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Shivaji Narayan Shinde Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Appeal No. 1032 of 1969 and Review Application No. 341 of 1970
Judge
Reported in(1971)73BOMLR215; 1971MhLJ864
AppellantShivaji Narayan Shinde
RespondentThe State of Maharashtra
DispositionAppeal dismissed
Excerpt:
indian penal code (act xlv of 1860), sections 468, 471, 53, 60 - criminal procedure code (act v of 1898), sections 367(2), 383, 369--criminal manual, i960, chapter v, para 48, clause (f)--whether section 468 i.p.c. requires actual commission of offence of cheating--section 471 whether requires effective user of forged document-sentence of imprisonment-nature of imprisonment whether am be specified for first time in warrant under section 383, cr.p.c.--practice--court should specify nature of imprisonment.;section 468 of the indian penal code, 1860, does not require that the accused should actually commit the offence of cheating. what is material is the intention or purpose of the offender in committing forgery.;if a forged document is in fact used by the offender for the purpose of.....madon, j.1. this is an appeal by an accused who has been convicted under sections 468 and 471 of the indian penal code.2. the facts which have given rise to this appeal are that the appellant's father-in-law, b. r. kodare, had a savings bank account with the bajirao road post office at poona. the number of the account was 596028. about three years prior to 1969 the appellant left rahu, the village where he was residing, and came to live in mundhawa near poona, very close to his father-in-law. he became acquainted with krishna rasane, the owner of a bangle and cycle shop in mundhawa. in the morning of september 20, 1968 rasane was coming to poona on his bicycle. on the way he met the appellant who was also proceeding to poona on a bicycle; so these two cycled towards poona in the company.....
Judgment:

Madon, J.

1. This is an appeal by an accused who has been convicted under Sections 468 and 471 of the Indian Penal Code.

2. The facts which have given rise to this appeal are that the appellant's father-in-law, B. R. Kodare, had a savings bank account with the Bajirao Road Post Office at Poona. The number of the account was 596028. About three years prior to 1969 the appellant left Rahu, the village where he was residing, and came to live in Mundhawa near Poona, very close to his father-in-law. He became acquainted with Krishna Rasane, the owner of a bangle and cycle shop in Mundhawa. In the morning of September 20, 1968 Rasane was coming to Poona on his bicycle. On the way he met the appellant who was also proceeding to Poona on a bicycle; so these two cycled towards Poona in the company of each other. On the way the appellant told Rasane that he wanted to withdraw some money from the Bajirao Road Post Office and that Rasane should accompany him, and thereafter they could both proceed to Poona together. Accordingly the appellant and Rasane went to the Bajirao Road Post Office and the appellant handed over a pass book to Mrs. Nalini Alathe, who is the savings bank clerk at the said post office, and informed her that he wanted to withdraw Rs. 500. He also requested her to give him a withdrawal application form. Accordingly Mrs. Alathe gave the appellant a withdrawal application form for being filled in. Admittedly the pass book handed over by the appellant to Mrs. Alathe was the pass book of Account No. 596028. As the cover of the pass book was missing, Mrs.. Alathe could not find out the number of the account, and in order to trace it she kept the pass book with her and tried to ascertain the number of the account from the particulars appearing 'n the last entry in the pass book with the help of the savings bank journal. She found that that particular account stood in the name of B. R, Kodare and that the entries in the pass book did not tally with those in the journal. Further, the first page of the pass book showed erasures and overwriting and the name of the depositor shown thereon, both in English and in Marathi, was Shivaji Narayan Shinde, that is, the name of the appellant, instead of B. R. Kodare. The address appearing on it in Marathi was the Rahu village address of the appellant. This aroused the suspicions of Mrs. Alathe who thereupon took the savings bank journal and the pass book to sub-postmaster Bhalchandra Kanade and pointed out to him the discrepancies which she had found. Kanade checked up the entries and the name appearing in the pass book with those in the savings bank journal and verified that they did not tally. On that day the Assistant Superintendent of Post Offices, Wasudeo Kulkarni, had come to the Bajirao Road Post Office for some administrative work. Sub-postmaster Kanade reported the matter to him. Kulkarni thereupon called in the appellant and asked him why he had brought the pass book. The appellant replied that he had brought the pass book as he wanted to withdraw Rs. 500. Kulkarni further asked him who had made alterations in the pass book. The appellant denied all knowledge with respect to these alterations. Kulkarni also called in Rasane who on being questioned informed him that he had merely accompanied the appellant, Kulkarni thereafter rang up the Phule Market Police Chowki and reported the matter. He was asked to bring the appellant to the police chowki. Accordingly he took the appellant with him to the Phule Market Police Chowki and lodged a complaint which was taken down as the first information report. The appellant was thereafter put under arrest.

