1. On 1-8-1951 Ujagar Singh a boy of about 12 years of age had gone out to graze his cattle. The accused Kangan who is a Muslim Gujar aged about 30 years was also grazing his cattle there. Some row took place between Ujagar Singh and Kangan regarding trespass of cows and it is said that Ujagar Singh was given a beating by Kangan. In the evening Ujagar Singh came home and complained about the matter to his aunt Bachni. Bachni asked the accused as to why he had given beating to her nephew. The accused appears to have said that he would give him more beating and hit Bachni on the leg with a 'dang'. Bachni's son Kartar Singh came out and tho accused and Kartar Singh grappled with each other the result of which was that the accused was given ten injuries. Bachni was examined by a doctor who found that there was a contusion mark on her leg and the tibia bone was fractured. This is the only injury which because of the fracture is a grievous injury. The Magistrate believed the story but having regard to the nature of the quarrel and of the fact that the accused had received sufficient punishment from Bachni's son Kartar Singh, he sentenced the accused to pay a fine of Rs. 100/- though he convicted him. under Section 325, Penal Code. Thereupon there was a revision taken to the Sessions Judge, Ludhiana, who recommended the case for enhancement of sentence on the ground that under Section 325 it is obligatory on the Court convicting the accused to sentence the accused to a term of imprisonment to which a fine may or may not be added.
2. Mr. Gandhi in support of the reference has said that the punishment of imprisonment being imperative it was the duty of the Magistrate to impose a substantive sentence of imprisonment in addition to the fine of Rs. 100/-which he had imposed on the accused. The conviction of the accused was on 29-10-1951. The reference by the Sessions Judge is dated 22-3-1952 and today is the 25th of November 1952. After such a long delay, I would not Jike to enhance the sentence to one of imprisonment. Moreover, the enhancement of the sentence in such cases is not always done. Sir Shadi Lal in a ruling reported in -- 'Emperor v. Hari Singh', 1913 Pun i, R 313 (A) referred to a case of -- 'Empress v. Chuni Lal', 7 Pun Re 1889 (Cr) (B), in which Sir Meredyth Plowden stated the principle on which the Chief Court acted as a Court of revision in relation to the enhancement of sentences. Sir Meredyth Plow-den made the important observation that the Court is in particular slow to interfere where interference involves imprisonment of persons already discharged from jail though this circumstance was no insuperable difficulty. There are a number of other authorities in which it has been held that though an illegality of the kind has been committed it is not obligatory on the High Court to interfere in revision. The authorities to which reference may be made are of Skenip J. in -- 'Emperor v. Ghani Shah', AIR 1937 Lah 131 (C), of a Division Bench of Allahabad Court reported in -- 'Bisheshar v. Rex', AIR 1949 All 213 (D) and of a Division Bench of Patna High Court reported in -- 'Ramchander Rai v. Ram Belas', AIR 1933 Pat 179 (1) (E). In the last mentioned case the Patna High Court said :
'Notwithstanding that the sentence was irregular we shall not interfere under our re visional powers which are intended for the redress of genuine grievances and not of mere formal defects.'
The only case to which Mr. Gandhi made reference and in which the High Court enhanced the sentence was -- 'In re Venkata Subbayya', AIR 1942 Mad 550 (F) but it is to be noticed that in that case the learned Judge, who decided the case, held that the sentence inflicted in that particular case was inadequate.
3. Coming to the present case, we find thatthe incidents of this nature are of commonoccurrence and in the present case substantialpunishment was given to the accused byBschni's son Kartar Singh who gave him sufficient beating. This beating was taken into account by the Magistrate when he sentencedthe accused to a fine only. The occurrence took place, as I have said before, on 1-8-1951 and on25-11-1952 I am not prepared to sentence theaccused to undergo imprisonment in the circumstances of the present case. I, therefore, reject the reference.