Ram Niwas vs State of U.P.

Prafulla C. Pant, J.—This revision, preferred u/s 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 22.6.1999, passed in Criminal Appeal No. 14 of 1996 by the then learned IIIrd Additional Sessions Judge, Nainital, whereby conviction passed by the trial court was upheld under Sections 468 and 471 of the Indian Penal Code, 1860 and the sentence of three years imprisonment was enhanced to five years and fine was also enhanced from Rs. 1,000 to Rs. 5,000. However, in the appeal, the Appellant (present revisionist) was acquitted by the appellate court from the charges under Sections 419 and 420 of Indian Penal Code, 1860 (for brevity I.P.C.) but convicted him u/s 417 of the aforesaid Code and sentenced one year''s rigorous imprisonment and a fine of Rs. 5,000 in default of payment of which it was directed that he was to undergo further three months rigorous imprisonment.

In brief, the prosecution story is that the accused/revisionist-Ram Niwas, got himself recruited as Constable in the Armed Police in U.P. on 5.12.1982 on the basis of a forged High School certificate, bearing roll number 358577 of 1977, showing date of birth of the revisionist as 5.1.1962. After his recruitment, on 4.7.1985, a complaint was received by Senior Superintendent of Police, Nainital, wherein it was disclosed that revisionist-Ram Niwas had got recruited on the basis of a forged certificate. It was further mentioned in the complaint that he has passed only Vth Standard. It was also alleged in said complaint that the revisionist was indulged in carrying on a trade of selling cartridges of revolvers in an unauthorized manner. After the preliminary inquiry on said complaint, it was found that revisionist Ram Niwas has neither issued any certificate as filed by him nor he has passed High School from Ram Krishan Vidyalaya Mandir, Inter College, Chandpur, Azamgarh. On this, a first information report was lodged against the revisionist Ram Niwas on 27.9.1985 with police station Tallital, Nainital. And after investigation, a charge-sheet was submitted against him for his trial relating to the offences under Sections 468, 471, 419 and 420 of Indian Penal Code, 1860. Learned Chief Judicial Magistrate, Nainital, tried the accused and found him guilty of offences punishable u/s 468, 471, 419 and 420 of the aforesaid Code and sentenced him to three years rigorous imprisonment u/s 468 of Indian Penal Code with fine of Rs. 1,000, three years rigorous imprisonment u/s 471 of I.P.C. with fine of Rs. 1,000, one year''s rigorous imprisonment u/s 419, I.P.C., and two years rigorous imprisonment u/s 420, I.P.C. with fine of Rs. 1,000. It was further directed by the trial court that the accused shall undergo further three months imprisonment for each default in payment of the fine awarded. The convict Ram Niwas, preferred appeal against the judgment and order dated 27.4.1996, passed by learned Chief Judicial Magistrate, Nainital, which was registered as Criminal Appeal No. 14 of 1996, and learned IIIrd Additional Sessions Judge, after hearing the parties disposed of the appeal, upholding the conviction of the accused-Ram Niwas under Sections 468 and 471 of the Indian Penal Code, 1860. However, he acquitted the accused from the charge under Sections 419 and 420 of the said Code. Learned Additional Sessions Judge, enhanced the sentence u/s 468, I.P.C. from three years to five years and fine from Rs. 1,000 to Rs. 5,000. The appellate court also enhanced sentence u/s 471 of the Indian Penal Code from three years to five years and fine from Rs. 1,000 to Rs. 5,000. The lower appellate court also convicted the accused Ram Niwas u/s 417 of Indian Penal Code and sentenced him to one year''s rigorous imprisonment and a fine of Rs. 5,000. It is further directed by the learned appellate court that for default in payment of the fine, the Appellant shall undergo three months imprisonment. Aggrieved by said judgment and order dated 22.6.1999, this revision is preferred.

I heard learned Counsel for the revisionist and learned Assistant Government Advocate for the State.

From the perusal of the evidence on record, there is no illegality as far as the conviction of the accused/revisionist under Sections 417, 468 and 471 of the Indian Penal Code is concerned. All the three offences are proved from the evidence on record beyond reasonable doubt. There is no manifest error of law as far as the order of conviction passed by the lower appellate court against the revisionist is concerned. There is no illegality in the order of acquittal from the charges under Sections 419 and 420 of Indian Penal Code as the ingredients thereof not made out. However, there is manifest error of law on the face of the record, committed by the lower appellate court whereby the sentence has been enhanced u/s 468 of Indian Penal Code from three years to five years and fine from Rs. 1,000 to Rs. 5,000 without there being any appeal from the Government u/s 377 of the Code of Criminal Procedure, 1973, nor there being any notice to the accused for enhancement of the sentence. Same manifest error is committed by appellate court in respect of the enhancing of sentence u/s 471 of Indian Penal Code. Learned Assistant Government Advocate, fairly conceded that the punishment could not have been enhanced by the learned Sessions Judge without there being any appeal u/s 377 of the Code of Criminal Procedure, 1973, particularly, when there was no notice of enhancement of sentence to the accused. To that extent the impugned order is illegal and liable to be set aside.

Learned Counsel for the revisionist also argued that there was no charge framed against the accused/revisionist for trial u/s 417 of the Indian Penal Code, as such, the conviction under said Section by the lower appellate court is also bad. However, I am unable to accept the submission of the learned Counsel, for the reason that the accused was facing charge u/s 420 of Indian Penal Code along with Sections 468 and 471 of the Code. The maximum punishment for the offence u/s 420 is seven years while that u/s 417 is one year. In the circumstances, there had been no failure of justice by convicting the accused in respect of an offence, which is punishable less than the offence for which he was charged.

Learned Counsel for the revisionist, submitted to this Court that the revisionist should be given benefit under the provisions of The Probation of Offenders Act, 1958 (sic) offence committed by the convict/ accused, this Court is not inclined to accept this request.

For the reasons as discussed above, this revision is allowed partly to the extent of enhancement of sentence awarded by the appellate court. Therefore, the enhancement sentence under Sections 468 and 471 of the Indian Penal Code is set aside, and under these two Sections, the sentence awarded by the trial court is restored. The conviction and sentence passed by the lower appellate court u/s 417 of Indian Penal Code is also upheld. That being so, the revisionist shall undergo the sentence of three years rigorous imprisonment awarded by the learned Chief Judicial Magistrate under each of the Sections 468 and 471 of I.P.C., he shall be liable to pay fine of Rs. 1,000 under each of the said Sections, and in default of payment of which he shall further undergo three months imprisonment for each default. He shall also undergo the sentence awarded by the appellate court u/s 417, i.e., one year rigorous imprisonment and a fine of Rs. 5,000. The period already undergone by the revisionist during the trial or the appeal, shall be adjusted from the sentence awarded as above.