EMPEROR Vs. MANCHERSHAW NASSERWANJI

JUDGEMENT

(1.) This is a reference made by the District Magistrate of West Khandesh. The accused was convicted by the First Class Magistrate, Taloda, of an offence under Section 290 of the Indian Penal Code, and he was released with an admonition by the Magistrate who purported to act under the powers conferred by Section 562 (1A) of the Criminal Procedure Code.

(2.) The learned District Magistrate has referred the matter to this Court because he considers that Section 562 (1A) does not apply to any offence punishable only with fine, as is an offence under Section 290, Indian Penal Code. Section 562 is designed to enable the Court to deal leniently with first offenders convicted of offences not of the first gravity, and it is certainly strange to suggest that the section does not apply to offences of such a minor character as to be punishable only with fine. Sub-section (1) deals with offences "punishable with imprisonment for not more than seven years", and if the words are construed literally, it may be said that they do not cover an offence punishable with fine and not with imprisonment, and this view of the sub-section was taken by this Court in Emperor V/s. Kasturi (1926) 28 Bom. L.R. 1031. Sub-section (1A) deals with offences "punishable with not more than two years imprisonment", and taking these words literally they seem to cover an offence punishable only with fine, which cannot be said to be more than two years imprisonment.

(3.) I do not suppose that the Legislature intended to found any distinction upon the different phraseology used, and personally I should have been prepared to hold that both sub-sections apply to offences punishable with a less severe sentence than that referred to in the respective sub-sections, and I should say that a fine is a less severe sentence than imprisonment (see Section 53, Indian Indian Penal Code). We are bound by the decision of this Court already referred to upon the construction of Section 562(1), but I see no reason why we should not give to Section 562 (1A) a meaning justified by a literal construction of the language and consonant with what appears to be the intention of the section, and hold that the sub-section covers offences punishable only with fine. No order will, therefore, be made on the reference.