide benefit of alternative to the accused under Section 433(d) aforesaid for the purposes to avoid his further sufferance in jail, which in the circumstances of the aforesaid case was not justified."
Reduction of sentence, as awarded in such case under the prevention of Food Adulteration Act is permitted as has also been held by the Hon'ble Apex Court in the matter of Haripada Das v. State of W.B. and another reported in 1998 (9) SCC 678.
After hearing the learned counsel for the revisionist, learned A.G.A. and after perusing the judgment and order impugned as well as the averments contained in the present revision, this Court is of the opinion that as 22 years have elapsed since the date of revision and the revisionist has remained on bail during the pendency of revision, this Court thinks appropriate for commutation of sentence whereby more than two decades have gone by.
This Court, therefore, directs the revisionist to deposit before the concerned Chief Judicial Magistrate a sum of Rs. 5,000/- as fine in commutation of sentence of one month within a period of two months from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure.
Let a copy of this judgement be sent to the concerned Court for compliance.
Office is directed to transmit the record of trial Court as well as copy of the judgement to the Court below.
This Court appreciate the assistance rendered by Ms. Seema Pandey learned Amicus Curiae. The State Government is directed to pay Rs.5500/- as remuneration to Ms. Seema Pandey at the earliest.
With the aforesaid directions, present revision is finally disposed of.
Order Date :- 17.5.2022
S.Ali
