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Nanalal Harishanker Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 521 of 1967
Judge
Reported inAIR1969Guj62; 1969CriLJ389
ActsIndian Penal Code (IPC), 1860 - Sections 65, 71, 279, 337 and 338; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 260, 261, 261A, 261(1), 262, 262(2), 263, 264, 362 and 370; ;Ahmedabad City Courts Act, 1961 - Sections 14; Code of Criminal Procedure (CrPC) , 1882
AppellantNanalal Harishanker
RespondentState of Gujarat
Appellant Advocate R.K. Abhichandani, Adv.
Respondent Advocate J.U. Mehta, Asst. Govt. Pleader
DispositionAppeal partly allowed
Cases ReferredPoka v. Emperor
Excerpt:
criminal - separate sentences - sections 65, 71, 279, 337 and 338 of indian penal code, 1860 - whether separate sentences could be awarded for offences under sections 279 and 337 committed in course of same transaction - reference to precedents - two offences are distinct offences and objects framing said sections were also distinct - in case two offences committed in same course of transaction then section 71 governs assessment of punishment - punishment awarded should not exceed maximum punishment awardable for any one of these two offences. - - sohoni,in his book on criminal procedure code, page 1792, note 7, 16th edition, 1966. a perusal of the record of this case, clearly shows that the case was tried summarily. 54 of 1959. the words added were 'any presidency magistrate'.it is,..........ahmedabad. he has been convicted of offences, punishable under sections 279 and 337 of the indian penal code and sentenced to suffer four months' rigorous imprisonment and to pay a fine of rs. 500 and in default of payment of fine, to undergo three months' further rigorous imprisonment for the offence under section 279 of the indian penal code, and to suffer one month's rigorous imprisonment and to pay a fine of rs. 100 and in default of payment of fine, to undergo one month's further rigorous imprisonment for the offence under section 337 of the indian penal code. the substantive sentences are ordered to run concurrently. this order of conviction and sentences has been passed by the learned city magistrate, 4th court, ahmedabad, mr. b.j. shelat. paras 2-7. * * * *8. it has been.....
Judgment:

J.M. Sheth, J.

1. This is an appeal, filed by the appellant from the jail against the order of conviction and sentences, passed against him in a Summary Case No. 1151 of 1966 of the Court of the City Magistrate, 4th Court, Ahmedabad. He has been convicted of offences, punishable under Sections 279 and 337 of the Indian Penal Code and sentenced to suffer four months' rigorous imprisonment and to pay a fine of Rs. 500 and in default of payment of fine, to undergo three months' further rigorous imprisonment for the offence under Section 279 of the Indian Penal Code, and to suffer one month's rigorous imprisonment and to pay a fine of Rs. 100 and in default of payment of fine, to undergo one month's further rigorous imprisonment for the offence under Section 337 of the Indian Penal Code. The substantive sentences are ordered to run concurrently. This order of conviction and sentences has been passed by the learned City Magistrate, 4th Court, Ahmedabad, Mr. B.J. Shelat.

Paras 2-7. * * * *

8. It has been contended by the learned Advocate, Mr. Abhichandani that both these offences are similar and they are of a similar nature and hence, no separate conviction could be recorded for both the offences. In support of his argument, he relied upon the case of Ragho Prasad v. Emperor, AIR 1939 Pat 388. It has been observed therein as under :--

'Section 279 makes rash driving or riding on a public road punishable it such rash driving or riding endangers human life or is likely to cause hurt or injury to any person. Where the rash or negligent driving actually results in grievous hurt being caused to any person, an offence under Section 338 is committed and accused can be convicted under Section 338 but not both under Sections 279 and 338.'

In my opinion, with great respect to Agarwala J., the reasoning on which thatjudgment is based, is not quite sound. The offence under Section 279 is an offence against the public safety. That is the object of that Section. The object of Section 337 or Section 338 is to punish a person who commits such an act and his act causes hurt or grievous hurt to an individual person.

9. In the case of State v. Gulam Meer, AIR 1956 Madh Bha 141, a Full Bench of Madhya Bharat High Court has observed as under:--

'An offence under Section 279 is distinct from an offence under Section 337 or Section 338 and, therefore, a person convicted of an offence under Section 337 or Section 338 can also be convicted for an offence under Section 279. If, however, the two offences are committed in the same transaction, Section 71 will govern the assessment of punishment.'

A Division Bench of the Bombay High Court, in the case of State v. Kamalkar Prabhakar Juvekar, 61 Bom LR 1674--(AIR 1960 Bom 269) has also observed as under:--

'Where the accused is prosecuted for the offences under Sections 279 and 337 of the Indian Penal Code, 1860, the compounding of the offences under Section 337 of the Code will not prevent the prosecution from being continued under Section 279 of the Code.'

