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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: JUGAMANDER LAL

DATE OF JUDGMENT: 09/12/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K.

CITATION:  1966 AIR  940            1966 SCR  (3)   1

ACT: Suppression of Immoral Traffic in Women and Girls Act, 1956, v.   3(1)-Whether  first  offence  must  be  punished   with imprisonment  and  fine-"Punishable" as  distinguished  from "Punished"-Whether  gives discretion to court not to  impose imprisonment.

HEADNOTE: The respondent was convicted of offences under sections 3(1) and 4(1) of the Suppression of Immoral Traffic in Women  and Girls  Act,  1956.   For the offence under s.  3(1)  he  was sentenced by the trial court to pay a fine of Rs. 1,500  and for that under s. 4(1) to pay a fine of Rs. 500.  On  appeal by  the respondent, the High Court affirmed his  conviction. The State preferred an application before the High Court for enhancement of the sentences and with regard to the  offence under  s. 3(1) it was contended on behalf of the State  that it was obligatory on the part of the Magistrate to pass  the minimum  sentence  of imprisonment against  the  respondent. The High Court enhanced the fine in respect of this  offence to  a  sum  of Rs. 2,000/- but did not pass  a  sentence  of imprisonment.   In reaching this conclusion, the High  Court took  the view that the use of the word "punishable"  in  s. 3(1) instead of the word "punished" necessarily  postulates a  certain discretion on the court to impose a  sentence  of imprisonment or a sentence of fine or both. On appeal to this Court- HELD  :  In the context in which the word  "punishable"  has been  used  in s. 3(1) it is impossible to  construe  it  as giving  any  discretion  to  the  court  in  the  matter  of determining the nature of sentences to be passed in ’respect of a contravention of the provision.  The punishments for  a first offence under s. 3(1) are rigorous imprisonment for  a period not less than one year and not more than three  years and also a fine which may extend to Rs. 2,000/-. [5 E-G] The  expression "punishable" means "liable  to  punishment", which  only means that a person who has contravened a  penal provision  will  have  to be punished.   It  does  not  mean anything different from "shall be punished".  Punishment  is obligatory in either cases but what the nature of punishment is  to  be, must be ascertained by a  consideration  of  the whole of the penal provision. [4 H]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 114 of 1965. Appeal  by Special Leave from the Judgment and  Order  dated the  11th/12th  November, 1963 of the Bombay High  Court  in Criminal  Appeal No. 161 of 1963 with Criminal Revision  No. 917 of 1963. N.   S. Bindra and B. R. G. K. A char, for the appellant. R.   K. Garg and U. P. Singh, for the respondent. 2 The Judgment of the Court was delivered by Mudholkar In this appeal by special leave from a judgment of the  High Court of Bombay the short point for  consideration is whether it is obligatory upon the court which convicts  a person  of an offence under S. 3 (1) of the  Suppression  of Immoral  Traffic  in  Women and Girls Act, 1956  to  pass  a sentence of imprisonment where the conviction is, in respect of  a first offence, for a term not less than one  year  and not   merely  to  a  sentence  of  fine.    The   Presidency Magistrate, Bombay, held the respondent guilty of an offence under S. 3 (1) of the Act for keeping a brothel, or allowing the  premises in his occupation to be used as a brothel  and passed a sentence of fine of Rs. 1,5001- but did not pass  a sentence  of  imprisonment.  The respondent was  also  found guilty of an offence under s. 4(1) of the Act for living  on the  earning of prostitution and sentenced by him to  pay  a fine of Rs. 5001-.  The respondent challenged his conviction in  respect  of  each of the two offences  as  well  as  the sentences  awarded  to  him.  The High  Court  affirmed  his conviction  for  these  offences.  The  State  preferred  an application  for  revision  before the High  Court  for  en- hancement  of the sentences which was heard along  with  the appeal.  It was contended on behalf of the State that it was obligatory on the part of the Magistrate to pass the minimum sentence  of imprisonment against the respondent in  respect of  the offence as provided under s. 3 (1) of the  Act.   It was  also contended that though there was no  obligation  on the Magistrate to pass a sentence of imprisonment in respect of  the  offence  under S. 4(1) of  the  Act,  the  sentence awarded by him was inadequate.  The High Court enhanced  the sentence of fine in respect of the offence under s. 3(1)  to a  sum of Rs. 2,000/-.  In so far as the other  offence  was concerned the High Court set aside the sentence of fine  and instead  directed  that the respondent be  released  on  his entering  into a bond for a sum of Rs. 2,000/- under S.  562 of  the Code of Criminal Procedure to keep peace and  be  of good behaviour for a period of three years. The provisions of S. 3 (1) of the Act read thus               "Any  person who keeps or manages, or acts  or               assists  in  the keeping or management  of,  a               brothel   shall   be   punishable   on   first               conviction  with rigorous imprisonment  for  a               term  of not less than one year and  not  more               than three years and also with fine which  may               extend to two thousand rupees and in the event               of  a  second or subsequent  conviction,  with               rigorous  imprisonment for a term of not  less               than two years and not                                     3               more than five years and also with fine  which               may extend to two thousand rupees." The  High Court took the view that the word "punishable"  in