3. P.S.I. Dhairasing Jadhav attached to the Phule Market Police Chowki took the specimen handwriting of the appellant on September 25, 1968 in the presence of panchats. This specimen writing is exh. 17. He also directed the house of the appellant's father to be searched. The search was carried out by Head Constable Rokade on September 27, 1968 who seized two letters in the presence of panchas. These two letters are exhs. 13 and 14 and are admittedly in the handwriting of the appellant. Exhibit 13 is a letter written by the appellant to his father. The name and address of the appellant in the right-hand top corner of that letter is in English, the rest being in Marathi. These two letters and the specimen handwriting of the appellant along with the pass book were sent to the Chief State Examiner of Documents, Shriniwas Phansalkar. Phansalkar examined the documents with the help of magnifying apparatus and lights from different angles. He also took photographs and came to the conclusion that the alterations in the pass book were in the handwriting of the same person as the author of the two letters and the specimen writing. The appellant was thereupon, charge-sheeted before the Judicial Magistrate, First Class, Court No. 4, Poona. At the time of his examination in the committal Court the appellant filed an application dated April 17, 1969 pleading guilty to the offences with which he was charged and requesting the Court to have mercy on him. He also stated in his oral examination by the committal Court that the prosecution evidence was true and that he had filed the application pleading guilty voluntarily and under his own signature. The appellant was thereupon committed to Sessions on several charges. The learned Additional Sessions Judge, Poona, before whom the appellant was tried reframed the charges to those under Sections 468 and 471 of the Indian Penal Code. The charge under Section 468 was that the appellant had committed forgery in the post office pass book No. 596028 by altering the 'deposit' and 'balance' figures in the account of B. R. Kodre with intent to cheat the postal authorities. The charge under Section 471 was that the appellant had fraudulently and dishonestly used as genuine the said pass book which he knew or had reason to believe to have been forged.

4. During the course of the trial, as the learned Additional Sessions Judge felt that on page 1 of the pass book the name of the account-holder 'B.R. Kodre' was erased and substituted by the name of the appellant, by his order dated July 1, 1969 he directed the Chief State Examiner Phansalkar to take photographs of that portion of the pass book in ultra-violet light and produce the same in Court. This was done. Apart from the evidence of Police witnesses and the panchas, the prosecution examined Rasane, the savings bank Account Clerk Mrs. Alathe, Sub-Postmaster Kanade and Assistant Superintendent of Post Office Kulkarni as also the handwriting expert Phansalkar. The prosecution could not examine Kodre as he died about one month before the commencement of the trial in the Sessions Court.

5. In his examination under Section 342 of the Criminal Procedure Code the appellant retracted the plea of guilty which he had made in the committal Court. He stated that he had gone to the Bajirao Road Post Office to deposit his father-in-law's pass book and not to withdraw moneys. He denied all knowledge of the person who had made the alterations in the pass book. He denied having given in the committal Court the application of April 17, 1969 pleading guilty. He stated that he was ill and did not know who had made that application. He, however, admitted that the two letters, exhs, 13 and 14, and the specimen writing, exh. 17, were in his own handwriting.

6. The learned Additional Sessions Judge found the appellant guilty on both the counts and sentenced him to three years' imprisonment under Section 468 and to one year's imprisonment under Section 471, both these sentences to run concurrently. It is against this conviction and sentences that the appellant has filed the present appeal.