At page 1675 (of Bom LR) = (at p. 270 of AIR), the relevant observations mada are as under:--

'The offences under Sections 279 and 337, Indian Penal Code, are however, offences of different nature and the conduct referred to therein is penalised with different objects. An act, which is rash or negligent or is likely to endanger human life, may be the result of driving any vehicle or riding on a public way. Undoubtedly, the two sections overlap, but that does not, in our judgment, make those offences of the same character. The offence under Section 279, Indian Penal Code, is non-compoundable, and the compounding of the offence under Section 337, Indian Penal Code, will not prevent the prosecution from being continued under Section 279, Indian Penal Code .....

Mr. Nadkarni, for the accused, contended that whenever on account of rash or negligent driving simple hurt is caused to any other person, a charge under Section 337, Indian Penal Code, may be made, and if grievous hurt is caused, a charge under Section 338, Indian Penal Code, may be made against the accused and in neither case a prosecution for a charge under Section 279, Indian Penal Code, may be sustained. We are unable to accept this argument. If a person drives a vehicle or rides on a public way in a manner so rash or negligent as to endanger human life or to be likely to causehurt or injury to any other person, he commits an offence, against public safety. If, by so driving a vehicle or riding on any public way, he causes an injury to any other person, he also commits an offence punishable under Section 337, Indian Penal Code, and if he causes grievous hurl, he commits an offence punishable under Section 338, Indian Penal Code. If by such rash or negligent driving the accused has caused injury to some person, offences punishable under Sections 279 and 337, Indian Penal Code, will be committed, and acquittal of the offence under Section 337 or Section 338, Indian Penal Code, as a result of the compounding will still leave the charge under Section 279, Indian Penal Code, outstanding.'

I am in respectful agreement with the principle enunciated in this decision. Furthermore, I am bound by that decision, it being a decision given by a Division Bench of the Bombay High Court prior to the date of bifurcation of the Bombay State. I have also taken the same view in Criminal Appeal No. 993 of 1965, D/-31-7-1967 (Guj). I, therefore, reject this argument, advanced by Mr. Abhichandani that a separate conviction for both the offences could not be recorded in law.

10. His another argument was that at any rate no separate sentences can be awarded for these two offences, if they are committed in the course of the same transaction. Before I advert to that argument, I first propose to refer to his another argument. That argument of his was that this case was tried by a City Magistrate summarily. In view of the provisions of Section 262, Sub-section (2) of the Criminal Procedure Code, the case having been tried summarily by the City Magistrate, he cannot be awarded punishment in excess of three months. For the offence under Section 279, Indian Penal Code, the learned City Magistrate has awarded sentence of four months' rigorous imprisonment and a fine of Rs. 500. It is, therefore, evident that the substantive sentence awarded by him for that offence is in excess of three months. The learned Assistant Government Pleader, Mr. Mehta contended that the case may not have been really tried summarily. Only an old form, prescribed for a summary trial in the Criminal Procedure Code, 1882 was used. In view of the provisions of Section 370 of the Criminal P. C. the City Magistrate is empowered to record only the prescribed particulars thereunder instead of recording the judgment. He also invited my attention to Section 362 of the Criminal Procedure Code, which relates to maintaining the record of evidence in the Presidency Magistrate's Court. He also invited my attention to Section 260 of the Criminal Procedure Code and certain comments made by the learned Author Mr. Sohoni,in his book on Criminal Procedure Code, page 1792, Note 7, 16th Edition, 1966. A perusal of the record of this case, clearly shows that the case was tried summarily. There is absolutely nothing to indicate that there was a regular trial, and the case was not tried summarily. On the contrary, Ex. 2 shows that it is referred to as Summary Case No. 1151 of 1966. Heading 'A' is as under :--

'Register of cases tried by City Magistrate, 4th Court, Ahmedabad, in a summary way under Chapter XXII of the Criminal Procedure Code, (Act X of 1882).'

