HIGH COURT OF CHHATTISGARH AT BILASPUR
-----------------------------------------------------(SINGLE BENCH:HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL)
-----------------------------------------------------Criminal Revision No. 295 of 2005
PETITIONER
: Shamim Bano
VERSUS
RESPONDENTS
: State of Chhattisgarh & two
others
(CRIMINAL REVISION UNDER SECTION 397 READ WITH SECTION 401
OF THE CODE OF CRIMINAL PROCEDURE)
-----------------------------------------------------Appearances:
MS. Fouzia Mirza, Counsel for the petitioner.
Shri Arvind Shukla,Panel Lawyer for the respondent No.1.
Shri Ravish Verma, Counsel for therespondent No.2&3.
-----------------------------------------------------O R A L O R D E R
(Passed on 07.08.2014)
1.
The following observation of their Lordships of
the Supreme Court in case of Standard Chartered
Bank v. Directorate of Enforcement and others1
aptly and squarely applies to the facts of the
instant case:“77...........In other words, sentence
must inexorably follow conviction, as
night follows the day.
The argument
that it is open to the court to abandon
its duty midway without imposition of
punishment of the offender, is one
without merit.”
1
2005 (4) SCC 530
2.
The necessary relevant facts are stated hereunder
to appreciate the case of the petitioner and also
for
find
out
whether
he
is
entitled
for
the
relief as prayed in the revision:2.1 That the Respondent No. 2 & 3 were charge-sheeted
by the Station House Officer, Supela, Bhilai, for
commission
of
offence
punishable
under
Section
498-A Indian Penal Code. After appreciating the
oral as well as documentary evidence on record,
the
trial
magistrate
by
its
judgment
dated
04.10.2004 found the respondent No. 2 & 3 guilty
of
offence
punishable
under
Section
498-A
of
Indian Penal Code (for short, IPC) and sentenced
them for six months rigorous
imprisonment and
also sentenced to pay fine of Rs. 100/- to each
of them with default stipulations.
2.2 The
respondent
No.
2
&
3
preferred
criminal
appeal under Section 374 of the Cr.P.C. before
the Court of Session. The learned Sessions Judge,
Durg
by
its
judgment
impugned
set
aside
the
substantive jail sentence and enhanced the fine
from Rs. 100/- to Rs. 1100/- to each of them with
default
stipulation
the appeal.
and
thereby
partly
allowed
2.3 Feeling aggrieved and dissatisfied with the part
of impugned judgement dated 19.04.2005, passed by
Second
Additional
Criminal
Appeal
sentence
awarded
Sessions
No.
by
Judge,
330/2004
trial
Durg,
interfering
Magistrate,
in
with
instant
revision has been preferred by the petitioner/
complainant.
3.
MS. Fouzia Mirza, learned counsel appearing for
the petitioner would submit that order of learned
Sessions Judge setting aside the punishment of
substantive
jail
sentence
by
enhancing
the
sentence of fine is clearly illegal and in teeth
of
Section
498-A
IPC,
which
mandatorily
prescribes punishment of imprisonment plus fine,
therefore, the impugned judgement deserves to be
set aside and respondent No. 2 & 3 be punished
with imprisonment and fine as well.
4.
Mr. Ravish Verma, learned counsel appearing for
the respondent No. 2 & 3
opposing the aforesaid
submission,
that
Judge
was
would
submit
absolutely
justified
learned
in
Sessions
interfering
with the sentence of imprisonment by enhancing
the sentence of fine, and as such, the revision
deserves
to
be
dismissed.
Mr.
Arvind
Shukla,
learned counsel for the State would support the
impugned judgement.
5.
I
have
parties
made
heard
and
the
counsel
considered
therein
and
appearing
their
perused
rival
the
for
the
submission
order
impugned
including records with utmost circumspection.
6.
The seminal issue falling for consideration in
this
revision
is
whether
for
commission
of
offence under Section 498-A IPC, punishment of
imprisonment is mandatory along with sentence of
fine?
7.
