Mohammad Sabir Vs. the State of Maharashtra - Court Judgment

Excerpt:
- - that condition having been satisfied, it would have been within the power of the trial magistrate to pass an order under section 17 of the motor vehicles act, 1939. the pertinent question, however, is whether when the trial magistrate has not so done and when the sessions judge has added that part, it is an enhancement of the sentence. it was argued that the order of suspension of the driving licence was merely an executive act and not a part of the judicial punishment, because the suspension of a licence is not mentioned as one of the punishments which can be inflicted under the penal code, this may well be, but the list of punishments given in section 53, penal code, is not exhaustive. it does not include a sentence of imprisonment for failure to surrender to bail (r v.orderdighe, j.1. a subtle point arises for determination in this case and that is as regards the meaning of the expression 'enhancement of the sentence'. the petitioner mahomed shabir was proceeded against under section 279 of the i.p.c. the judicial magistrate, first class, 8th court, nagpur, found him guilty and sentenced him to pay a fine of rs. 100 or in default to undergo simple imprisonment for 15 days. in the application for revision presented to the sessions judge, nagpur, following order is passed:the petition is dismissed, a copy of this judgment be sent to the r.t.o. nagpur for cancellation of the driving licence of the accused for a period of six months.the present application is given under section 482 of the cr.pc 1973 for deleting the order directing the sending of judgment.....

Judgment:
ORDER

Dighe, J.

1. A subtle point arises for determination in this case and that is as regards the meaning of the expression 'enhancement of the sentence'. The petitioner Mahomed Shabir was proceeded against Under Section 279 of the I.P.C. The Judicial Magistrate, First Class, 8th Court, Nagpur, found him guilty and sentenced him to pay a fine of Rs. 100 or in default to undergo simple imprisonment for 15 days. In the application for revision presented to the Sessions Judge, Nagpur, following order is passed:

The petition is dismissed, A copy of this judgment be sent to the R.T.O. Nagpur for cancellation of the driving licence of the accused for a period of six months.

The present application is given Under Section 482 of the Cr.PC 1973 for deleting the order directing the sending of judgment to the R.T.O. Nagpur. It is contended that since the trial Court had not passed such an order, it was not open to the Sessions Judge in revision to add to the order as it amounts to enhancing the sentence of which no notice was served on the petitioner.

2. Incidentally it may be noted that this revision application was disposed of on 5-1-1976 when there was no appearance on behalf of the petitioner when the matter was called out. In a subsequent application for restoration my colleague Justice Gandhi has restored the original application. Fresh judgment will have, therefore, to follow on hearing both the parties,

3. The learned Sessions Judge to whom the revision petition was presented was exercising his powers Under Section 399 of the Cr.PC 1973. He could, therefore, exercise the powers detailed in Section 401 of the Code. That section in turn refers to the exercising the powers conferred Under Sections 386, 389, 390 and 301. Section 386 is the relevant section which lays down that the Court if it considers that there is no sufficient ground for interfering, may dismiss the appeal. Alternatively as provided for in Clause (b), sub-cls. (i), (ii) and (iii) it was open to the Sessions Judge to reverse the finding and sentence and to acquit or discharge the accused or to order retrial or to maintain the sentence or with or without altering the finding alter the nature and extent of the sentence. Sub-cl. (iii) of Clause (b) however provides that such alteration ought not to amount to enhancement of the sentence. Clause (d) of Section 386 also empowers the Court to alter or reverse the order and Clause (e) allows making amendment or any consequential or incidental order that may be just or proper. However, there is a proviso to Clause (e) that sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement.

4. In the particular case the sentence passed by the trial Magistrate is maintained, but there is an addition giving direction to the R.T.O. Nagpur for cancelling the licence of the accused for a period of 6 months. That is to say, the direction is given to disqualify the present petitioner. There is surely an alteration or an addition to the order passed by the trial Magistrate. If it amounts to enhancement of sentence, it was not within the revision powers of the Sessions Judge to do it because no such notice was given to the petitioner. It is contended on behalf of the petitioner that the addition part does amount to enhancing the sentence, whereas it is maintained by Mr. Garud for the State that it is an incidental or consequential order not amounting to any enhancement,

5. In this connection, Mr. Garud invites my attention to the Motor Vehicles Act (No. 4 of 1939), Sections 15 and 17. As per Section 17 power is given to the Court to disqualify a person who is convicted of an offence under the Motor Vehicles Act or of an offence in the commission of which a motor vehicle was used. This would be in addition to imposing any other punishment authorised by law. The present prosecution was Under Section 279 of the I.P.C, simpliciter without there being any charge under any sections of the Motor Vehicles Act. However, Section 17, as it stands, enables the Court to disqualify the convict even when in the commission of the offence a motor vehicle was used. That condition having been satisfied, it would have been within the power of the trial Magistrate to pass an order Under Section 17 of the Motor Vehicles Act, 1939. The pertinent question, however, is whether when the trial Magistrate has not so done and when the Sessions Judge has added that part, it is an enhancement of the sentence.