7. It will be convenient at this stage to set out the alterations in the pass book which the prosecution contends are forgeries. On the first page of the pass book the name of the account-holder has been erased and substituted by 'Shivaji Narayan Shinde Poona'. There is a date in the left-hand corner which, by reason of being written over an obvious erasure, cannot be wholly deciphered. A little below this is written in Marathi the name of the appellant preceded by the word 'Name ' and followed by his Rahu address. The pass book is divided in-to seven columns with these respective headings : (1) Date, (2) Date stamp of the post office, (8) Amount of each deposit or withdrawal (to be entered in words), (4) Amount deposited, (5) Amount withdrawn, (6) Balance at credit of depositor, and (1) Initials of postmaster. As appears from the evidence, the particulars in these columns are to be filled in by the postal authorities. As and when each withdrawal or deposit is made, the stamp of the Post Office is put in column 2 and the Postmaster initials the entry in column 7. On February 23,1966 there was a balance of Rs. 5.84np. only in the account of B. R. Kodre. The last four-items in the pass book have been altered so as to show fictitious deposits of Rs. 2,000 and Rs. 500 respectively; the first of such deposits is on page 13 and the second on page 15 of the pass book. In order to reflect these deposits in the sixth column which shows the balance to the credit of the depositor, corresponding alterations have been made in the figures mentioned in that column. All entries in the pass book, except the last entry which shows the fictitious deposit of Rs. 500 and the fictitious balance of Rs. 2,505.84 p., show the date in the first column and bear the signature of the Postmaster in the seventh column as also the stamp of the Bajirao Road Post Office along with the date on which stamp was put in the second column. The savings bank journal has been produced in evidence and the entries in Kodre's account in the journal tally with those in the pass book if the alterations are ignored. It is, therefore, clear that the entries in question are the result of alterations made in the pass book. Even a cursory glance would show that page 1 contains erasures and over-writing which become glaringly obvious when looked at through the magnifying glass or in the photographs taken by the Chief State Examiner of Documents Phansalkar. Phansalkar stated in his evidence that the original name was erased both by chemicals as well as by rubbing and that the stains of chemicals are visible.

8. On the evidence, there can be no doubt, and indeed in his statement under Section 842 of the Criminal Procedure Code the appellant did not dispute, that the pass book did not belong to the appellant but belonged to his father-in-law and that it contained alterations and that it was presented at the Bajirao Road Post Office by the appellant. The only defence put forward by the appellant was that he handed over the pass book for the purpose of depositing it and not to withdraw money. We have on the record the clear evidence of Rasane, the Savings Bank Clerk Mrs. Alathe and the Assistant Superintendent of Post Offices Kulkarni that the appellant stated to each of them that he wanted to withdraw moneys. Rasane has deposed that on the way to Poona from Mundhawa the appellant asked Rasane to accompany him to the Bajirao Road Post Office as he wanted to withdraw some money. Mrs. Alathe has stated that the appellant informed her that he wanted to withdraw Rs. 500 and that on his request she gave him the withdrawal application form. When Kulkarni questioned the appellant, the appellant told him that he had brought the pass book as he wanted to withdraw Rs. 500. Now, there is no reason, and none is suggested, why any of these three witnesses should tell a falsehood. Rasane was the friend of the appellant and Mrs. Alathe and Kulkarni are strangers to him. None of them could be interested in the slightest degree in falsely implicating the appellant. Further, unless the appellant had asked for a withdrawal application form, there was no reason for Mrs. Alathe to have given him one. It passes comprehension why the appellant should go to the post office merely to deposit the pass book. Deposits and withdrawals in a savings bank account in a post office are not effected by means of pay-in-slip or by presenting a cheque as in the case of a current account. As shown by the instructions contained in the said pass book, a withdrawal is to be effected by the depositor taking or sending his pass book to the post office with an application in the prescribed form. Similarly, when a depositor wishes to deposit money, he has to take or send the amount with his pass book to the post office. From the circumstances in which the pass book was presented, it is not possible to give any credence to the statement of the appellant that he wished to deposit the pass book. The appellant had taken to the post office a pass book which showed on the very first page his name and address and he could never have taken that pass book to the post office to deposit it as the pass book of his father-in-law.