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the  aforesaid  section instead  of  "punished"  necessarily postulates  a  certain discretion on the court to  impose  a sentence of imprisonment or a sentence of fine or both.  The High  Court  felt  that  there  was  no  escape  "from  this construction  in view of the interpretation put by the  Full Bench of that Court as to the meaning to be adopted in  view of  the  use  of  the word  "punishable"  in  prescribing  a punishment".  The decision relied upon by the High Court  is Emperor v. Peter D’Souza(1).  That was a case under s- 43(1) of  the Bombay Abkari Act, 5 of 1878.  The  provision  which the  Full  Bench  had to construe was  substituted  for  the original  provision by Bombay Act 29 of 1947.  The  original provision  was  that  a person  "shall,  on  conviction,  be punished for each such offence with imprisonment for a  term which  may  extend  to six months, or with  fine  which  may extend  to  Rs. 1,000/-, or with both".  The  Amending  Act, 1947 substituted for this the following provision:               "Shall,  on conviction, be punishable for  the               first  offence  with imprisonment for  a  term               which  may extend to six months and with  fine               which may extend to Rs. 1,000 :               Provided  that  in  the  absence  of   special               reasons to the contrary to be mentioned in the               judgment of the Court, such imprisonment shall               not  be less than three months and fine  shall               not be less than Rs. 500." It  was  contended before the court that the object  of  the amended  provision was to make it obligatory upon the  court convicting  a person of an offence under that Act to pass  a sentence of imprisonment which shall ordinarily not be  less than  three  months, while it was not obligatory to  pass  a sentence of imprisonment under the original provision. It is significant to notice that the expression used in  the original  provision is "punished" and not  "punishable".   A bare  perusal  of  the  Penal  Code  would  show  that   the Legislature  has  in  the penal  provisions  also  used  the expression "punished".  This is so even where discretion has been conferred upon the court to award a sentence of fine in lieu  of or in addition to a sentence of imprisonment.   The mere use of the word "punished" or the word "punishable’  is not  determinative  of the intention of the  legislature  to empower the court to select one or more kinds of sentences (1)  A.I.R. 1949 Bom. (41 F.B) 4 prescribed  by it for an offence or to making it  obligatory upon  it  to  pass a particular  sentence  or  sentences  so prescribed.   One thing follows with certainty from the  use of  either  of these expressions and that is that  upon  the conviction of a person for the particular offence the  court is bound to award punishment.  What the nature and extent of the  punishment  to be awarded has to be  ascertained  by  a consideration  of the entire penal provision.  Now,  let  us consider s. 43(1) as it was before its amendment in the year 1946.   There  the Legislature had said that  the  convicted person  shall be "punished".  Then it proceeded to say  that the  punishment shall be (a) imprisonment for a  term  which may  extend to six years; (b) or a fine which may extend  to Rs.  1,000;  (c) or imprisonment as well as  fine.   If  the whole  provision is construed it is clear that  despite  the use of the words "punished with" the nature of the  sentence was  left to the discretion of the court.  Even if the  word "punishable" had been used instead of "punished" the  result would  have  been the same because of the use  of  the  word ’or’.   That  is to say that the provision would  have  been open  to  only  one construction and that  is  that  it  was

