State of Karnataka v. N.Sampath Kumar & Ors.

Judgment

1. N.Sampath Kumar, S/o. Late Vylayudham, Aged about 37 years.

2. Manikyamma, W/o. Late Velayudham, 78 years. All are R/o. No.4082, II Cross, II Stage, Old Pipe Lane, Kumaraswamy Layout, Bangalore. …Respondents (By Shri S.R.Muralidhar, Advocate for R-1 Appeal against R-2 abated vide order dated 04.11.2011) This Criminal Appeal is filed under Section 377 of the Code of Criminal Procedure praying that this Hon’ble Court may be pleased to enhance the sentence imposed dated 14.03.2005 by the VI Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.14807/1997 convicting the respondents – accused : 2 : for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act and under Section 498-A and 506 of I.P.C. and sentencing them to undergo simple imprisonment for one year and to pay fine of Rs.200/- each and etc. This Criminal Appeal coming for further hearing on this day, the Court delivered the following: - JUDGMENT

Shri S.R.Muralidhar, Advocate filed vakalath on behalf of respondent No.1 with no objection from the counsel on record. Vakalath is taken on record and he is permitted to argue on behalf of the respondent No.1.

2. In this appeal filed under Section 377 of the Code of Criminal Procedure, the State is complaining inadequacy of sentence, insofar as it relates to the conviction for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act (for short D.P. Act).

3. Respondent Nos.1 and 2, being the son and mother, were tried before the VI Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.14807/1997 for the offences punishable under Sections 498-A and 506 of the Indian Penal Code (for short I.P.C.) and Sections 3 and 4 of the D.P. Act. After : 3 : full-fledged trial, the learned Magistrate found both the accused persons guilty of those offences. After hearing the counsel for the accused, the learned Magistrate sentenced the accused persons to undergo simple imprisonment for one year and to pay fine of Rs.200/- for the offence punishable under Section 498-A of I.P.C., simple imprisonment for one year for the offence punishable under Section 506 of I.P.C. and further to undergo simple imprisonment for one month for each of the offences punishable under Sections 3 and 4 of the D.P. Act. All the sentences of imprisonment were ordered to run concurrently. Complaining inadequacy of the sentence for the offences punishable under Sections 3 and 4 of the D.P. Act, the State has presented this appeal, interalia on the ground that the order regarding sentence for these offences is not in accordance with the mandate of law.

4. During the hearing of this appeal, it is brought to the notice of this Court that aggrieved by the judgment of conviction and order of sentence, the two accused persons filed appeal before the Sessions Court : 4 : and the same is pending before the City Civil and Sessions Court, Bangalore, in Criminal Appeal No.505/2005 before the Fast Track Court – X, Bangalore City.

5. During the pendency of this appeal, respondent No.2 – accused No.2 was reported to have died. Therefore, the appeal as against accused No.2 has stood abated. Therefore, this appeal is considered only as against accused No.1.

6. In view of the above, the only point for consideration is: - “Whether the order of sentence in relation to the offences punishable under Sections 3 and 4 of the D.P. Act passed by the learned Magistrate is in accordance with law?”

7. Sections 3 and 4 of the D.P. Act relevant for our purpose read as under: - “3. Penalty for giving or taking dowry. (1) If any person, after commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall : 5 : be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more: Provided that the Court may, adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years. (2)

4. Penalty for demanding dowry. If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, adequate and special reasons to be mentioned judgment, impose a sentence of imprisonment for a term of less than six months”.