9. The only other question of fact which remains to be considered is whether the appellant is the author of these alterations. All the circumstances in this case point indubitably to the conclusion that that author is the appellant. It was he who presented to the saving bank clerk the pass book containing alterations and showing on the face of it his own name and address and asked to withdraw Rs. 500. It was the pass book of his father in-law who stayed virtually next doors to him. Nobody else would be interested in making these alterations. In addition there is the evidence of Phansalkar, the Chief State Examiner of Documents, who has given detailed and convincing reasons for coming to the conclusion that the handwriting in which the alterations in the pass book were made was the same as that of the person who wrote the two letters, Exhs. 13 and 14, and the specimen writing, ex.- 17. In his statement under Section 342 of the Criminal Procedure Code the appellant has admitted that these two letters and the specimen writing are in his own handwriting. We have ourselves compared the admitted writings with the alterations made in the pass book and have verified the premises from which Phansalkar deduced his conclusion and we are satisfied about the correctness of the opinion given by him. We have, therefore, no hesitation in holding that the appellant is the author of the above alterations made in the pass book.

10. It was, however, contended before us that on the facts established by the prosecution, no offence under Section 468 or 471 can be said to have been committed. In support of this contention reliance was placed upon the fact that admittedly the appellant had not received any money from the postal authorities and had not even filled in the withdrawal application form. It is true that no moneys were handed over by the postal authorities to the appellant nor did the appellant fill in the withdrawal application form. That was so because before the appellant could fill in the withdrawal application form, he was called in by Assistant Superintendent Kulkarni. The submission of Mr. Karlekar, learned advocate for the appellant, was that cheating is an essential ingredient of the offence under a. 468 and as the appellant did not succeed in obtaining money, he could not be said to have committed an offence under that section. In other words, this submission amounted to saying that for a forger to be guilty of an offence under Section 468 it is necessary that he should also have succeeded in his design to cheat. With respect to Section 471, the submission was that the appellant did not use the forged document, namely, the said pass book, as a genuine document since he had not filled in the withdrawal application form. These submissions now fall to be considered.

11. Section 468 of the Indian Penal Code provides as follows :

Forgery for purpose of cheating.-Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The offence under Section 468 is an aggravated form of the offence of forgery. Under

Whoever makes any false document or part if a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

Under Section 464, which is to be read as part of the definition of 'forgery' in Section 463,

A person is said to make a false document-

First.-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that' it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or

Secondly.-'Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or...

We have not reproduced the third clause of Section 464 as it is not material to the present appeal. The offence of forgery simpliciter is punishable under Section 465. The group of sections beginning with Section 465 and ending with Section 469 provide for aggravated forms of forgery. Section 466 deals with forgery of a record of Court or of a public register, etc., Section 468 with forgery for the purpose of cheating, and s. 469 with forgery for the purpose of harming reputation; the punishment prescribed for each of these aggravated offences being higher than for the offence of forgery under Section 465. The ingredient of the offence under Section 468 is the committing of forgery with a particular intent, that intent being that the document forged should be used for the purpose of cheating. The section does not require that the accused should actually commit the offence of cheating. Forgery is usually an act done in the furtherance of some other criminal design. What is material is the intention or purpose of the offender in committing forgery. If his intention or purpose in committing forgery is that the forged document should be used for the purpose of cheating, the offender is guilty of the aggravated offence under Section 468. If a forged document was in fact used by the offender for the purpose of cheating, he would be guilty both of the offence aider Section 468 as also the offence of cheating and he would be liable to be punished for both these offences.

12. In the present case, the fact that the appellant did not succeed in cheating the postal authorities is irrelevant. There can be no doubt that the appellant committed forgery. His act falls under the second clause of Section 464 read with Section 463. He has dishonestly, to at is, with intent to cause wrongful gain to himself, altered the pass book in material parts thereof after it was made and executed by the postal authorities without his having any lawful authority to do so. He has done so in order to cause the postal authorities to part with property, namely, money, to him, his purpose being to deceive the postal authorities by inducing them to believe that he was the account-holder and there was sufficient credit in the account for payment of a sum of Rs. 500 to him, in order to induce the postal authorities to deliver Rs. 500 to him. Thus, all the ingredients of Section 468 are found in the present case. Had the appellant succeeded in obtaining Rs. 500, in addition to the offence under Section 468 he would have also committed an offence under Section 420.