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discretionary  with  the  court  to  choose  the  nature  of punishment  to be awarded to a convicted person.  Since  all this  was clear there would have been no point  in  amending the  provision  in  the  year 1947  if  the  nature  of  the punishment  was  still to be left to the discretion  of  the court.-   The  plain  meaning  of  the  words   "shall,   on conviction,  be  punishable  for  the  first  offence   with imprisonment  for a term which may extend to six months  and with fine which may extend to rupees one thousand" would  be that  the court convicting a person of an offence under  the Act  was  bound  to  award a  sentence  consisting  both  of imprisonment  and fine.  The words "may  extend;’  preceding "six  months" and "rupees one thousand" respectively  merely give  discretion  to the court in so far as  the  extent  of imprisonment or fine to be awarded is concerned and  nothing more.   It  is  obvious that the  Legislature  replaced  the original  "or"  which gave an option to  the  Magistrate  by "and" to make its intention clear.  The Full Bench, however, expressed the view that by using the expression "punishable" the  Legislature  conferred a discretion on  the  court  and because  of  the use of that expression the Full  Bench  has construed  "and" as meaning "and/or".  It is no  doubt  true that   the   expression  "punishable"   means   "liable   to punishment".   "Liable  to  punishment" only  means  that  a person who has contravened a penal provision will have to be punished.   Thus  it does not mean anything  different  from "shall  be  punished".  Punishment is obligatory  in  either case.  But, as already observed, what the nature 5 of   punishment  is  to  be  %must  be  ascertained   by   a consideration  of. the whole of the penal  provisions.   We, therefore,  are unable to accept the view of the Full  Bench that  by  merely  using  the  expression  "punishable"   the Legislature intended to say that a discretion was left  with the  court  to determine the nature of punishment.   If  the view of the High Court that the word "punishable" imports  a discretion  in the court were to be accepted an  astonishing result  would  ensue  :  it  would  follow  that  there   is discretion in the court whether to punish a convicted person at all or not.  Mr. Garg frankly says that he cannot support a construction which would lead to such a result.  Once  the position  is reached that the expression  "punishable"  does not  confer  a discretion on the court whether  to  award  a punishment or not, no difficulty arise,,, in construing  the section  and so the conjunction "and" is not required to  be construed to mean the opposite, that is, to mean " "or  Mr. Garg tried to rely upon the proviso in  support  of his  contention that the determination of the nature of  the sentence  was left to the discretion of the court.   In  our opinion, the proviso does not afford any assistance to  him. On the other hand it would seem to fetter the discretion  of the  court  still further by making it obligatory  upon  the court  to pass, ordinarily,’ a sentence of  imprisonment  of not less than three months. We have discussed the Full Bench decision at length  because the High Court has relied upon it, and the word "punishable" occurs in the provision which we have to construe here.   In the context in which the word "punishable" has been used  in s.  3  (1 ) it is impossible to construe it  as  giving  any discretion  to  the court in the matter of  determining  the nature   of  sentences  to  be  passed  in  respect   of   a contravention  of  the provision.  By using  the  expression "shall be punishable" the Legislature has made it clear that the offender shall not escape the penal consequences.   What

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the  consequences  are  to  be are  then  specified  in  the provision  and they are rigorous imprisonment for  a  period not  less  than one year and not more than three  years  and also a fine which may extend to Rs. 2,000/-.  These are  the punishments  with  respect  to a first  offence  and  higher punishments  are  prescribed  in  respect  of  a  subsequent offence.   By saying that a person convicted of the  offence shall be sentenced to imprisonment of not less than one year the  Legislature  has made it clear that its command  is  to award  a sentence of imprisonment in every case  of  convic- tion.   It is difficult to conceive of clearer language  for couching such command.  We have no doubt that the High Court Was in 6 error in construing this section in the manner it has  done. the  logical result of this would be to pass a  sentence  of imprisonment  the respondent for a period not less than  one year  in  respect of the offence under S. 3(1) of  the  Act. However, when special leave was granted this Court made  the following order :               "Special  leave granted.  It may  be  recorded               that  counsel  for the State states  that  the               State,   will  not  insist  on  this   accused               person’s  going  to jail.  It win be  open  to               consideration of the Court hearing the  appeal               to   keep  this  in  mind  in   deciding   the               matter.......... Mr. Bindra who appeared for the State did not insist that we should send the respondent to jail-which would be the result if we pass a sentence of imprisonment made obligatory by the law.   In the circumstances we leave the matter where it  is and merely pronounce our interpretation of the law. Appeal allowed. 7