Narayan Singh v. State — 1967 DIGILAW 57 (RAJ)

BERI, J.—Narayan Singh, a truck driver, was convicted by the Munsif-Magis-trate, Bharatpur under sec. 539 of the Indian Penal Code to six months rigorous imprisonment. On appeal the learned Sessions Judge, Bharatpur maintained the conviction but altered the sentence to one months rigorous imprisonment and to pay a fine of Rs. 200/- and in default of the payment of fine to undergo two months rigorous imprisonment. He has come up in revision before me. 2. The only point on which this revision application was admitted and which was urged before me is whether the alteration of the sentence by the learned Sessions Judge amounts to enhancement of punishment. 3. Sec. 425(1)(b), omitting the unnecessary part of it, reads as follows— "or (2) alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3) with or without such reduction and with or without altering the find ing, alter the nature of the sentence, but, subject to the provisions of sec. 100, sub-sec. (3), not so as to enhance the same." The short question which falls for consideration in this case is whether the alteration of sentence by the learned Sessions Judge amounts to enhancement or not. The controversy where substantive sentence is reduced and sentence of fine has been added or increased amounts to an enhancement of punishment or not has been the subject matter of several decisions of various High Courts. The leading case on the subject is a Full Bench decision of the Madras High Court in Bhakthavatsalu Naidu vs. Emperor(l). The learned Judge expressed the opinion that where the aggregate period of imprisonment awarded on appeal is to any extent less than the period of the original sentence, the fact that a fine is imposed by the appellate court is no enhancement of the sentence within the meaning of sec. 423 of the Code of Criminal Procedure. In the case before the learned Judge the appellate court had reduced the sentence of one month to five days but had imposed in addition thereto a fine and in default of the payment of fine 2 weeks imprisonment. It was held that the appellate court could do it without violating the provisions of sec. 423 Cr. In the case before the learned Judge the appellate court had reduced the sentence of one month to five days but had imposed in addition thereto a fine and in default of the payment of fine 2 weeks imprisonment. It was held that the appellate court could do it without violating the provisions of sec. 423 Cr. P.C. The reasoning of the Madras case appealed to Coldstream J. in Barkhandi vs. Emperor(2) who observed that when the aggregate period of imprisonment which the accused may have to undergo is to any extent less than the period of the original sentence, the fact that a fine is imposed by the appellate court would not in law be an enhancement of the sentence. A similar view was expressed by Waller and Curnish JJ. of the Madras High Court in Subba Goundan vs. Emperor(5) and curiously enough without any reference to the Full Bench decision of their own Court. Same was the answer of Hemeon J. in Shivdas Singh Ajodhya Singh vs. King-Emperor(4) where the sentence of six months imprisonment and a fine of Rs. 100/- or in default thereof further imprisonment for period of six months awarded by the trial Court on an appeal was reduced to the sentence already undergone but the fine was increased to Rs. 600/- or in default to a further term of six months, The learned Judge observed that it was no enhancement of sentence. In another decision of the Lahore High Court Prabhu Dayal vs. Emperor(5) Din Mohammad J. adopted the view taken in Subba Goundans case(3). Same is the view expressed in a recent judgment of the High Court of Andhra Pradesh in Mahadeo vs. State of Hyderabad(6) where 50 Madras, 1931 Lahore and 1949 Nagpur cases were followed. There is one more case to which reference may be made. It is earlier in point of time to the Full Bench Madras case but is equally enlightening. It is Queen Empress vs. Chagan Jagannath(7) wherein Parsons and Barado JJ. considered a case where an accused was convicted of criminal breach of trust and sentenced to nine months rigorous imprisonment but on appeal although the conviction was upheld the sentence was altered to one of six months rigorous imprisonment and a fine of Rs. It is Queen Empress vs. Chagan Jagannath(7) wherein Parsons and Barado JJ. considered a case where an accused was convicted of criminal breach of trust and sentenced to nine months rigorous imprisonment but on appeal although the conviction was upheld the sentence was altered to one of six months rigorous imprisonment and a fine of Rs. 1,000/- was added and in default of payment of fine the accused was to undergo a