13. Turning now to the submissions on the second count, Section 471 of the Indian Penal Code provides as follows :

Using as genuine forged document.-Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

A 'forged document' is defined by Section 470. Under that section ' a false document made wholly or in part by forgery' is designated 'a forged document'. The forged document in the present case is the altered pass book. 'Dishonestly' and 'fraudulently' are defined by Sections 24 and 25 respectively. These sections provide as follows :

24. Dishonestly.-'Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly.'

25. Fraudulently.-A. person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

The distinction between these two terms, which occur also in Section 464, cam? for consideration before the Supreme Court in Dr. Vimla v. Delhi Administration. : 1963CriLJ434

It was pointed out in that case that the two adverbs, 'dishonestly' and 'fraudulently', are used alternatively indicating- thereby that one excludes the other and that they are not meant to be tautological and ought, therefore, to be given different meanings. The word 'defraud' in Section 25 includes an element of deceit. While deceit is an important ingredient of the definition of the word 'fraudulently', it is not an ingredient of the definition of the word 'dishonestly'. 'Dishonestly' involves a pecuniary or economic gain or loss, while 'fraudulently' by construction excludes that element. The juxtaposition of the two expressions, 'dishonestly' and 'fraudulently', used in the various sections of the Indian Penal Code indicate their close affinity and, therefore, the definition of one may give colour to the other. After considering the various authorities, the position in law was thus summarised by Subba Rao, J., as he then was, who delivered the unanimous judgment of the Court (p. 1576) :

To summarize: The expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of properly, -whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

14. In the present case, it is clearly established that the intention of the appellant was to make wrongful gain to himself. What is, however, contended on his behalf is that there was no dishonest use made of this forged document. This contention cannot be accepted. In our opinion, the words 'uses as genuine' in the phrase 'uses as genuine any document which he knows or has reason to believe to be a forged document' occurring in Section 471 are used in a general sense. Bearing in mind the wide variety of ways in which a forged document can be used, it would be neither practical nor desirable to put the words 'uses as genuine' in the strait-jacket of an exhaustive definition. In our opinion, these words cannot and do not mean that the user must be an effective one. They have reference to the act of the offender and not to the resultant effect on the person to whom the forged document is presented.

15. This question has been considered in a number of decisions of other High Courts though it does not appear to have come before this High Court. In Emperor v. Mohit Kumar Mukerjee I.L.R.(1925) Cal. 881, after discussing the earlier authorities, Page, J., sitting singly on the Original Criminal Side of the Calcutta High Court, held that when a person fraudulently or dishonestly presents a document to another person as being what it purports to be, or causes the same to be so presented, knowing or having reason to believe that it is forged, the document is used as genuine within the meaning of Section 471 of the Indian Penal Code. Whether there has been a user or not must depend upon the circumstances of the case. Neither the acquisition nor the deprivation is an essential ingredient of the intent in an offence under Section 471. In Supdt. & Rembr., Bengal v. Daulatram : AIR1932Cal390 , a Division Bench of the same High Court pointed out that to constitute an offence under Section 471, the nature of the user is not material. In Ali Ahmad v. Emperor A.I.R. [1982] Cal. 545, the facts were that certain false documents were filed in Court along with the plaint. It was contended in the written statement that these documents were a forgery. The suit was dismissed. The accused was thereafter prosecuted and convicted, inter alia, under Section 471. The same Division Bench of the Calcutta High Court held that if a person puts forward a document as supporting his claim in any matter, whether that document is acted upon by the Court or used in evidence or not is immaterial for the purpose of constituting user of the document by that party within the meaning of Section 471. The same view was taken by a Division Bench of the Patna High Court in Idu Jolaha v. Emperor : AIR1918Pat274 . In Hampana Gowd v. Emperor : AIR1936Mad280 , a suit was filed against the accused on a pronote. The accused set up the defence of part payment and produced certain receipts* in Court in respect of such alleged payments. After filing these documents along with his written statement in Court, the accused did not defend the suit any further and the suit was decreed ex parte, and it was found that these receipts were forged. The accused was prosecuted and convicted under Section 471. It was argued in an appeal by the accused against his conviction that what the accused had done did not amount to using the forged receipts as genuine. This argument was characterised by King, J., as, being 'quite unsustainable'. He said (p. 282):..It is impossible in my opinion to maintain that when a man gives receipts to his vakil and asks him to produce them in Court in support of his defence to a civil suit, he is not using those receipts as genuine.

