Report No. 42
3.61. Different views of High Courts.-
Courts have taken different views as to when exactly it can be said that an offence is "made up of parts" and as to the precise effect of the words "shall not be punished with the punishment of more than one of such his offences". In particular, the question of punishment in cases of rioting and causing hurt has given rise to much controversy.
3.62. Calcutta view.-
In an old case,1 the Calcutta High Court held that "the offence of voluntarily causing hurt under section 324, coupled with section 149, of the Indian Penal Code, of which these appellants have been found guilty, is primarily made up of two parts viz.: (1) of their being members of an unlawful assembly, by which force and violence was used in prosecution of its common object, and the members of which were armed with deadly weapons; and (2) of the offence of voluntarily causing hurt being committed by two other members of the unlawful assembly in prosecution of its common object.
The first of the two parts is itself an offence, viz., rioting armed with deadly weapons, under section 148 of the Indian Penal Code. It is nowhere expressly provided in law that, under the circumstances set forth above, the offender may be punished separately for the two offences constituted by the whole and the part respectively. Therefore, we find that all the conditions laid down in paragraph 1 of section 71 of the Indian Penal Code are present here. Consequently the infliction of separate punishments for the two offences is illegal under it."
1. Nilmony Poddar v. Queen-Empress, 1889 ILR 16 Cal 442 (446) (FB).
3.63. Bombay view.-
The Bombay High Court took a different view of the matter and held1 that, where a person is convicted of rioting and causing hurt, the conviction for causing hurt depending on the application of section 149, it is legal to pass two sentences provided the total punishment does not exceed the limit which the Court might pass for any one of the offences. But where the person has himself caused the hurt, the total punishment for the two offences can legally exceed that limit. Independently of the question whether the case fell under section 71, the proper course in a case where a person is convicted of two distinct offences, is to pass a separate sentence for each offence.
1. Q.E. v. Barra Punja, 1893 ILR 17 Born 26 (FB).
3.64. Madras view.-
This view again was dissented from by the Madras High Court in a later case.1 It held that "the view taken in Bombay is that section 71 is not one that gives directions about mere sentence, but that it only deals with punishments, and that therefore as long as the sentences passed on a conviction for rioting and some form of constructive hurt do not exceed the term that can be awarded for one of those offences, the provisions of sections 71 are complied with, in that the offender is not in the aggregate punished with more than the punishment which can be given to him for one of his offences.
With respect I do not think the words 'the offender shall not be punished with the punishment of more than one of such offences' should be so interpreted, but I think rather that the correct view is that taken in Calcutta. Taking it that in the constructive offences with reference to section 149 the offence of rioting is included, as in my opinion it is, then a person who is sentenced for rioting receives by that sentence his punishment for that offence. Any further punishment that is given for a constructive offence under section 149 will again be a punishment for the rioting in that the rioting is included in the latter offence.
"I do not think that section 71 is intended to refer to the aggregate punishment, even though the section does not contain the word 'sentence' but only speaks of punishments."
1. Ponniah Tope v. Emp., AIR 1934 Mad 388.
3.65. Sind view.-
A fourth view may also be noted. According to a Sind case,1 section 149 creates a separate offence and, therefore, in a case of rioting and causing hurt, "where section 149 is applied, section 71, Penal Code must apply", and "though separate convictions may be recorded for these separate offences for which a man may be charged and tried at the same trial according to the provisions of section 235, Code of Criminal Procedure separate sentences should not be passed". The judgment, however, adds that each case depends on its particular facts. "It cannot be laid down as a universal rule that where an accused is convicted of offences under sections 147 and 149 read with other appropriate section, section 149 must always include the punishment for the offence under section 147.
It might be proved that before a member of the unlawful assembly committed hurt, some members had already committed mischief or "otherwise used force or violence; if before committing hurt, members of the assembly had broken the glass of shop Windows or used force or violence, then they could be properly convicted and sentenced for rioting under section 147, Penal Code, and if thereafter they committed grievous hurt, then it appears to us they could further be convicted of an offence under section 325 read with section 149, Penal Code, and sentenced to separate, and even consecutive sentences, the aggregate length of the sentences not being in such a case a material question, except so far as section 35, Criminal Procedure Code lays down a limit of 14 years."
