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Tetar Gope v. Ganauri Gope And Others Opposite Party.
Factual and Procedural Background
This application in revision challenges an appellate order of the Third Assistant Sessions Judge, Bihar Sharif, in an appeal from the judgment of the trying Magistrate. The trial Magistrate convicted two accused persons: both were convicted under section 448 of the Penal Code and sentenced to rigorous imprisonment for one month each; additionally, one accused was convicted under section 323 and sentenced to one month’s rigorous imprisonment, and the other under section 325 and sentenced to three months’ rigorous imprisonment. The Magistrate directed that the sentences run consecutively. On appeal, it was contended that the sentences were contrary to law in two respects, and the learned Judge remanded the matter to the trial Court without deciding the merits.
Legal Issues Presented
- Whether the consecutive sentences imposed by the Magistrate were invalid because the Magistrate did not specify the order in which the sentences under the different counts would run, having regard to section 35 of the Code of Criminal Procedure and relevant authority.
- Whether a sentence of fine is mandatory upon conviction under section 325 of the Penal Code, such that an imprisonment sentence without an accompanying fine would be illegal.
Arguments of the Parties
Arguments raised on appeal
- The sentences awarded by the Magistrate were contrary to law because the Magistrate, while ordering sentences under two sections to run consecutively, did not specify the order in which those sentences would run (relying on section 35 CrPC and Khohua Moran v. Emperor, AIR 1917 Cal 377).
- The sentence imposed under section 325 of the Penal Code was illegal because the Magistrate did not impose a sentence of fine in addition to imprisonment, the learned Judge reading the expression “and shall also be liable to fine” as making the imposition of a fine compulsory (relying on Ramchander Rai v. Ram Belas Tewari, AIR 1933 Pat 179).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Khohua Moran v. Emperor, AIR 1917 Cal 377 | Used to support the proposition that a direction as to the order in which consecutive sentences run may be necessary (relied upon in relation to section 35 CrPC). | The court distinguished the present case from the authority, observing that the cited decision shows the necessity of indicating order principally where one of the sentences is life imprisonment; it is immaterial for short custodial sentences which are consecutive whether one runs before the other. |
| Ramchander Rai v. Ram Belas Tewari, AIR 1933 Pat 179 | Relied upon by the learned Judge to contend that the phrase “and shall also be liable to fine” in section 325 makes imposition of a fine compulsory. | The court rejected that reading of the Patna decision, holding that the decision only stated that imprisonment is obligatory on conviction under section 325 and did not hold that imprisonment without a fine is illegal; thus the court declined to treat fine as mandatory in every conviction under section 325. |
Court's Reasoning and Analysis
The court examined both grounds on which the learned Judge ordered a remand and rejected them.
- On the omission to specify the order in which consecutive sentences should run:
- The court held that it was immaterial which of the short terms of rigorous imprisonment (one month or three months) ran first; the lack of specification under section 35 CrPC did not render the sentences illegal.
- The court explained that the authority relied upon shows a direction as to order is necessary in cases where one sentence is life imprisonment, but not where short consecutive custodial sentences are involved.
- The court further observed that even if a direction under section 35 had been desirable, the appellate court itself could have given the direction instead of remanding the matter to the trial Court.
- On the contention that a fine is mandatory under section 325:
- The court held that the learned Judge misread the Patna decision; that decision only established that imprisonment is obligatory on conviction under section 325 and did not state that a fine must necessarily accompany imprisonment.
- The court analyzed the phrase “shall also be liable to fine,” noting its occurrence in several Penal Code provisions (sections such as 302, 395 (sic) and 409) and explaining that the phrase denotes a liability to fine, not an absolute mandate to impose one in every conviction.
- The court gave the statutory construction that where the legislature makes imprisonment compulsory, it nevertheless leaves discretion to the court to impose a fine in appropriate cases in addition to the obligatory imprisonment.
- Conclusion on remand:
- Because both grounds were found unsustainable, the court held the remand order was unjustified.
- The court set aside the learned Judge’s order of remand and directed that the appeal be reheard and disposed of according to law by the lower appellate Court before a judge other than Shri Bageshwari Prasad Griyagey.
Holding and Implications
Holding: The court set aside the order of remand made by the learned Judge and directed that the case be sent back to the lower appellate Court for rehearing and disposal in accordance with law; the appeal is to be posted before a judge other than Shri Bageshwari Prasad Griyagey. The order of remand is expressly set aside.
Implications: The direct effect is that the appellate remand is vacated and the appeal must be reheard by the lower appellate Court before a different judge. The opinion does not purport to establish a broader precedent beyond its application to the facts before the court; it construes the meaning of the phrase “shall also be liable to fine” in s.325 (and similar provisions) as signifying liability rather than a mandatory imposition of fine in every conviction, and limits the necessity of specifying the order of consecutive sentences under s.35 CrPC to contexts where significant distinctions (such as a sentence of life imprisonment) make the order material.