8. Reading of Section 3 extracted above, makes it clear that when a person is found guilty of the said : 6 : offence, the Court has no option, but to sentence such person to a minimum period of imprisonment of five years and also to pay minimum fine of Rs.15,000/-. Similarly, when a person is found guilty of the offence punishable under Section 4, he should be punished with imprisonment for a minimum period of six months and the fine which may extend to Rs.10,000/-. Of course, as per the proviso to both the above Sections, the Court has discretion to award sentence of imprisonment for a term less than the minimum prescribed therein provided, there are adequate and special reasons for doing so and the adequate and special reasons are to be recorded in the judgment. The discretion vested in the Court as per these provisos is relation imposition of sentence of imprisonment. The discretion does not extend insofar as it relates to sentence of fine. In other words, even if the Court exercised its discretion to award a lesser sentence of imprisonment than the minimum prescribed therein, it has no discretion in the matter of imposition of fine, therefore, for the offence punishable under : 7 : Section 3 of the D.P. Act, the Court will have to impose a minimum fine of Rs.15,000/-, while for the offence punishable under Section 4 of the D.P. Act, it has to impose a fine which may extend to Rs.10,000/-. In the case on hand, the order passed by the learned Magistrate regarding sentence in respect of the offences punishable under Sections 3 and 4 of the D.P. Act is not in accordance with the mandate of those Sections. The learned Magistrate appears to have not looked into the provisions of law before passing the orders regarding sentence in this regard. The perusal of the judgment under appeal also does not indicate existence of adequate and special reasons for imposition of lesser sentence of imprisonment than the minimum prescribed therein. From the perusal of the records, I do not find any adequate or special reasons to exercise the discretion vested in the Court as per the proviso for awarding a lesser sentence of imprisonment than the minimum prescribed therein. Therefore, the order regarding sentence passed by the learned Magistrate in relation to the offences punishable under Sections 3 : 8 : and 4 of the D.P. Act is bad in law and it is contrary to the aforesaid Sections.

9. In the light of the provisions of Section 377(3) of the Code of Criminal Procedure, in an appeal under Section 377 by the State complaining inadequacy of sentence, the accused has a right to plead for acquittal or for the reduction of the sentence. Such a plea could be made even without the accused assailing the judgment of conviction independently by filing an appeal. However, learned counsel respondent No.1, in the light of the pendency of the appeal filed by the accused before the Court of Sessions, questioning the judgment of conviction and order of sentence passed by the Trial Court, submitted that the respondent No.1 – accused No.1 reserves his right to plead for setting aside the judgment of conviction and for acquittal before the learned Sessions Judge where the appeal is pending. Therefore, in this appeal this Court has not considered the legality and correctness of the judgment of conviction passed by the Trial Court for the offences punishable under Sections 498-A and 506 : 9 : of I.P.C., as also Sections 3 and 4 of the D.P. Act. In this appeal the correctness of the order of sentence passed by the Trial Court with regard to the offences punishable under Sections 3 and 4 of the D.P. Act only has been considered. It is made clear that the observation made during the course of this order and the conclusion reached herein, are only for the purpose of the disposal of this appeal and it is subject to the decision that may be rendered by the Sessions Court in the appeal as to the correctness of conviction for the offences punishable under Sections 3 and 4 of the D.P. Act. This exercise was found necessary for the reasons that in the event of the learned Sessions Judge affirming the judgment of conviction passed by the learned Magistrate for the offences punishable under Sections 3 and 4 of the D.P. Act, he would not have power to enhance the sentence passed for the said offences in that appeal filed by the accused. This Court could have awaited the result of the appeal, pending before the learned Sessions Judge. However, this Court felt that there is no need to keep this appeal pending till : 10 : the disposal of the appeal pending before the Sessions Court and I thought it fit to dispose of this appeal by correcting the order regarding sentence and directing that it should take effect subject to the result of the appeal, pending before the learned Sessions Judge.

10. In view of the above discussions and since the order of sentence passed by the learned Magistrate with regard to the offences punishable under Sections 3 and 4 of the D.P. Act, is not in accordance with the statutory provisions and since there are no adequate and special reasons for exercising the discretion to lesser sentence of imprisonment than the minimum prescribed therein, the order passed by the learned Magistrate in this regard is perverse and contrary to the provisions of law, as such, it is liable to the modified.

11. Accordingly, this appeal is allowed. In modification of the order of sentence passed by the VI Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.14807/1997, it is ordered that the : 11 : respondent No.1 – accused No.1 is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.15,000/- for the offence punishable under Section 3 of the D.P. Act and to undergo rigorous imprisonment for six months and also to pay fine of Rs.5,000/- for the offence punishable under Section 4 of the D.P. Act. The sentences of imprisonment shall run concurrently. The order regarding sentence passed herein for the offences punishable under Sections 3 and 4 of the D.P. Act is subject to the result of the Criminal Appeal No.505/2005 pending before the Fast Track Court – 10, Bangalore City.

12. This order of sentence shall take effect only in the event of the Appellate Court affirming the judgement of conviction for the offences punishable under Sections 3 and 4 of the D.P. Act.

13. Records of the Trial Court along with a copy of this judgment shall be now sent to the Appellate Court namely, Fast Track Court-X, Bangalore City, wherein Criminal Appeal No.505/2005 is pending, to : 12 : enable the said Court to dispose of the appeal pending therein. Rsh SD/- JUDGE