It may be that the old form may have been used, but it is shown as a summary case No. 1151 of 1966. The evidence of the witnesses examined, has not been separately recorded, as contemplated by Section 362 in the case of a regular trial by a City Magistrate. Only notes of evidence have been embodied. That Section 362 of the Criminal Procedure Code is subject to the provisions of Chapter 22. Chapter 22 deals with summary trials. It is, therefore evident that in a summary trial, if the case is tried summarily by a Magistrate in which the appeal lies, such Magistrate has to record substance of the evidence and also the particulars mentioned in Section 263. That appears to be the position from Section 264 of the Criminal Procedure Code and that is what is found in the record of the present case. It will also be significant to note that the offences in question were the offences not punishable with death, imprisonment for life or imprisonment for a term exceeding 6 months. In view of it, taking into consideration the provisions of Section 261-A of the Criminal Procedure Code, a City Magistrate has power to try these offences summarily. The comments made by the learned Author Mr. Sohoni, cannot be pressed into service in view of the provisions of the Code of Criminal Procedure, 1898. in its application to this State. In the Bigger Bilingual Bombay State, Clause A to Section 261(1) of the Criminal Procedure Code was added by the Bombay Amending Act, No. 54 of 1959. The words added were 'any Presidency Magistrate'. It is, therefore, evident that in the Bombay State, a Presidency Magistrate was also empowered to try cases summarily in respect of the offences referred to in Section 260 like other Magistrates of the First Class, specially empowered in that behalf. Same provisions are in force in this State of Gujarat. Section 14 of the Ahmedabad City Courts Act, 1961, indicates that any other Magistrate appointed under Sub-section (1) shall have and exercise within the limits of the City of Ahmedabad all the powers and jurisdiction of the Chief Presidency Magistrate and a Presidency Magistrate respectively under the Cr. P. C. and all other lawsfor the time being in force and the provision of that Code and such laws shall apply to such Chief Magistrate and Magistrate as they apply to the Chief Presidency Magistrate and a Presidency Magistrate and shall be construed accordingly. It is, therefore, evident that a City Magistrate can exercise all the powers that could be exercised by a Presidency Magistrate under the provisions of this Code in a Presidency town of Bombay. It is, therefore, evident that a City Magistrate was competent to try this case summarily in respect of these offences and he has tried it summarily. There is nothing to indicate that this case was tried regularly and not summarily. Sub-section (2) of Section 262 of the Criminal Procedure Code, 1898, clearly lays down that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this chapter. It is, therefore, evident that the order of sentence passed by the learned City Magistrate, sentencing the appellant to a sentence of rigorous imprisonment for a period of four months in respect of the offence, punishable under Section 279, is beyond his powers. He could not have awarded sentence of imprisonment in excess of three months. Another illegality committed by him is that he has awarded three months' rigorous imprisonment in case, there is a default in payment of fine of Rs. 500. The maximum sentence awarded for the offence under Section 279 of the Indian Penal Code, is 6 months. Section 65 of the Indian Penal Code runs as under:--

'The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.'

In the instant case, the offence was punishable with imprisonment as well as fine. It is, therefore, evident that he could not have awarded a sentence of more than 1 1/2 months, in case, there was a default in payment of fine. That illegality is also committed by him.

11. The learned Advocate, Mr. Abhichandani has also invited my attention to the case of Poka v. Emperor, (1909) 9 Cri LJ 23 (LB), which supports his contention that if the case was tried summarily, sentence awarded for the term of 6 months of imprisonment, was illegal. It has been observed in that decision that no sentence exceeding three months may be passed at a summary trial under Section 262 of the Criminal Procedure Code. A perusal of the language of Section also leaves no doubt about that position of law.

12. The only question that remains for consideration is whether separate senten-ces can be awarded for the offences under Sections 279 and 337 of the Indian Penal Code, if they are committed in the course of same transaction. It was contended by the learned Advocate, Mr. Abhichandani that no such separate sentences can be awarded. In support of his argument, he had relied upon the observations made by the Madhya Bharat High Court in the case of AIR 1956 Madh Bha 141, referred to by me in the earlier part of the judgment. After referring to two relevant Sections 279 and 337 of the Indian Penal Code, at page 144, para 15, a Full Bench of the Madhya Bharat High Court has made the following observations, which can be referred to, with advantage at this stage:--

'It will be seen that there are some rash and negligent acts which without anything more, are themselves offences. It is the rash or negligent manner of driving or riding that constitutes an offence under Section 279; it must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.

But for an offence under Section 337, rash or negligent driving or riding is not at all necessary. Any act which if done so rashly or negligently as to endanger human life or the personal safety of others, will make the doer of the act punishable under Section 337, Indian Penal Code if by that act any hurt is caused to some person. The rider or driver may be guilty of an offence under Section 279 from the very start of his journey, the hurt may be caused to some person after half an hour or after he had gone a distance of two to five miles.

In such a case, an offence under Section 279 would be complete much before the time when actual hurt is caused to somebody. Therefore, in my opinion, the two offences are quite distinct from one another and cannot be held to be related as genus and specie. I am, therefore, of opinion that a person can be convicted of an offence under Section 279 as well as of an offence under Section 337 of the Indian Penal Code at the same time.'

It is thus evident that the Full Bench of Madhya Bharat High Court has also found that these two offences are quite distinct offences and objects in framing those two sections are quite distinct. It has been observed thereafter as under:--

'Of course, if the two offences are committed in the same transaction, the assessment of punishment will be governed by the provisions embodied in Section 71 of the Indian Penal Code.'

It also, therefore, lays down that if these two offences are committed in the same transaction. Section 71 of the Indian Penal Code will govern the assessment of punishment. Section 71 of the Indian Penal Code runs as under :--

'Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are denned or punished, orWhere several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined a different offence,the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.'

In the instant case, therefore, the punishment awarded, taking into consideration the punishment that be awarded for both the offences, should not exceed the maximum punishment that be awardable for any one of these two offences. While that assessment has got to be made, if both these offences are committed in the course of same transaction, but it does not indicate that no separate punishment can be awarded for both these offences, and if it is awarded, it is illegal

13. * * * * * *


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