These authorities fortify us in the conclusion we have reached that what is relevant under Section 471 is the use to which the forged document is put by the offender and not whether the party to whom the document is presented accepts or treats that document as genuine.

16. In the present case also when the appellant handed over the pass book to Mrs. Alathe, he did so using that forged pass book as genuine and desiring on the strength of it to withdraw Rs. 500. He asked for a withdrawal application form to enable him to complete the offence of cheating by filling in the form and obtaining payment of Rs. 500. That he did not succeed in carrying out his criminal object of causing wrongful gain to himself by obtaining Rs. 500 on the strength of this forged pass book does not mean that he did not use the forged document as genuine. He, being the author of the forgery, of course knew the pass book to be a forged document. Thus, all the ingredients necessary to constitute an offence under Section 471 are found in the present case.

17. We, therefore, hold that the appellant was rightly convicted both under Section 468 as also under Section 471 of the Indian Penal Code.

18. While we were delivering this judgment, it came to our notice that in sentencing the appellant to imprisonment on both the counts the learned Additional Sessions Judge had omitted to specify the nature of the imprisonment which the appellant was to undergo. In the warrant under Section 388 of the Criminal Procedure Code which he issued to the jailer for exemption of the sentence the learned Additional Sessions Judge, however, provided that the appellant was to suffer rigorous imprisonment on both the counts. This warrant clearly manifested the intention of the trial Court to pass upon the appellant a sentence of rigorous imprisonment. A question then arose whether the judgment should be read along with the warrant so as to effectuate the intention of the trial Court or whether the judgment should be read by itself and the sentence of imprisonment passed upon the appellant should be taken as simple imprisonment and, if so, whether the nature of the sentence should be altered in appeal so as to bring it in conformity with the intention of the trial Court. Accordingly, we requested the learned Government Pleader to appear and assist us and adjourned the further delivering of the judgment till today to enable him to do so. At the same time we issued a notice to the appellant who was present in Court to show cause why the sentences imposed upon him should not be enhanced and directed the appellant to be produced in Court today.

19. The learned Government Pleader has appeared today and made his submissions and we are indebted to him for his assistance. We now proceed to consider the law on this point.

20. Section 58 of the Indian Penal Code prescribes the punishment to which offenders are liable under the provisions of that Code, That section provides as follows :

53. Punishments.-The punishments to which offenders are liable under the provisions of this Code are -

First-Death;

Secondly .-Imprisonment for life ;

Fourthly .-Imprisonment, which is of two descriptions, namely :-

(1) Rigorous, that is, with hard labour ;

(2) Simple;

Fifthly .-Forfeiture of property ;

Sixthly .-Fine.

The third clause of Section 53 was repealed by the Criminal Law (Removal of Racial Discriminations) Act, 1949. The present second clause was substituted for the original by the Code of Criminal Procedure (Amendment) Act, 1955. The original second clause provided for transportation.

