Decided on February 23,1967

STATE Respondents


- (1.) NARAYAN Singh, a truck driver, was convicted by the Munsiff-Magistrate, bharatpur under Section 338 of the Indian Penal Code to six months' rigorous imprisonment. On appeal the learned Sessions Judge, Bharatpur mentioned the conviction but altered the sentence to one month's rigorous imprisonment and to pay a fine of Rs. 200 and in default of the payment of fine to undergo 2 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.) SECTION 423 (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 finding, alter the nature of the sentence, but, subject to the provisions of sentence 106, Sub-section (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 Court in bhakthavatsalu Naidu v. Emperor, (1907) ILR 30 Mad 103 (FB ). The learned judges 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 Section 423 of the Code of Criminal Procedure. In the case before the learned Judges the appellate court had reduced the sentence of one month to 5 days but had imposed in addition thereto a fine and in default of the payment of fine to 2 weeks' imprisonment. It was held that the appellate court could do it without violating the provisions of Section 423 Cr. P. C. The reasoning of the Madras case appealed to Coldstream, J. in Barkhandi v. Emperor, AIR 1931 Lah 159 (1) 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 Cornish, JJ. of the Madras High Court in Subba Goundan v. Emperor, AIR 1930 Mad 193 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 v. King-Emperor, AIR 1949 Nag 140 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 v. Emperor, AIR 1937 Lah 195 -- Din Mohmmad J. adopted the view taken in Subba goun-den's case, AIR 1930 Mad 193. Same is the view expressed in a recent judgment of the High Court of Andhra Pradesh in Mahadoo v. State of Hyderabad, air 1953 Hyd. 303 where ILR 30 Mad 103 (EB), AIR 1931 Lah 159 (1) and AIR 1949 Nag 140 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 v. Chagan Jagannath, (1899) ILR 23 Bom 439 wherein Parsons and ranade 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. Saluja's 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 awful 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 Kirpa Ram v. Emperor, 16 Cri LJ 603 = (AIR 1914 Lah 539 (1) ). The learned Judges noticed this aspect of the matter in the following words, - "no doubt in some cases an alteration of this kind might be equivalant 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 King-Emperor v. Sagwa, (1901) ILR 23 All 497 = 1901 All wn 176, the fine can, under Section 70. Indian Penal Code, be levied even after the imprisonment awarded in default has been undergone, such imprisonment not being a discharge of the fine. ";

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