In order to appreciate the rivalised submissions
raised
at
the
bar,
it
would
be
profitable
to
notice Section 498-A IPC, which reads as under :
“498-A. Husband or relative of husband
of a woman subjecting her to crueltyWhoever,
relative
being
of
the
the
husband
husband
of
or
a
the
woman,
subjects such woman to cruelty shall be
punished
which
with
may
imprisonment
extend
to
for
three
a
years
term
and
shall also be liable to fine.......”
8.
From a careful and close perusal of Section 498-A
IPC it would appear that offence under Section
498-A
IPC
is
punishable
with
imprisonment
and
fine. In Section 498-A IPC, the conjunctive “and”
has been used.
9.
In
Principle
of
Statutory
Interpretation
by
Justice G.P.Singh (12th Edition), learned eminent
author
has
held
that
word
‘and’
is
normally
conjunctive in following words:“The word ‘or’ is normally disjunctive and
‘and’ is normally conjunctive but at times
they are read as vice versa to give effect
to the manifest intention of the Legislature
as disclosed from the context. As stated by
SCRUTTON, L.J.: “You do sometimes read ‘or’
as ‘and’ in a statute. But you do not do it
unless you are obliged because ‘or’ does not
generally mean ‘and’ and ‘and’ does not
generally mean ‘or’. And as pointed out by
LORD HALSBURY the reading of ‘or’ as ‘and’
is not to be resorted to, “unless some other
part of the same statute or the clear
intention of it requires that to be done.”
10. Similarly in Stroud’s Judicial Dictionary (Fifth
Edition) it is stated at page 124 as under:“(1) “And” has generally a cumulative sense,
requiring
the
fulfillment
of
all
the
conditions that it joins together, and
herein
it
is
the
antithesis
of
OR.
Sometimes,
however,
even
in
such
a
connection, it is, by force of a context,
read as “or”.
11.
The Supreme Court in case of M. Satyanarayan v.
The State of Karnataka and another2 has held that
the
expression
effect
2
AIR 1986 SC 1162
‘and’
requiring
the
has
generally
fulfillment
of
cumulative
all
the
conditions it joins together.
Paragraph five of
the aforesaid report states as under:
“5. If the expression ‘and’ in clause (a) is
read independently then there was no need
for
him
to
suffer
at
all
and
mere
participation would be enough to make him a
political sufferer.
That would defeat the
rationale behind the rule.
It would,
therefore,
frustrate
the
intention
and
purpose of the legislature.
The expression
‘and’ in these circumstances cannot be read
disjunctively.
It is not possible to hold
that
sub-clause
(a)
should
be
read
independently of sub-clause (b).
A statute
cannot be construed merely with reference to
grammar.
Statute whenever the language,
permits must be construed reasonably and
rationally to give effect to the intention
and purpose of the legislature.”
12. From the aforesaid enunciation of law it is quite
vivid
that
the
conjunctive
'And'
employed
in
Section 498-A IPC clearly indicates that criminal
court
sentencing
the
convicted
person
for
commission of an offence under Section 498-A IPC
has left with no discretion in imposing sentence
and
said
court
has
necessarily
to
impose
the
sentence of imprisonment plus sentence of fine
upon a person convicted for said offence in view
of conjunctive word “and” in the aforesaid penal
provision as it clearly expresses intention of
legislature that, such convicted person has to
suffer sentence of imprisonment and fine as well
looking to the nature and gravity of the offence
committed by said person against an woman, as the
said
provision
was
introduced
with
the
avowed
object to combat the menace of harassment to a
woman
at
the
hands
of
her
husband
and
his
relatives.
13.
In case of State of Maharashtra v. Jugmander Lal3
the
Supreme
Court
has
held
that,
expression
'shall be punishable for imprisonment and also
for the fine', means that the court is bound to
award a sentence comprising both imprisonment and
fine
and
anything
punishment
the
word
different
being
“punishable”
does
from
be
“shall
obligatory
in
not
mean
punished”,
either
case
in
following words:“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 on 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.”
3
AIR 1966 SC 940
14.
