DHANDAPANI Vs. DHANDAPANI S O PALANISAMY

JUDGEMENT

(1.) This revision is challenging the of the legality of the punishment without substantive sentence, passed by the learned Principal Sessions Judge, Trichirapalli in C.A. No. 76/91 a confirming the order of conviction passed in C.A. No. 76/91 confirming the order of conviction passed in CC. No. 495 of 1989 on the file of the Judicial Magistrate No. III, Karur. The revision petitioner was the complainant before the trial Court. He filed the complaint against the first respondent, who was the second accused, and another person for the offences under Sections 323, 325 and 326, Indian Pedal Code alleging that on 26-2-88 when he was diverting the water for the irrigation of his sister's land, P.W. 2, this respondent and his father beat him and his sister, causing grievous injuries. The trial Court convicted the first respondent for the offences under Sections 326, Indian Penal Code to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 500.00. The other accused was acquitted of all the charges. On appeal before the learned Principal Sessions Judge, Trichy, though he confirmed the conviction, modified the sentence to one of fine of Rs. 750.00 only. As nao substantive sentence has been awarded to the offender for the offence. Under Section 326, Indian Penal Code, the complainant has come forward with this revision.

(2.) The learned counsel for the petitioner would submit that under Section 326, Indian Penal Code, the sentence to be awarded is imprisonment for life of with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and the reading of the Section makes it clear that the substantive sentence of imprisonment is compulsory but the learned Sessions Judge without awarding the substantive sentence has imposed only the fine, which is illegal and therefore this defect has to be corrected by remanding the matter for awarding the proper punishment as directed under Section 326, Indian Penal Code. The learned Government Advocate appearing for the second respondent supports the argument of the revision petitioner. But the learned counsel for the first respondent submits that the word 'shall' used in Section 326, Indian Penal Code cannot be taken as mandatory as the Courts have got discretion to impose the substantive sentence or the fine and as the fine also is punishment, the failure to award substantive sentence cannot be considered to be illegal and therefore the revision is not sustainable. The learned counsel draws support from a decision of the Supreme Court in State of U.P. v. Manbodhan Lal, AIR 1957 SC 912, wherein the Supreme Court has observed that use of the word 'shall' in a statute though generally taken in a mandatory sense, it is not necessarily meant that in every case it shall have that effect. The expression of the Supreme Court by itself make it clear that the word 'shall' shall be generally taken in the mandatory sense, though it should not be in every case. In this case, if we read the Sections 323 and 324, Indian Penal Code to compare the direction given in Section 326, the only inference that could be drawn is that the word 'shall' has to be taken as mandatory. In Sections 323 and 324, the substantive sentence is only an alternative punishment. For Section 323, I.P.C., the word 'may' is used and the substantive sentence extends up to one year or with fine upto Rs. 1,000.00 or with both, whereas for Section 324, the substantive sentence is three years or with fine or with both. The prescribed sentence for these Sections is either the substantive sentence or fine whereas for Section 326, the wording of the Section is that 'whoever voluntarily causes grievous hurt.... shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefore, as the punishment prescribed is the substantive sentence and also the fine, the Court awarding the punishment was bound to impose the sentence prescribed under the Code. But, in this, case, the learned Sessions Judge has not awarded the substantive sentence but only the fine of Rs. 750.00. Therefore, he has not complied with the direction while imposing the sentence.

(3.) The learned counsel for the petitioner refers to another decision in Rayar in Re, 1982 Mad LW (Crl) 47 : (1982 Cri LJ NOC 122), wherein for the offence under Section 397, Indian Penal Code, as minimum sentence was not awarded enhancement of sentence was sought for. But this Court has found that the framing of the charge under Section 397 itself was not proper and therefore it held that the enhancement of sentence for Section 397 was not warranted. Another decision relied upon by him is State v. Rangaswami, 1981 Cri LJ 694 (Mad). That was the case in which the minimum sentence was not awarded for the offence under Section 397, Indian Penal Code and on revision, this Court has held that though the non-observance of the provision by the lower Court was bound to be corrected by the High Court exercising its revisional powers, the order was found unworkable in that case as apprehending the accused was felt remote due to the long lapse of time. It appears that as the tracing of the accused itself was doubtful, in that case this Court has observed, even if the mistake committed by the lower Court was corrected, the order could not be worked out because the accused could not be traced. In this case, the first respondent has entered appearance through a counsel here. Therefore, there is no such possibility for the unworkable order.