STATE OF GUJARAT Vs. KANBI KALYAN JIVA
LAWS(GJH)-1979-11-27
HIGH COURT OF GUJARAT
Decided on November 30,1979

STATE OF GUJARAT Appellant
VERSUS
KANBI KALYAN JIVA Respondents

JUDGEMENT

A.N.SURTI - (1.) In view of what has been stated above the learned Magistrate rightly held that the respondent-accused was guilty for commission of an offence punishable under sec. 326 of the Indian Penal Code. But it was rather unfortunate that the learned trial Magistrate awarded only 1 1/2 months R. I. to the accused and for having directed him to pay a fine of Rs. 200.00 in default to suffer R. I. for 15 days for commission of an offence under sec. 326 I. P. C. The sentence passed by the learned trial Magistrate is manifestly unjust improper and the same has also resulted into miscarriage of justice. It is rather unfortunate that the State did not file an application to this court for enhancement of sentence passed by the learned Magistrate at a proper time. The State also for the reas- ons best known to the State was also satisfied at the patent inadequacy of the sentence passed by the learned Magistrate. The State was only aggrieved by the order passed by the learned Sessions Judge when he gave to the accused the benefit of the Probation of Offenders Act. It is only at that stage that the State has filed an appeal for passing proper sentence on the accused. Under the aforesaid circumstances we are incli- ned to allow the appeal filed by the State and hold that the respondent- accused is guilty of an offence punishable under sec. 326 of the Indian Penal Code.
(2.) On the question of sentence we may say that normally this court is reluctant to interfere with the discretionary order as to the sen- tence passed by our subordinate judiciary but in proper and fit cases this court must interfere with the sentence awarded by the lower courts when the same has resulted into patent miscarriage of justice this court is bound to pass just order as to sentence. As a result of commission of any crime just and proper sentence is a must otherwise the whole judi- cial machinery will be ridiculed. In the instant case we were shocked to note that though the learned Magistrate found the accused guilty of an offence punishable under sec. 326 of the Indian Penal Code he awarded only six weeks R. I. to the accused for commission of the aforesaid offe- nce; but that shock was further aggravated when the State did not choose to file an application for enhancement of sentence on the ground of inadequacy of sentence awarded by the learned trial Magistrate to the accused. The State felt only aggrieved when the learned Sessions Judge gave to the accused the benefit of Probation of Offenders Act by conver- ting the offence from one under sec. 326 I. P. C. to one under sec. 324 I. P. C. It is equally deplorable that such a perverse device was adopted by the learned Sessions Judge to give relief to the offender in the facts and circumstances of the present case.
(3.) But in the instant case can we issue a notice of enhancement at this stage for enhancing the sentence passed by the learned trial Magis- trate ? In the instant case we are told that the offence has taken place in the year 1975. We are also told that during the period of Probation which has already expired the respondent has behaved as a good citizen and has not committed any offence. In this view of the matter and since the offence was committed in the year 1975 and as there was no complaint from the Probation Officer in regard to the conduct of the accused during the period of probation which is already over; we do not think it nece- ssary to issue on the accused any notice of enhancement of sentence passed by the learned trial Magistrate.;


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