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Babulal Chhotalal Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 812 of 1966
Judge
Reported inAIR1968Guj240; 1968CriLJ1274
ActsIndian Penal Code (IPC), 1860 - Sections 71, 279, 337 and 338; Code of Criminal Procedure (CrPC) , 1898 - Sections 2
AppellantBabulal Chhotalal
RespondentState of Gujarat
Appellant Advocate G.D. Bhatt, Adv.
Respondent Advocate K.M. Chhaya, Asstt. Govt. Pleader
Cases ReferredChampa v. Emperor
Excerpt:
- (1) the appellant was convicted under section 279 and 338 of the indian penal code and given separate sentences. it was ordered that the substantive sentences of imprisonment should run concurrently.(2) the first argument of the learned counsel for the appellant is that the offence under section 338 of the indian penal code includes the offence under section 279 of the indian penal code and therefore separate sentences should not be given, and reliance was placed on ragho prasad v. emperor, air 1939 pat 388, which relied on champa v. emperor, air 1928 pat 326.(3) section 235 of the criminal procedure code reads as follows:--'235 (1) if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged.....
Judgment:

(1) The appellant was convicted under Section 279 and 338 of the Indian Penal Code and given separate sentences. It was ordered that the substantive sentences of imprisonment should run concurrently.

(2) The first argument of the learned counsel for the appellant is that the offence under Section 338 of the Indian Penal Code includes the offence under Section 279 of the Indian Penal Code and therefore separate sentences should not be given, and reliance was placed on Ragho Prasad v. Emperor, AIR 1939 Pat 388, which relied on Champa v. Emperor, AIR 1928 Pat 326.

(3) Section 235 of the Criminal Procedure Code reads as follows:--

'235 (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trail for, each of such offences.

(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(4) Nothing contained in this section, shall affect the Indian Penal Code Section 71'

In view of the provision of sub-section (2) of Section 235, Cr. P. C., a person can be charged, tried and convicted under both Ss. 279 and 338 of the Indian Penal Code. As regards the question of sentences, Section 71 of the Indian Penal Code reads as follows:--

'71. 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 with in two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

Where 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'

(4) The question is whether in the case of an offence under Section 279 and Section 338 of the Indian Penal code, the offence is made up of parts, any of which parts is itself an offence, falling under the other section. Sections 338 and 279 of the Indian Penal Code read as follows:

'338. Whoever causes grievous hurt to any person by doing any Act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a terms which may extend to two years or with fine which may extend to one thousand rupees, or with both.

279. Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both'.

None of the parts of the offence defined in Section 338 of the Indian Penal Code is sufficient to constitute an offence under Section 279 of the said Code, because under Section 279, the ingredient of driving any vehicle or riding on a public way is essential, which is not necessary under Section 338. The offence under Section 338 of the Indian Penal Code need not to be committed by driving a vehicle or riding on a public way and therefore Section 71, I. P. Code cannot be applied to Sections 338 and 279, I. P. Code. In AIR 1928 Pat 326, it is stated that it was admitted by the Crown that the learned Assistant Sessions Judge erred in imposing separate sentences where the acts constituting the offences under Section 354 and 342 form part of the same transaction. A Judge, even if the happens to be a subordinate Judge cannot be wrong simply because the Crown counsel admits that he is wrong. The learned Judges of the Patna High Court have given no reasons why separate sentences should not be imposed in such a case. For the reasons given above, with great respect, I differ from the view taken by the Patna High Court simply on the admission of the Crown counsel. The proposition laid down in AIR 1928 Pat 326 and AIR 1939 Pat 388, that the imposition of separate sentences is not justified where the acts constituting different offences form a part of the same transaction , if accepted, would result in holding that if an accused person commits several offences in the course of the same transaction, he should be given one sentence. With great respect, I take a different view from this view. A Full Bench of the Madhya Bharat High Court in AIR 1956 Madh Bha 141 (FB), held that 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 I am in respectful agreement with this view for the reasons stated above. But the Madhya Bharat High Court proceeded further and observed that if the two offences are committed in the same transaction, Section 71 will govern the assessment of punishment. In view of the first observation of the Madhya Bharat High Court, Section 71 would have no application to such a case, even if the two distinct offences are committed in the same transaction, unless one of the two distinct offences includes the other. The offence under Section 279 does not include the offence under Section 338 or Section 337, nor does the offence under Section 337 or Section 338 includes the offence under Section 279, because as I have already stated, the ingredient of driving a vehicle or riding on a public way is not included in Section 337 and Section 338, and with great respect, I do not accept the second proposition by the Madhya Bharat Full Bench.

(5) No other point is urged. The appeal is, therefore, dismissed.

(6) Appeal dismissed.


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