No Guidelines In IPC For Awarding Rigorous/ Simple Imprisonment, Discretion Must Be Exercised Based On Mitigating & Aggregating Factors: Jharkhand HC

"Section 353 IPC provides that the offender shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The legislative intendment which can be gathered from the phraseology used in section 353 IPC is that wide discretion has been conferred upon the Courts in the matter of punishment for the offence under section 353 IPC."

In the present case the petitioner along with his brother was made accused in a case of 2001 which was registered for commission of the offence under sections 342, 353 and 323 read with section 34 of the Indian Penal Code. Petitioner- Gopal Malhotra and Ashok Malhotra (brother) both sons of late Sardari Lal Malhotra were convicted and sentenced to RI for two years under section 353 IPC. Before the trial court one of the arguments was that only for the reason that the accused refused to produce license for the shop the offence under section 353 IPC was not made out. The Sub-divisional Judicial Magistrate judgment dated 12th December 2008 convicted the petitioner alongwith his brother under section 353 IPC and sentenced them to undergo RI for two years by the order of sentence of the same day.

They filed an Appeal in 2009 which was dismissed in 2010. Gopal Malhotra filed the present criminal revision petition on 09th February 2015 and thereafter surrendered on 13th April 2015 – he was released on bail on 16th April 2015.

Before High Court, it was argued by petitioner that award of maximum punishment under section 353 IPC is not justified in the facts of the case and the convict who was not the owner of the liquor shop should not have been sentenced with rigorous imprisonment for two years.

Additional Public Prosecutor argued that the arguments of the petitioner need to be rejected because huge quantity of liquor was recovered from the shop.

Court said that there are three alternatives provided under section 353 IPC for awarding punishment to a convict. A convict may be punished with imprisonment, or with fine, or with imprisonment and fine both. The aforesaid three types of punishments provided under section 353 IPC are in alternative to each other as the expression "or" has been used with "comma" which would mean that the punishments are alternative as the sentence uses disjunctive expression.

It noted that the impugned order passed by the Magistrate on quantum of punishment to be awarded to the petitioner did not reveal proper consideration.

Court also noted that after perusing the material on record it is clear that the petitioner was not the owner of liquor shop and the informant stated about just a quarrel with the police force.

The court was not inclined to minutely appreciate the evidence in exercise of the revisional jurisdiction, but since it found merits in the arguments of the petitioner, it observed:

"This Court finds substance in the submissions made by Mrs. Aanya, the learned counsel for the petitioner and, accordingly, while upholding the judgment of conviction, the order of punishment dated 12th December 2008, as affirmed by the appellate Court, is set aside. The petitioner who has undergone sentence of imprisonment for few days is sentenced to fine of Rs.50,000/- to be paid within four weeks failing which the judgment of conviction and sentence passed in T.R. No. 493 of 2008 shall stand revived."