NARAYANAPPA Vs. ADIMOORTHY

JUDGEMENT

(1.) On a private complaint being filed before the learned Munsiff- Magistrate, Kuppam under section 494, Indian Penal Code read with section 17 of the Hindu Marriage Act, it was taken on file and after a full trial, the learned Magistrate came to the conclusion that the complainant had proved the case and accordingly convicted the accused under section 494, Indian Penal Code read with section 17 of the Hindu Marriage Act and sentenced him to pay a fine of Rs. 500 and in default of payment of fine to undergo rigorous imprisonment for six months.

(2.) An appeal was carried to the Court of learned Sessions Judge, Chittoor. To the extent of the merits of the case, the learned Judge of the lower appellate Court agreed with the finding of the trial Court and confirmed the conviction, but he found that the sentence of fine only passed against the accused was illegal because in terms of section 494, Indian Penal Code the sentence of imprisonment is mandatory. Therefore he has made a reference to this Court recommending that the sentence may be rectified and it should be made legal. When this reference came up before me, Mr. Venugopal Reddy, learned Counsel for the respondent contended that if I pass a sentence of imprisonment as recommended by the learned Sessions Judge, it would amount to enhancement of sentence and as such he is entitled to show cause against his conviction under section 439, Clause (6), Criminal Procedure Code. In support of his argument he has relied on a number of cases to which a reference will be made immediately. In Bisheshar and others v. Rex, A.I.R. 1949 All. 213. the accused were convicted of an offence under section 325, Indian Penal Code by the trial Court and it appears that the complainant filed a criminal revision which came up before a Division Bench of that Court. The learned Judges held that a clear illegality in passing the sentence was committed by the trial Court. But still it was observed that the awarding of the sentence of imprisonment was called for only in the case of those accused who took part in the beating and accordingly they were sentenced to three months' rigorous imprisonment. But with regard to others who did not take part actually in the beating, but still were convicted under section 325 read with section 34, Indian Penal Code, it was observed that substantial justice might be taken to have been done by the imposition of a sentence of a fine only. With all due respect to the learned Judges I cannot subscribe to this opinion. If any illegality is detected by a Court of revision, it is bound, even if it works hardship on the person concerned to correct it and make an order which is in accordance with law. I have been referred to the Notes of Unreported cases in the Crown v. Zarif Khan, A.I.R. 1955 Notes of unreporter Cases 6152. in which it was observed by the Judicial Commissioner that if an order of enhancement or substitution of sentence is to be passed, in that case the accused should be given an opportunity to show cause against his conviction. This observation in my view accords with the terms of section 439, clause (6),Criminal Procedure Code and certainly in every case where the sentence is to be enhanced, the person to be affected has to be given a chance to show cause against his conviction. In Joyram Rakshit v. Annada Prosad Kundu, A.I.R. 1941 Cal. 90. it appears that the accused was convicted of an offence under section 323, Indian Penal Code and was sentence to pay a fine of Rs. 1,000. Thereafter the District Magistrate made a reference to the High Court recommending that the charge should be altered to one under section 325, Indian Penal Code and the sentence which was grossly inadequate should be enhanced. In these circumstances the learned judges correctly observed that the High Court had no power to alter a conviction made under section 323, Indian Penal Code to one under section 325, Indian Penal Code, in a revision, and therefore the question of enhancement did not arise. On the other hand, the accused was acquitted by the Court because it was felt that the evidence in the case and the story of the prosecution was highly discrepant. The Bench of the Kerala High Court in State v. Theyyan, A.I.R. 1960 Ker. 147. had occasion to consider this point. In this case, the accused was convicted of an offence under section 325, Indian Penal Code but only a sentence of fine was imposed. The District Magistrate before whom this matter came up by way of revision made a reference to the High Court pointing out the illegality committed by the Magistrate in awarding only a sentence of fine and recommending that a sentence of imprisonment may also be added and I agree with the observation made by the barned Judges that the Court is bound to interfere and set right the illegality if it finds that the sentence awarded is not sanctioned by law. But at the end of their judgment the learned Judges observed that the sentence of the accused was enhanced by addition of a sentence of rigorous imprisonment for a term of six months. Therefore, the learned Counsel for the respondent has urged before me that this was a case where the sentence was enhanced after hearing the Counsel for the accused on merits. Though from the judgment it does not appear that the accused, before his sentence was enhanced, was given a notice under clause (6) of section 439, Criminal Procedure Court but from the trend of the discussion in the judgment it appears that the accused was given an opportunity though really it was not a case in which enhancement of the sentence came up for consideration. In my view correction of an illegality even if it works hardship on the person concerned is only a correction rather than an enhacement and in such a situation the provisions of clause (6) of section 439, Criminal Procedure Code do not apply and as the conviction of the respondent became final because he did not move in the matter after his conviction was confirmed by the lower applellate Court. I think no opportunity can be given to the respondent to show cause against his conviction.

(3.) Therefore I proceed to correct the illegality and pass a legal order. Hence it is ordered that the respondent who is convicted under section 494, Indian Penal Code read with section 17 of the Hindu Marriage Act is sentenced to pay a fine of Rs. 500 and in default to further suffer rigorous imprisonment for six months shall in addition to this, is sentenced to imprisonment till the rising of the Court. The reference is accordingly answered. Answered acccrdingly