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The State Vs. Babaji Galaji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 433 of 1961
Judge
Reported inAIR1963Guj222; 1963CriLJ262
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439
AppellantThe State
RespondentBabaji Galaji
Appellant Advocate H.M. Choksi, Govt. Pleader
Respondent Advocate N.C. Trivedi, Adv.
DispositionRevision allowed
Cases ReferredEmperor v. Jagat Singh
Excerpt:
- - hari singh, 14 cri lj 599 (lab), where it is observed that even when the order of the court below is clearly wrong, the high court should not interfere when the accused has already undergone the sentence of imprisonment or has paid the fine imposed upon him. that the practice of the court is not to enhance the sentence when the accused has completed his sentence of imprisonment except in exceptional circumstances as in the present case. no doubt, unless there are exceptional circumstances, a sentence of imprisonment which has been completely undergone should not be enhanced in revision. but there may be exceptional circumstances justifying such a procedure. in the instant case, i feel that there are such exceptional circumstances, which i have already referred to above:.....is clearly wrong, the high court should not interfere when the accused has already undergone the sentence of imprisonment or has paid the fine imposed upon him. it is also contended by the learned counsel for the opponent that under section 439, cr.p.c. a sentence which is not in existence cannot be enhanced; and he relies on emperor v. jagat singh', ilr 1 lah 453 : (air 1920 lah 213). in this case, it was observed as follows:'that the practice of the court is not to enhance the sentence when the accused has completed his sentence of imprisonment except in exceptional circumstances as in the present case.'in that very case, therefore, the learned judges of the lahore high court enhanced the sentence although the sentence of imprisonment had been completely undergone. the contention of.....
Judgment:
ORDER

V.B. Raju, J.

1. This is a criminal revision application bythe State for the enhancement of the sentence passed onone Babaji Galaji, who was convicted by the learned JudicialMagistrate, First Class, Ahmedabad, under Section 304A, I. P. C.and sentenced to two months' R. I. The prosecutioncase was that the opponent was driving his car at a rashspeed and ran over the boy.

* * * * *

4. There is, therefore, no doubt that the conviction of the opponent under Section 304A, I.P.C. for causing the death of the boy is correct. As regards the sentence, the offence took place on the road between Three-Gates and Bhadra, which is a very busy locality in Ahmedabad, and on a Diwali day. Instead of taking extra precaution an such a day and on such a road, the opponent drove his car at a rash speed. The fact that both the wheels of his car ran over the boy indicates the high degree of negligence and rashness. In the circumstances, the sentence of two months R. I. is certainty grossly inadequate. But the learned counsel for the opponent relies on Emperor v. Hari Singh, 14 Cri LJ 599 (Lab), where it is observed that even when the order of the Court below Is clearly wrong, the High Court should not interfere when the accused has already undergone the sentence of imprisonment or has paid the fine Imposed upon him. It is also contended by the learned counsel for the opponent that under Section 439, Cr.P.C. a sentence which is not in existence cannot be enhanced; and he relies on Emperor v. Jagat Singh', ILR 1 Lah 453 : (AIR 1920 Lah 213). in this case, it was observed as follows:

'That the practice of the Court is not to enhance the sentence when the accused has completed his sentence of imprisonment except in exceptional circumstances as in the present case.'

In that very case, therefore, the learned Judges of the Lahore High Court enhanced the sentence although the sentence of imprisonment had been completely undergone. The contention of the learned counsel for the opponent cannot be accepted because it would mean that if a convicted person is sentenced to pay a fine and the fine is paid, the sentence cannot at all be enhanced, whether by increasing the fine or by substituting a sentence of Imprisonment. There is nothing in the Criminal Procedure Code or in Section 439 of the Code to restrict the meaning of the word 'sentence' to mean a sentence which is still to be undergone. No doubt, unless there are exceptional circumstances, a sentence of imprisonment which has been completely undergone should not be enhanced In revision. But there may be exceptional circumstances justifying such a procedure. In the instant case, I feel that there are such exceptional circumstances, which I have already referred to above:

5. I, therefore, order that the sentence passed on the opponent be enhanced to rigorous imprisonment for sixmonths. The learned Magistrate will pass necessary ordersunder Section 442, Cr.P.C.


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