1. This application in revision is directed against the appellate order of the Third Assistant Sessions Judge of Bihar sharif in an appeal from the judgment of the trying Magistrate convicting the two accused persons as follows. Both the accused persons were convicted under section 448 of the Penal Code and awarded a sentence of rigorous imprisonment for one month each. Besides, one of them was convicted and sentenced to undergo rigorous imprisonment for one month under section 323 while the other was convicted and sentenced to undergo rigorous imprisonment for three months under section 325 of the Code; The learned Magistrate, further, directed that, in the case of both the accused persons, the sentences imposed upon them would run consecutively.
2. In appeal, a point was raised before the learned Judge to the effect that the sentences awarded by the Magistrate were contrary to law, at least, in two respects. This contention found favour with the learned Judge, who held, firstly, that the order was had inasmuch as, while making the sentences under the two sections to run consecutively, the learned Magistrate did not specify the order in which the sentences under the two counts would run.
3. In support of this view, the learned Judge relied upon the provisions of section 35 of the Code of Criminal Procedure and a decision of the Calcutta High Court in Khohua Moran v. Emperor, AIR 1917 Cal 377. Secondly, the learned Judge held that the sentence imposed upon accused Harkhnandan Prasad under section 325 of the Penal Code was illegal inasmuch as no sentence of fine in addition to the sentence of imprisonment had been imposed upon him by the learned Magistrate. In support of this view, the learned Judge laid stress upon the expression “and shall also be liable to fine” occurring in the latter part of section 325 of the Penal Code. The learned Judge took the view that the meaning of this expression was that the imposition of a sentence of fine in addition to the sentence of imprisonment was compulsory in case of conviction, under that section and, in support of this view, the learned Judge relied upon a decision of this Court in Ramchander Rai v. Ram Belas Tewari, AIR 1933 Pat 179 (1).
4. Since the learned Judge had decided to send the case back to the trial Court on remand, he did not enter into the discussion of the case on merits.
5. In my opinion, the order of the learned Judge cannot be supported. The consecutive sentences imposed upon the accused persons should not have been held to be illegal merely on the ground that the trying magistrate did not indicate the precise order in which the two sentences were to run. It was wholly immaterial whether the sentence under Section 448 was to run first or the sentence under Section 323 or under Section 325 was to run first. From the decision relied upon by the learned Judge himself, it will be clear that a direction as to the order in which the two consecutive sentences should run is necessary in cases where one of the sentences is a sentence of life imprisonment; but, where a sentence of one month's rigorous imprisonment is ordered to run consecutively with a sentence of one month's or three months' rigorous imprisonment under another section, it is wholly immaterial which sentence should run first. The failure of the learned Magistrate to indicate the order under section 35 of the Code of Criminal Procedure was, therefore, of no consequence. In any event, it could not justify an order of remand by the appellate Court because, even as the appellate Court, it was open to the learned Assistant Sessions Judge to have given the direction as to the order in which the sentences were to run, if it was at all necessary.
6. The learned Judge was also in error in holding that a sentence of fine is imperative upon a conviction under S. 325 of the Penal Code. No such view was taken in the Patna decision upon which the learned Judge has relied. That decision has merely stated that a sentence of imprisonment is obligatory upon a conviction under section 325 and it does not say that such a sentence is illegal unless there is also a sentence of fine. The expression “shall also be liable to fine” is to be found not merely in section 325; but the same expression is to be also found in several other sections of the Penal Code, such as Ss. 302, 395 (sic) and 409. It is impossible to hold that, where a Judge passes a sentence of death under section 302, the sentence would be illegal unless it was also accompanied with a sentence of fine. The true meaning of the expression “shall also be liable to fine” is that there is a liability to fine not that a sentence of fine must be imposed in every case of conviction under such section. Such an expression has been used in the Penal Code only in connection with those offences where the legislature has provided that a sentence of imprisonment is compulsory. In regard to such offences, the legislature has left a discretion in the Court to impose also a sentence of fine in appropriate cases in addition to the imposition of a sentence of imprisonment which alone is obligatory.
7. In my opinion, the learned Judge was not at all justified in making an order of remand in the present case. I must, therefore, set aside the order of the learned Judge, and I send the case back to the lower appellate Court for rehearing of the appeal and for its disposal in accordance with law. The learned Sessions Judge will arrange to have the appeal posted for hearing before a judge other than Shri Bageshwari Prasad Griyagey.
AGJ/D.V.C
8. Order of remand set aside.
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