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The Indian Penal Code
Section 386 in The Indian Penal Code
Section 477 in The Indian Penal Code
Section 406 in The Indian Penal Code
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Patna High Court
Brajesh Choudhary vs The State Of Bihar And Anr. on 10 July, 2006
Author: C K Prasad
Bench: C K Prasad

JUDGMENT

Chandramauli Kr. Prasad, J.

1. On the basis of a report given to the Police, Muzaffarpur Town P.S. Case No. 57 of 2002 was registered against the petitioner and other accused persons. According to the first information report, opposite party No. 2- accused who happened to be the Manager of the Muzaffarpur Branch of the Carryco Transport Company in criminal conspiracy with his brother and wife committed defalcation of more than Rs. 1 crore by fabricating and falsification of account.

2. The police, after investigation submitted charge sheet and the accused was ultimately put on trial for offence under Section 406, 408, 120B, 420, 468, 471 and 477 of the Indian Penal Code, for short 'IPC'. Accused appeared and pleaded his guilt and admitted misappropriating a sum of Rs. 1 crore by interpolating the accounts of the Company. On his admission of guilt, the learned Magistrate, by order dated 30th June, 2003 passed in Trial No. 1353 of 2003 (G.R.No. 377 of 2002), held him guilty under Section 406, 408, 120B, 420, 468, 471 and 477 of the IPC and sentenced him to undergo rigorous imprisonment for one year each for offence under Section 406, 120B, and 471 of the IPC. The learned Magistrate also sentenced him to undergo rigorous imprisonment for one year ten days under Section 408, 420, 468 and 477 of the IPC and also inflicted fine of Rs. 250/ each for each of the offences excepting Section 477 of the IPC for which a fine of Rs. 500/ was imposed. In default of payment of the fine the accused was to suffer simple imprisonment for twenty days. Sentences were directed to run concurrently.

3. Aggrieved by the inadequacy of sentence, the informant has preferred this application.

4. Mr. S.D. Sanjay, appearing on behalf of the informant-petitioner, submits that in the facts of the present case, the sentence awarded to the accused is inadequate and as such, same deserves to be enhanced by this Court so as to make the same proportionate to the gravity of the offence.

5. Mr. P.N. Pandey, Senior Advocate, appearing on behalf of the accused-opposite party No. 2, submits that the question of sentence is within the domain and discretion of the trial court and the accused having pleaded his guilt, it is not a fit case in which the sentence awarded to the accused deserved to be enhanced. It has been vaguely suggested that this Court, at the instance of the informant, can not go into the question of inadequacy of sentence. It is pointed out that as the State Gover nment having not chosen to take recourse to the remedy under Section 377 of the Code of Criminal Procedure, hereinafter referred to as 'the Code' which confers right on the State government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy, enhancement of sentence at the instance of the informant is absolutely uncalled for.

6. In answer thereto, Mr. Sanjay submits that under Section 406 of the Code, all the powers conferred on a court of appeal under Section 386 of the Code, besides other sections, are available to the High Court while exercising the power of revision. He points out that by Section 386(c)(iii) of the Code, the appellate court has been conferred with the power to enhance or reduce the sentence and as such, the High Court, while exercising the power of revision, can enhance the sentence.

7. In view of the stand taken, the first question which arises for determination is as to whether this Court, while exercising its power of revision, can enhance the sentence awarded by the trial court. This necessitate examination of the scheme of the Code. Section 397 of the Code confers power to the High Court to call for and examine the record of any proceeding before any inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality and propriety of various kinds of orders passed by the inferior court. Section 401 of the Code confers power of revision to the High Court which reads as follows:

401. High Court's powers of revision.-

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

From a plain reading of Section 401(1) of the Code, it is evident that the revisional power of High Court includes the powers conferred on a Court of Appeal by Section 386 of the Code. In view of aforesaid what is to be seen is the nature of power conferred on a Court of Appeal under Section 386 of the Code. Section 386(c)(iii) of the Code which is relevant for the purpose, reads as follows:

386. Powers of the Appellate Court.-

(c) in an appeal for enhancement of sentence-

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same.

xxx xxx xxx

From a reading of Section 386(c)(iii) of the Code it is evident that the Court of Appeal possesses power to enhance or reduce the sentence. Hence, from the conjoint reading of Section 397, 401 and 386 of the Code, I am of the considered opinion that this Court, while exercising the power of revision can enhance the sentence, if it is satisfied that the same is inadequate. Reference in this connection can be made to a decision of the Supreme Court in the case of Eknath Shankarrao Mukhawar v. State of Maharashtra in which it has been held as follows:

6. We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code.

Having said so, the next question which needs consideration is as to whether the sentence awarded on the accused is proportionate to the gravity of offence.