6. On behalf of the State, Mr. Garud has a two-fold answer. In the first place by looking to the wording of the added part he says that the Court has not passed any order disqualifying the petitioner and hence according to him, the objection is not maintainable. In the second place, he says that the user of the power to disqualify is not in the nature of a sentence or punishment so that it cannot amount to an enhancement of the sentence.

7. As regards the first part, I find myself difficult to uphold the contention of Mr. Garud. It is no doubt true that the learned Judge himself has not passed any order disqualifying the accused. He has directed the papers to be sent to the R.T.O. Nagpur. But it is important to notice that there is no discretion left for taking such action as the R.T.O. authorities may feel proper. Their direction or their appreciation is as if taken away by adding to the direction what they should do and for what period the licence should be cancelled. This having been indicated, they have only to do the clerical work and hence although the order is apparently in terms giving directions, in my opinion, it substantially amount to passing an order for disqualification.

8. As regards the main aspect, Mr. Garud invited my attention to Section 53 of the I.P.C. laying down different types of punishments. 'Disqualification' is not listed there, the other punishments being death, imprisonment for the, rigorous and simple imprisonment, forfeiture of property and fine. It stands to reason that the present disqualification could not be taken as forfeiture of property because the order does not direct cancellation of the licence permanently. Question, however, would be whether the punishments as listed therein could be taken as the whole concept of the word 'sentence'. If we refer to Section 354 of the Cr.PC it speaks of the contents of a judgment. Sub-clause (c) of Sub-section (1) of that section shows that when the accused is convicted the punishment to which he is sentenced is to be indicated. If we refer to definitions given in Section 2, Clause (y) provides that words and expressions used in the Cr. P. C and not defined, but defined in the I.P.C have the meanings as given in the I.P.C. The Penal Code also does not define 'sentence', though 'punishment' has been classified and categorised.

9. The dictionary meaning of 'punishment' is, that which is inflicted as a penalty, vide the Shorter Oxford English Dictionary. Chambers' Twentieth Century Dictionary gives the meaning of 'punishment' as an act or method of punishing; penalty imposed for an offence and punishing is defined as causing suffering or retribution. Under the dictionary meaning, therefore, 'disqualification' would be included in a punishment.

10. In this connection we can refer to Garanand Singh v. Emperor AIR 1933 Rang 329 : 35 Cri LJ 116. It was a case where there was an order inflicting fine and suspension under the Motor Vehicles Act. Citation at page 330 (of AIR): (at p. 117 of Cri LJ) is as follows:

In the case of convictions under the Motor Vehicles Act, in many cases an order of suspension of a driving licence is much more serious part of the punishment than a sentence of the fine. It was argued that the order of suspension of the driving licence was merely an executive act and not a part of the judicial punishment, because the suspension of a licence is not mentioned as one of the punishments which can be inflicted under the Penal Code, This may well be, but the list of punishments given in Section 53, Penal Code, is not exhaustive. Other punishments besides those mentioned in the section can be inflicted by Criminal Court in certain cases, e.g. whipping, detention in a Borstal Institute or a Training School etc.'

Among the several meaning of the word 'sentence' given in Law Lexicon by P. R. Aiyer, the following is worth noticing:Sentence' as the term is used in criminal law, is the appropriate word to denote the action of the Court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.

Therefore, any consequence which flows after conviction can be looked upon as sentence. Consequently, disqualification would come within the expression 'sentence.'

11. In Stroud's Judicial Dictionary, Fourth Edition, 'sentence' is defined as follows:

'sentence' is defined in Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), Section 21 as amended by Criminal Justice Act, 1967 (c, 80), Such. 4, para 8, on which see R. v. Jones (1920) 1 KB 211. It includes any order of the court made on conviction; it does not include a sentence of imprisonment for failure to surrender to bail (R v. Harman 1059 2 QB 134 see also Criminal Appeal (Scotland) Act 1926 (16 & 17 Geo. 5,c. 15), Section 18.

The natural meaning of the word 'sentence' therefore, would show that disqualification which is a consequence upon the conclusion of the guilt and an order passed on conviction should amount to sentence.