21. Thus, under the amended Section 58 there are three kinds of imprisonment to which an offender is liable; (1) imprisonment for life, (2) rigorous imprisonment, and (3) simple imprisonment. Imprisonment for life, which with effect from January 1, 1956 is substituted for the sentence of transportation, stands on a different footing from the other two kinds of imprisonment. Though the nature of life imprisonment is not specified in the section, by reason of its legislative history and the interpretation placed upon the old Clause (2) by the Privy Council in Kishori Lal v. Emperor , it has been held that 'imprisonment for life' means 'rigorous imprisonment for life' and it is, therefore, not necessary while imposing the sentence so to specify it. (See Urlikia v. State : AIR1964Ori149 , and the observations of the Supreme Court in G.V. Godse v. State of Maharashtra : 1961CriLJ736a ). The same reasoning, however, cannot apply to the remaining two kinds of imprisonment prescribed by Section 53. These two kinds of imprisonment are for a term of years and are expressly specified to be either rigorous or simple. Under Section 867(2) of the Criminal Procedure Code, the judgment of a trial Court is to specify the offence of which, and the section of the Indian Penal Code or other law under which, the accused is convicted and 'the punishment to which he is sentenced'. Section 60 of the Indian Penal Code confers upon the Court the power to direct in the sentence whether the sentence of imprisonment should be wholly simple or wholly rigorous or in part rigorous and in part simple. The nature of the imprisonment to be undergone by an accused must, therefore, be specified in the judgment itself. It cannot be specified for the first time in the warrant which the trial Court issues to the jailor under Section 883 of the Criminal Procedure Code for the execution of the sentence. That warrant has to be in conformity with the final orders embodied in the judgment of the trial Court. Clause (1) of the substituted paragraph 48 of the Criminal Manual (1960 edition, revised) issued by this High Court for the guidance of the Criminal Courts and officers subordinate to it, requires that before signing the warrant of commitment, the Judge or the Magistrate concerned should satisfy himself that the warrant is in conformity with the order passed and that all the material details are included therein. It is, therefore, not possible to construe the sentence passed by the learned Additional Sessions Judge by taking the aid of the warrant issued by him under Section 383 of the Criminal Procedure Code.

22. The question which now falls to be considered is the nature of the imprisonment which the appellant has been sentenced to undergo by reasons of this lacuna in the judgment. It is a fundamental principle of criminal jurisprudence that no man shall be subject to any punishment except in strict conformity with the requirements of law. If there is any ambiguity, doubt or defect in the sentence passed upon the accused, its benefit ought to go to the accused.

23. Formerly Judges took so strict a view of the matter that cases are to be found in old law reports where the judgment was declared invalid by reason of a formal defect in the pronouncement of the sentence. For instance, in R. v. Walcott (1694) 4 Mod 305: 87 E.R. 464, affirmed by the House of Lords in The King and Queen v. Walcott (1690) Shower P.C. 127, I E.R. 87 a writ of error was brought in the Court of King's Bench by a son to reverse an attainder for treason committed by his father on the ground that the formal judgment, though it provided for 'quod interior sua extra venture suum capiantur', omitted the words 'ipsocue Vicente conburentur'. In other words, the Court in sentencing the offender to be drawn, hanged and quartered, though it directed the removal of his entrails, had omitted to direct that they should be burnt while he was still alive. The attainder was reversed, the Court holding that 'when the law of England appoints a particular judgment for an offence, it is not in the power of the Judges to alter it, either by any addition or a diminution'. In Tynte v. The Queen (1845) 7 Q.B. 216 : 115 E.R. 469, the sentence of outlawry pronounced against the Duke of Wharton for not appearing to answer an indictment for treason was reversed at the instance of one of his descendants who claimed his barony 116 years after the sentence was passed on the ground of formal defects in the outlawry, the principal one being that contrary to the requirements of 8. 4 of statute 4 & 5 William & Mary c. 22 neither a proclamation had been made nor a writ of proclamation issued. Following upon this decision the Committee of Privileges of the House of Lords in The Wharton Peerage Claim (1844) 12 Cl. & F. 295: 8 E.R. 1419, upheld the claim of the successful challenger to be entitled to the barony. R. v. Hartnett and Casey (1840) 1 J C.C. 302, was a curious case which arose in Ireland a little earlier, In that case two prisoners were sentenced to death but the sentence omitted to specify that their bodies should be buried in the precincts of the gaol. The Case was referred to ten Judges, six of whom held that this omission rendered the judgment illegal and the prisoners were pardoned and discharged.

24. Fortunately, today such barbaric punishments as those under which the offender was outlawed or was drawn, hanged and quartered have become, along with the pillory, the thumbscrew and the rack, curiosities of legal history and, unlike the days in which those cases were decided, we have superior Courts possessing criminal appellate jurisdiction as well as criminal revisional jurisdiction and vested with ample powers in the exercise of both these jurisdictions.

