STATE OF MAHARASHTRA Vs. JUGININDER LAL

JUDGEMENT

(1.) In this appeal by special leave from a judgment of the High Court of Bombay the short point for consideration is whether it is obligatory upon the Court which convicts a person of an offence under S. 3 (1) of the Suppression of Immoral Trafic in Women and Girls Act. 1956 to pass a sentence of imprisonment where the conviction is, in respect of a first offence, for a term not less than one year and not merely to a sentence of fine. The Presidency Magistrate, Bombay, held the respondent guilty of an offence under S. 3 (1) of the Act for keeping a brothel or allowing the premises in his occupation to be used as a brothel and passed a sentence of fine of Rs. 1,500 but did not pass a sentence of imprisonment. The respondent was also found guilty of an offence under S. 4 (1) of the Act for living on the earning of prostitution and sentenced by him to pay a fine of Rs. 500. The respondent challenged his conviction in respect of each of the two offences as well as the sentences awarded to him. The High Court affirmed his conviction for these offences. The State preferred an application for revision before the High Court for enhancement of the sentences which was heard along with the appeal. It was contended on behalf of the State that it was obligatory on the part of the Magistrate to pass the minimum sentence of imprisonment against the respondent in respect of the offence as provided under S. 3(1) of the Act. It was also contended that though there was no obligation on the Magistrate to pass a sentence of imprisonment in respect of the offence under S. 4 (1) of the Act, sentence awarded by him was inadequate. The High Court enhanced the sentence of fine in respect of the offence under S. 3 (1) to a sum of Rs. 2,000. In so far as the other offence was concerned the High Court set aside the sentence of fine and instead directed that the respondent be released on his entering into a bond for a sum of Rs. 2,000 under S. 562 of the Code of Criminal Procedure to keep peace and be of good behaviour for a period of three years. The provisions of S. 3 (1) of the Act read thus:

(2.) It is significant to notice that the expression used in the original provision is "punished" and not "punishable". A bare perusal of the Penal Code would show that the Legislature has in the penal provision also used the expression "punished". This is so even where discretion has been conferred upon the Court to award a sentence of fine in lieu of or in addition to a sentence of imprisonment. The mere use of the word "punished" or the word "punishable" is not determinative of the intention of the legislature to empower the Court to select one or more kinds of sentences prescribed by it for an offence or to making it obligatory upon it to pass a particular sentence or sentences so prescribed. One thing follows with certainty from the use of either of these expressions and that is that upon the conviction of a person for the particular offence the Court is bound to award punishment. What the nature and extent of the punishment to be awarded has to be ascertained by a consideration of the entire penal provision. Now let us consider S. 43 (1) as it was before its amendment in the year 1946. There the Legislature had said that the convicted person shall be "punished". Then it proceeded to say that the punishment shall be (a) imprisonment for a term which may extend to six years; (b) or a fine which may extend to Rs. 1,000; (c) or imprisonment as well as fine. If the whole provision is construed it is clear that despite that use of the words "punished with" the nature of the sentence was left to the discretion of the Court. Even if the word "punishable" had been used instead of "punished" the result would have been the same because of the use of the word "or". That is to say that the provision would have been open to only one construction and that is that it was discretionary with the Court to choose the nature of punishment to be awarded to a convicted person. Since all this was clear there would have been no point in amending the provision in the year 1947 if the nature of the punishment was still to be left to the discretion of the Court. The plain meaning of the words "shall, on conviction, be punishable for the first offence with imprisonment for a term which may extend to six months and with fine which may extend to rupees one thousand" would be that the Court convicting a person of an offence under the Act was bound to award a sentence consisting both of imprisonment and fine. The words "may extend' preceding "six months" and "rupees one thousand" respectively merely give discretion to the Court in so far as the extent of imprisonment or fine to be awarded is concerned and nothing more. It is obvious that the Legislature replaced the original "or" which gave an option to the Magistrate by "and" to make its intention clear. The Full Bench however, expressed the view that by using the expression "punishable" the Legislature conferred a discretion of the Court and because of the use of that expression the Full Bench has construed "and" as meaning "and/or". It is no doubt true that the expression "punishment. "Liable to punishment "only means that a person who has contravened a penal provision will have to be punished. Thus it does not mean anything different from "shall be punished" Punishment is obligatory in either case. But, as already observed, what the nature of punishment is to be must be ascertained by a consideration of the whole of the penal provision. We, therefore, are unable to accept the view of the Full Bench that by merely using the expression "punishable" the Legislature intended to say that a discretion was left with the Court to determine the nature of punishment. If the view of the High Court that the word "punishable" imports a discretion in the Court were to be accepted an astonishing result, would ensue it would follow that there is discretion in the Court whether to punish a convicted person at all or not. Mr. Garg frankly says that he cannot support a construction which would lead to such a result. Once the position is reached that the expression "punishable" does not confer a discretion on the Court whether to award a punishment or not, no difficulty arises in construing the section and so the conjunction "and" is not required to be construed to mean the opposite, that is, to mean "or".

(3.) Mr. Garg tried to rely upon the proviso in support of his contention that the determination of the nature of the sentence was left in the discretion of the Court. In our opinion the proviso does not afford any assistance to him. On the other hand it would seem to fetter the discretion of the Court still further by making it obligatory upon the Court to pass, ordinarily, a sentence of imprisonment of not less than three months.