Furthermore, their Lordships of the Supreme Court
in a decision reported in Assistant Commissioner,
Assessment-II, Bangalore and others v. Velliapa
Textiles Ltd. And another4 has held in Paragraph
thirty five as under:“35...........Where
the
legislature
has
granted discretion to the court in the
matter of sentencing, it is open to the
court to use its discretion.
Where,
however, the legislature, for reasons of
policy, has done away with this discretion,
it is not open to the court to impose only a
part of the sentence prescribed by the
legislature,
for
that
would
amount
to
rewriting the provisions of the statute.”
15. Thus, on the basis of aforesaid analysis it is
transparently clear, once the court, after fullfledged
trial
procedure
convicts
sentence
in
comes
the
the
accordance
to
the
offender,
with
finding
the
offender
of
court
with
prescribed
the
guilt
is
bound
and
to
punishment
prescribed in particular penal provision as in
the
instant
case
Section
498-A
IPC
which
prescribes imposition of sentence consisting both
of imprisonment and fine.
16. Thus after having examined the mandatory nature
of punishment of imprisonment plus fine to be
imposed
under
4
2003 (11) SCC 405
upon
Section
the
person
498-A
IPC,
convicted
for
falling
back
offence
to
the
facts of instant case, it would be profitable to
notice paragraph four of impugned judgment passed
by the learned Sessions Judge, while considering
and imposing sentence to the respondent No. 2 & 3
convicted
for
above
stated
offence,
said
paragraph concludes as under :-
“4- mijksDr reke ifjfLFkfr;ksa dks ns[krs gq, fo)ku
vf/kuLFk U;k;ky; }kjk ikfjr fu.kZ; ,oa naMkns'k
fnukad 4-10-2004 dks vikLr fd;k tkrk gSA rFkk
vihykFkhZx.k@vH;qDrx.k dh vihy dks vkaf'kd :i ls
Lohdkj djrs gq, vihykFkhZ.k@vH;qDrx.k dks /kkjk
498&, Hkkjrh; naM lafgrk ds naMuh; vijk/k ds vkjksi
esa 1100@&1100@&:i;s ds vFkZnaM ls nafMr fd;k
tkrk gS] vFkZnaM dh jkf'k vnk ugh djus ij 3&3 ekg
ds lk/kkj.k dkjkokl dh ltk i`Fkd ls Hkqxrk;h tkosA**
17. From the careful reading of aforesaid paragraph
of the impugned judgment would clearly show that
while
maintaining
the
conviction
of
respondent
No. 2 & 3 under Section 498-A IPC, the learned
Sessions Judge has enhanced the fine sentence in
lieu
of
sentence
of
imprisonment
holding
the
punishment of imprisonment is optional as well as
discretionary for the aforesaid offence. In the
considered
adopted
opinion
and
of
sentence
this
court,
awarded
by
the
the
course
learned
Sessions Judge is in the teeth of Section 498-A
IPC,
as
it
has
already
been
held
in
forgoing
offence
paragraphs
under
Section
that
498-A
for
commission
of
sentence
of
IPC
imprisonment plus sentence of fine both are the
mandatory
to
the
person
convicted
for
said
offence.
18. Thus, based on forgoing analysis, the part of the
impugned judgment interfering with sentence for
offence under Section 498-A IPC and sentencing
only
by
deserves
fine
to
to
be
the
set
respondent
aside
being
No.2
and
contrary
3
to
express provision of law.
19. Resultantly the part of the impugned judgement as
indicated above is set aside and the Criminal
Appeal No. 330/04 (Usman Khan & another v. State
of
Chhattisgarh)
in
the
court
of
Second
Additional Sessions Judge, Durg is restored to
its original number for hearing and disposal on
the question of sentence in accordance with law
keeping in view the observations made hereinabove
within a period of three months from the date of
receipt of certified copy of this order. No order
as to cost(s).
Judge
inder
Head Note
1. For commission of offence under Section 498-A
of
the
Indian
Penal
Code
punishment
of
imprisonment and fine are mandatory.
2. Hkkjrh; naM fo/kku dh /kkjk 498&, ds vijk/k dkfjr djus ds fy, dkjkokl ,oa
tqekZuk nksuks ltk vko';d gSA
(Indrajeet Sahu)
Private Secretary