25. Bearing in mind the cardinal principle of criminal jurisprudence that the benefit of any ambiguity or doubt must go to the accused and having regard to the amplitude of our powers, we find no difficulty either in interpreting the sentence passed upon the appellant or in envisaging the remedy to supply the lacuna in it. Under Section 53 of the Indian Penal Code, imprisonment for a term can only be of two kinds-simple or rigorous. Simple imprisonment is less severe of the two kinds of imprisonment. The sentence imposed upon the appellant must, therefore, be construed as being one of simple imprisonment only. The same construction was placed by a Division Bench of the Calcutta High Court in Sheikh Amir Ali v. Mathoo Sahoo (1907) 11 C.W.N. 740, which, though a case under Section 359 of the old Civil Procedure Code of 1882, appears to have been decided upon the same principle of adopting an interpretation more favourable to the accused,

26. We must, however, point out that the trial Court has no jurisdiction to rectify such an error either by supplying the omission in the warrant issued by it under Section 383 of the Code of Criminal Procedure for execution of the sentence or by reviewing the judgment or by a subsequent order. If the nature of sentence is altered so as to make it more severe, the sentence is enhanced. Rigorous imprisonment is more severe than simple imprisonment and to alter the nature of imprisonment from simple imprisonment to rigorous imprisonment is to enhance the sentence. Under the Code of Criminal Procedure, the power of enhancing sentence is vested only in the High Court in the exercise of its revisional jurisdiction under Section 439 or in the exercise of its appellate jurisdiction under Section 423(1A), in both the cases the exercise of this power being subject to the condition of an opportunity being afforded to the accused to show cause against such enhancement. Further, under Section 369 of the Criminal Procedure Code, once a criminal Court has signed its judgment, it cannot alter or review it, except to correct a clerical error. Imposition of a sentence or specifying the nature of imprisonment can by no stretch of imagination be brought under the head of 'clerical error'. After a judgment is signed, any subsequent attempt by the trial Court to supply an omission or rectify a defect therein to bring out the real intention underlying the sentence passed by it as, for example, specifying the description of imprisonment, would amount to altering or reviewing the judgment after it was signed. This it has no jurisdiction or power to do under Section 869 of the Criminal Procedure Code. The proper procedure in such a case, as pointed out in In Re Dhondi Nathaji Raut : AIR1921Bom368 , would be to submit the proceedings to the High Court and ask that Court, in its revisional jurisdiction, to enhance the punishment. In an appropriate case the State may itself invoke the revisional powers of the High Court or the High Court may exercise such powers suo motu. Where the High Court is already seized of the matter in an appeal against a conviction, the High Court can enhance the sentence under Section 423(1A), provided notice to show cause against such proposed enhancement has been given to the accused. To avoid situations such as this, we cannot too strongly emphasise the necessity of trial Courts being precise in the sentence they pass and specifying the nature of imprisonment which the accused is ordered to undergo.

27. In the present case, as mentioned above, we have, in order to effectuate the clear intention of the trial Court, issued the required notice to the appellant and ordinarily we would have acted upon such notice and enhanced the sentence by making it rigorous, this being the usual punishment for offences of which the appellant has been found guilty. The case of the appellant is, however, a pathetic one. We are informed that he is suffering from cancer of the stomach. The record itself bears out the he has been ailing for some time prior to 1964. The letter written by the appellant to his father (exh. 13), upon which the prosecution itself has relied, shows that as far back as April 1964 he was unable to retain any food. Police head constable Mahadeo Pathak who arrested the appellant has stated in his evidence that after the appellant was arrested, he became ill and had to be sent to the Sassoon Hospital for treatment. The written plea of guilty filed by the appellant in the committal Court states that while in custody he was operated upon for cancer. Taking these circumstances into consideration, we feel that this is a fit case in which we should show leniency and let the sentence as passed by the learned Additional Sessions Judge stand.

28. As the appeal has failed on merits, it will stand dismissed.

29. We discharge the notice for enhancement of sentence which we have issued. We, however, make it clear that the sentence of imprisonment on both the counts which the appellant has been ordered to undergo will be of simple imprisonment only. The warrant under Section 388 will stand amended accordingly.


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