Mr. Pandey, highlights that the trial court has inflicted the sentence on the admission of the accused and in case, one considers this admission, the sentence cannot be said to inadequate. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmadabad and Ors. and my attention has been drawn to paragraph No. 18 of the judgment which reads as follows:

18.- The trial Magistrate in this case has properly considered all aspects including the plea of guilty and given good reasons for awarding 4 years R.I. That means in all, the appellant has to undergo 11 years of imprisonment. That by itself is quite long enough in a man's life. But the High Court took a narrow view of the whole matter with the enormity of the crime on the forefront. The broad expanse of discretion left by legislation to sentencing Courts should not be narrowed only to the seriousness of the offence. No single consideration can definitively determine the proper sentence. In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence. In consecutive sentences, in particular, the Court cannot afford to be blind to imprisonment which the accused is already undergoing.

Reliance has also been placed on a decision of the Supreme Court in the case of Kirpal Singh v. State of Haryana (1999) 5 SCC 649 and my attention has been drawn to paragraph No. 4 of the judgment, which reads as follows:

4. - The petitioner would have succeeded in his plea-bargain by getting the minimum sentence prescribed by law and that is what the High Court has granted. Neither the trial court nor the High Court has jurisdiction to bypass the minimum limit prescribed by law on the premise that a plea-bargain was adopted by the accused. We are unable to agree with the learned Counsel that the accused would have thought that the Court would give him punishment even less than what is prescribed by law as the minimum.

I do not find any substance in the submission of Mr. Pandey and the authorities relied on in no way support his case. In my opinion, merely the fact that the accused has pleaded guilty, shall not itself absolve him from the rigor of the sentence.

8. It is well settled that nature of sentence should depend upon the facts and circumstances of each case having regard to various factors including nature of offence and the manner in which its is executed or committed. While considering the question of sentence, the aggravating and mitigating factors are to be properly balanced. The object of sentence being to protect the society and to deter the criminal, social impact of the crime and effect of the sentence on the social order, are relevant considerations. In other words, sentence should reflect conscience of the society.

9. In the background of the aforesaid settled legal position, one is required to consider as to whether sentence awarded is proportionate to the gravity of offence.

10. Here the accused has been convicted and sentenced for offence under Section 406, 408, 120B, 420, 468, 471 and 477 of the IPC. Section 406 of the IPC provides sentence to the extent of 3 years imprisonment, whereas Section 120B of the IPC provides the same sentence as that of the main offence. Rest of the Sections, i.e. is, Section 408, 420, 468, 471 and 477 of the IPC provide for maximum sentence of 7 years and fine also. The legislature having provided the aforesaid sentence and conferred discretion on the court, in the facts of the present case, in my opinion, the discretion exercised by the trial court in sentencing the accused does not commensurate with the gravity of allegation.

11. There is misconception that fine can not be awarded in case it is not part of sentence or compensation can only to, extent of maximum fine provided under law. There is no doubt that in case the convict undergoes the sentence imposed in lieu of fine, amount of fine can not be recovered but in my opinion it is not mandatory, to award substantive sentence in default of fine. Section 357 of the Code confers power to award compensation to victims of crime. Section 431 of the Code provides for recovery of any money other than fine payable by virtue of any order, as if it is a fine.

12. Here, the accused, a Manager in the Company, had misappropriated approximately a sum of Rs. 1 crore by interpolating, tampering and fabricating the accounts of the Company. He held the position of trust, which he betrayed with impunity. If he is let off with such a lenient punishment, it shall encourage crime of such nature. The sentence awarded by the trial court, in my opinion, does not reflect the conscience of the society and does not fulfill the object of sentence which is to protect the society and to deter the criminal.

13. Taking into consideration the facts and circumstances of the case, although I maintain the sentence of the accused under Section 406, 1208 and 471 of the IPC, but enhance the sentence under Section 408, 420, 468 and 477 of the IPC to rigorous imprisonment for five years each and award compensation of Rs. 50 (fifty) lacs which shall be paid to the Informant Company by way of compensation. The sentences shall run concurrently and the period for which petitioner remained in custody during trial shall be set off.

14. In the result, this application is allowed, the sentence awarded to the accused is enhanced as aforesaid.