1. Haji v. Emperor, AIR 1943 Sind 212.
3.66. Amendment proposed.-
This seems to us a needless controversy arising out of the wide wording of the first paragraph of section 71. We consider that this provision should be limited to those cases in which offences of the same kind are repeated in a series of, acts which practically form one transaction, as indicated in the first illustration. In such a case, there should be no question of punishing the offender for each of the repeated culpable acts and he should be liable to be punished only for the total offence. We propose that the first paragraph should be revised as follows.-
"Where anything which is an offence is made up of parts, any of which parts is itself an offence of the same kind, the offender shall not, unless expressly so provided, be punished separately for such parts."
After this amendment, the paragraph will not be applicable to cases falling under section 149 and will not operate as a bar to passing separate sentences on a person convicted of rioting and causing hurt, whether constructively or directly.
3.67. Section 71, second paragraph.-
The second proposition in section 71 is that "whether anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences".
3.68. Supreme Court decision that separate sentences are permissible.-
It seems clear from the language that separate sentences are justified. In a case where the accused had been convicted and sentenced separately for transporting opium and possessing opium, the Supreme Court observedl.-
"As to the sentence which can be imposed, reference to section 35, Criminal Procedure Code and section 71, Penal Code, is necessary. Section 35, Criminal Procedure Code provides that where a person is convicted at one trial of two or more offences, the court may, subject to the provisions of section 71, Penal Code sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. Section 35, therefore, permits the passing of separate sentences for different offences and for them to run consecutively, unless the Court directs that they shall run concurrently. This, however, is subject to the provisions of section 71, Penal Code.
It is clear from these provisions that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. The maximum sentence which could have been imposed upon the appellant for any one of the offences of which he had been convicted was one year's imprisonment.
In other words, even if separate sentences were passed under section 9, sub-sections (a) and (b), the sum total of these sentences should not exceed one year's imprisonment. In the present case, the sentence imposed upon the appellant has been in all 6 months, 3 months' imprisonment under each count. It would appear, therefore, that the sentence passed upon the appellant did not contravene the provisions of section 71, Penal Code. In our opinion, the appellant was rightly convicted under section 9(a) and (b) of the Opium Act, and there has been no illegality in the sentence imposed upon him."
3.69. Difficulty created by section 26, General Clauses Act.-
Section 235(2), Criminal Procedure Code, provides that, "if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences". It therefore seems clear that separate convictions for the separate charges and separate punishments for the same are permissible, but it becomes less clear when we bring into the picture the similar provision made in section 26 of the General Clauses Act. This section read.-
"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
The wording of this section, particularly the italicised phrase, has led to difficulties in interpretation.
3.70. A Bombay decision.-
In a Bombay case,1 the accused were found travelling in a horse carriage which was also carrying two boxes containing salt and marked with the words "Gujarat Prantik Samiti". The Samiti had been declared an unlawful association under the Criminal Law Amendment Act, 1908. The accused were found guilty under section 47(c) of the Bombay Salt Act, 1890, for being in possession of contraband salt and also for assisting the operations of an unlawful association and sentenced to a fine of Rs. 100 on each charge. The court of Session, relying on section 26 of the General Clauses Act, was of the view that no one could be punished twice for the same offence, and made a reference to the High Court. Beaumont C. J. deciding the case said.-
"The first point to determine is whether there were really two acts constituting two offences, or one single id constituting two offences. It seems to me that in this case there was only one act, that act consisting of being in possession of contraband salt. It may well be that the case might have been framed so as to constitute two acts. The evidence might have shown, first of all, that the accused were in possession of contraband salt, and, secondly, that they were taking that salt to the headquarters of an unlawful association with a view to enabling that association to dispose of the salt, in which case I think they would clearly have been guilty of the second offence of assisting the operations of an unlawful association. But here, as far as I can see, the only offence proved was that of being in possession of contraband salt, which happened to be in boxes with the name of the unlawful association upon it. I do not think that the last fact is enough to constitute a second act. That being so, the case falls precisely within the words of section 26, General Clauses Act.
"The word 'offence' at the end of that section read with the definition in section 3, sub-section (37), means, I think, an act or omission. In the present case you have got an act alleged to constitute an offence under two enactments, and section 26, General Clauses Act, expressly provides that the accused shall not be punished twice for the same act. I think therefore that the accused were only liable to be fined once, and that the second sentence of fine must be set aside."
1. Emp. v. Bhogilal, AIR 1931 Born 409.