12. Mr. Garud, however, relies upon the decision reported in In Re. K. V. Subramania Ayyar AIR 1945 Mad 27 : 46 Cri LJ 300. That was a case where the petitioner was convicted by the First Class Magistrate Under Sections 78, 86 and 116 of the Motor Vehicles Act and sentenced to pay a fine amounting in all Rs, 45. He was also disqualified for 3 months for holding a driving licence Under Section 17 (1) of the Act. An appeal was taken to the Sessions Court Under Section 17 (7) of the Act when the order of disqualification was set aside. However, the learned Judge also held that no appeal lay against the conviction. Challenging that view, a revision petition was presented. It was contended before the High Court that Under Section 413 of the Cr.PC 1098, when there is a sentence of fine not exceeding Rs. 50, no appeal could lie, but when there was an addition to the fine in the nature of the order of disqualification, the appeal did lie Under Section 408 of the Code. This argument was repelled by saying that the punishment which has to be specified Under Section 367 (2) of the Cr.PC cannot include an order of disqualification for holding a licence. Recourse was taken to Section 17 (1) of the Motor Vehicles Act, the language of which showed, that imposition of an order of disqualification was in addition to any other punishment. Mr. Garud adopts the same reasoning. In fact he supplements it by saying that the power to disqualify is not a punishment because such power Under Section 15 of the very Act is also exercisable by the licensing authorities and that exercise could not be looked upon as inflicting punishment.

13. Although there are specific provisions for proceeding further in appeal after disqualification order is passed Under Section 17 of the Motor Vehicles Act, if disqualification is a sort of penalty, a fetter against what would have normally happened, it is not known why it should not be looked upon as punishment whether the disqualification is entailed while exercising the powers Under Section 17 or Section 15. In this connection, Mr. Abid Ali for the petitioner relied upon the further observations in Garanand Singh v. Emperor AIR 1933 Rang 329 : 35 Cri LJ 116 (supra). It was held that the order of suspension of licence was a part of the sentence. Relevant observations are as follows (at pp. 117-118 of Cri LJ):

Under Section 18 (2), Motor Vehicles Act, when a person is convicted of an offence against the provisions of the Act, or any rule made thereunder, etc., the Court by which the person is convicted may exercise certain powers with regard to the person's licence. To that extent interference with his licence may be regarded as an executive act, but the court only gets the right to take this executive action by reason of the fact that the man has been convicted by it; and, after all, sending a man to prison is itself an executive act which the Court is empowered to perform by reason of the fact that the Court has convicted the prisoner before it of an offence punishable with imprisonment.

14. We might also usefully refer to the decision of the Allahabad High Court reported in Matroo Khan v. State (1061) Cri LJ 593. Applicant Matroo Khan was convicted Under Section 26 read with Section 5 of the Indian Forest Act and was sentenced to a fine of Rs. 500, in default with a further punishment. The Court in appeal for the first time awarded compensation in addition to the fine imposed by the trial Court was taken as amounting to enhancement of sentence. The observations in this connection on page 594 are as follows:

The appellate court observed that 'since however the section also contemplated the award of compensation to the Forest Department, the appellant is directed to pay a sum of Rs. 2,500 to the State Forest Department as compensation.... The powers of the appellate court, when hearing an appeal, are circumscribed by the provisions of Section 423 Cr.PC Section 423 Cr.PC has not given any power to the Sessions Judge to enhance the sentence of an offender. If the Sessions Judge feels that the sentence awarded to the offender is inadequate, he can only make a reference Under Section 438 Cr.PC but on his own he cannot enhance the sentence.

That the award of this compensation amounts to punishment and also to an enhancement of sentence cannot be doubted....

15. It appears that the Madras High Court considered the sentence of disqualification for the purpose of finding whether because of its addition an appeal could lie. For that purpose only substantive sentence was viewed. Looking however to the plain meaning of the word 'sentence' and relying upon the decisions of the Rangoon and Allahabad High Courts quoted above, I would respectfully agree with the view that the addition of the clause in the sentence relating to disqualification ought to be looked upon as the enhancement of the sentence.

16. The word 'enhancement' has been shown in the Chambers's Twentieth Century Dictionary, 1972 Edition, as an adjective from the word 'enhance' which means to heighten; to intensify; to add to; increase. In that derivative sense the added disqualification ought to be looked upon as an enhancement of the, sentence. Without giving notice to the petitioner for such contemplated enhancement and the order passed without discussing the reasons only by way of an addition to the order of dismissal, cannot be sustained.

17. No other point was argued. Hence the following order is passed.

The petition is allowed. The clause added in the order after the words 'The petition is dismissed' is deleted. The effective order maintained is that 'the petition is dismissed,'