further term of three months rigorous imprisonment. It was held that the alteration of sentence did not amount to enhancement. This authority has also been followed in some of the cases referred to above. Mr. Salujas argument is that where a sentence of fine is imposed and the punishment provided in default of payment of fine is undergone the liability to pay the fine still persists and, therefore, the accused suffers from an aweful anxiety which adds to the totality of his punishment. It, therefore, amounts to an enhancement of sentence. In support of his contention he relied on Kirparam vs. Emperor(8). The learned Judge noticed this aspect of the matter in the following words— "No doubt in some cases an alteration of this kind might be equivalent to an enhancement. The convict might be a poor man to whom the order of fine would be a heavier punishment than the imprisonment, and, as is pointed out in Emperor vs. Sagwn (23 A. 497: AWN 1961 176), the fine can, under sec. 70, Indian Penal Code, believed,even after the imprisonment awarded in default has been undergone, such imprisonment not being a discharge of the fine." 4. Fine is one of the modes of punishment envisaged in sec. 53 of the Indian Penal Code. It is correct that it is a punishment in pocket and its impact is directly dependant on the condition of the purse of the person on whom it is imposed. The authors of the Code have in one of their notes eloquently put it thus. "In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances of the offender. The mulct which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich Zamindar." These considerations no doubt should weigh at the time of initial imposition of penalty but in considering the provisions of sec. 423 Cr. The mulct which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich Zamindar." These considerations no doubt should weigh at the time of initial imposition of penalty but in considering the provisions of sec. 423 Cr. P. C. the ordinary rule, subject to certain exceptions, to my mind is that if the substantive sentence of imprisonment and the sentence imposed in default of payment of fine when added do not exceed the original sentence | awarded to the appellant then the sentence cannot be said to have been enhanced. My reasons for this view are that 16, Criminal Law Journal case was decided on 12th December, 1914. In 1925 sec. 586 of the Code of Criminal Procedure had an amendment, namely, "Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so." The result of this provision evidently is that it is not as a matter of routine that where fine has not been paid and sentence in d fault thereof his already been undergone that a court of law would levy the recovery of the penalty. Although the provisions of S. 70 of the IPC provide that undergoing the sentence in default of payment of fine is no discharge of that liability and that such liability persists for a period of six years but its recovery can be made for special reasons as I have said in my judgment—Hari Singh vs. State (9) should be related to the failure to pay the fine. Therefore the case reported in 16, Criminal Law Journal is distinguishable on account of amendment in the provisions of sec. 386 and therefore it would be in exceptional cases that fine would be recovered from a victim who has already undergone the term of imprisonment in default of the payment of fine. Ordinarily, therefore, the view taken in 30 Madras Full Bench case seems to be a fairly good guide in matters such as these. 386 and therefore it would be in exceptional cases that fine would be recovered from a victim who has already undergone the term of imprisonment in default of the payment of fine. Ordinarily, therefore, the view taken in 30 Madras Full Bench case seems to be a fairly good guide in matters such as these. Tested on this touchstone in the case before me the original sentence of six months rigorous imprisonment has been reduced to one months rigorous imprisonment and the only additional punishment is of fine of Rs. 200/- and in default of payment a further two months rigorous imprisonment. The totality of the sentence before me thus is three months rigorous imprisonment in the event of the accused not paying fine whereas trial Court had awarded six months rigorous imprisonment. I am, therefore, not prepared to hold that this is a case of enhancement of punishment hit by the restriction contained in sec. 423 of the Code of Criminal Procedure. 5. The result is that this revision application fails and is dismissed. 6. The learned counsel prays for leave to appeal to the Supreme Court. I am afraid this is not a case which I would certify as a fit one for leave to appeal to the Supreme Court. Leave is refused.