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2018 DIGILAW 2028 (RAJ)

Vidhyadhar Jat v. State of Rajasthan

2018-10-03

PANKAJ BHANDARI

body2018
JUDGMENT : Pankaj Bhandari, J. Petitioner has preferred this revision petition aggrieved by order dated 08.05.2018 passed by Additional Chief Judicial Magistrate, Jhunjhunu whereby petitioner was convicted for offence under Section 382 IPC and was sentence to three years Rigorous Imprisonment and fine of Rs. 5,000/- on non payment of fine, petitioner was to further undergo one month Simple Imprisonment and against judgment and order dated 31.07.2018 passed by Session Judge, Jhunjhunu whereby appeal preferred by the petitioner was rejected. However, sentence was reduced from three years to one month and fine was increased from Rs. 5,000/- to Rs. 50,000/- and on non payment of fine, petitioner was to further undergo Rigorous Imprisonment of six months. 2. It is contended by counsel for the petitioner that as per Section 386 Cr.P.C. Appellate Court cannot enhance the sentence without providing an opportunity of showing cause against such enhancement. It is also contended that the term sentence includes sentence in lieu of non-payment of fine. Hence, the same would fall within the purview of the proviso to Section 386 of Cr.P.C. 3. Counsel for the petitioner has placed reliance of “Sahab Singh v. State of Haryana” 1990 AIR 1188 wherein judgment of the High Court for enhancing the fine was set aside and the order of sentence passed by the trial Court was confirmed. 4. Learned Public Prosecutor has opposed the revision petition. His contention is that there is no restriction on the power of the Appellate Court to impose fine and in awarding sentence in default. It is contended that the sentence was reduced from three years to one month and in default of payment of fine, petitioner was to further undergo six months Rigorous Imprisonment. Hence, the total sentence including sentence in default of fine, if clubbed together, is seven months in total which is less than the original sentence passed by the Magistrate Court. 5. I have considered the contentions. 6. The moot question for determination is that whether the term ‘sentence’ includes sentence in lieu of payment of fine. 7. To determine the above question it would be proper to refer following Sections of IPC and Cr.P.C. 53. 5. I have considered the contentions. 6. The moot question for determination is that whether the term ‘sentence’ includes sentence in lieu of payment of fine. 7. To determine the above question it would be proper to refer following Sections of IPC and Cr.P.C. 53. Punishment — The punishments to which offenders are liable under the provisions of this Code are— First — Death; Secondly — Imprisonment for life; Fourthly — Imprisonment, which is of two descriptions, namely: — (1) Rigorous, that is, with hard labour; (2) Simple; Fifthly — Forfeiture of property; Sixthly — Fine. 30. Sentence 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. 386. (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. 386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal u/Sec. 377 or Sec. 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may — (a) in an appeal from an order or acquittal, ……………………………………….reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction—(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same—(c) in an appeal for enhancement of sentence— (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 8. From bare reading of section 53 of I.P.C. it is inferred that though fine is included in punishment but the same is dealt separately under the Indian Penal Code. 9. Sentence of imprisonment in default of fine is dealt with in Section 30 of Cr.P.C. Sub clause (2) of Section 30 makes it clear that the imprisonment awarded under Section 30 may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29. The maximum sentence which a Magistrate may award under Sub-clause 2 of Section 29 is three years meaning thereby that in addition to the substantive sentence of three years magistrate can further award imprisonment on non-payment of fine along with the substantive sentence. 10. The contention of the counsel of petitioner that since the term sentence includes sentence in lieu of non-payment of fine, the same would fall within the purview of the proviso to Section 386 of Cr.P.C. cannot be accepted as I am of the considered view that sentence in default of payment of fine is not a sentence as contemplated is Sub clause (iii) of clause (b) of Sec. 386 and the Appellate Court is entitled to enhance the fine and sentence in default of payment of fine and proviso to Section 386 is not attracted. 11. I find support from the judgment of Apex Court in “Shanti Lal v. State of M.P.” (2007) 11 SCC 243 and similar view which was taken by the Apex court in the recent judgment “Sharad Hiru Kolambe v. The State of Maharashtra” in Criminal Appeal No. 1209/2018 decided on 20.09.2018., wherein it was held that the term of imprisonment in default of payment of fine is not a sentence, it is a penalty which a person incurs on account of nonpayment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. In strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence. Similar view has been taken by Apex Court in “Shahejadkhan Mahebubkhan Pathan v. State of Gujarat” 2013 (1) SCC 570 . 12. In “Palaniappa Gounder v. State of Tamil Nadu” (1977) 2 SCC 634 . Appellant was convicted by the Principal Sessions Judge, and was sentenced to death. The High Court of Madras upheld the conviction but reduced the sentence from death to life imprisonment. But while reducing the sentence the Court imposed of fine of Rs. 20,000/-. The Apex Court held that Courts have power to impose a sentence of fine and if fine is imposed on an offender, it cannot be challenged as contrary to law. 13. In view of the above, no ground is made out in this revision petition. The revision petition is dismissed. 14. The application for suspension of sentence stands disposed.