Court No. - 17
Case :- CRIMINAL REVISION No. - 1949 of 1998
Revisionist :- Munney Khan
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Rajeev Sharma
Counsel for Opposite Party :- Govt. Advocate,I.M.Kushwaha
Hon'ble Suresh Kumar Gupta,J.
List has been revised.
None appeared on behalf of the applicant.
Revision cannot be dismissed in default in the absence of revisionist, hence decided on merit.
The Criminal Revision has been filed against the order and judgment dated 23.11.1998 passed by IIIrd Additional Sessions Judge in Criminal Appeal No. 64 of 1997 (Munney Khan Vs. State of U.P.) whereby the appellate Court had partially allowed the appeal, to the extent that a fine of Rs. 3000/- under Section 338 I.P.C. was reduced to Rs. 750/- in default of payment of fine, 2 months rigorous imprisonment and Rs. 1000/- should be paid to the injured, Updesh Kumar, and rest of the conviction under Section 279 I.P.C., a fine of Rs. 750/- in default of payment one month rigorous imprisonment under Section 337 I.P.C. one month rigorous imprisonment and fine of Rs. 750/- in default of payment of fine 10 days rigorous imprisonment and under Section 338 I.P.C. 6 months rigorous imprisonment as pronounced by trial court in Case No. 1096 of 1997 dated 17.10.1997.
I have heard learned A.G.A. for the State and perused the record.
Revisionist contended in his revision that Court below punished under Section 279 and also under Sections 337 & 338 I.P.C. is not permissible in view of Section 71 I.P.C. therefore, order passed by Court below is illegal. Prosecution was failed to prove his case that bus driver was driving in rash and negligent manner. It is also stated that injured got the compensation under Motor Vehicle Act and inspite of all this, the Court below awarded compensation on behalf of injured, Updesh Kumar, and on the above ground this revision is liable to be set aside. The order passed by Court below and revision to be allowed accordingly.
One of the 1st argument placed by revisionist as according to provision in Section 71 I.P.C revisionist cannot be punished simultaneously under Sections 279, 337, 338 of I.P.C. because nature of offence shows that they are made up of same parts, so the offender shall not be punished with the punishment of more than one of such offence. Section 71 I.P.C. provided that "
"71. Limit of punishment of offence made up of several offences.—Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. 1[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, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, 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.] Illustrations
(a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.
(b) But if, while A is beating Z, Y interferes, and A intention- ally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y."
It is wrong to say that Sections 279, 337 & 338 I.P.C. is part of the same offence. Section 279 I.P.C. provides punishment for rash or negligent driving in public way, Section 337 provides causing hurt to any person by doing any act so rashly or negligently, Section 378 provides causing grievous hurt to any person by doing any act so rashly or negligently.
One of the second argument placed by applicant that injured, Updesh Kumar, has got the compensation under Motor Vehicle Act, hence the Court below cannot award compensation on behalf of injured, Updesh Kumar, under Sections 279, 337 and 338 I.P.C., I am not agree with the contention raised by revisionist that compensation under Sections 279, 337 & 338 I.P.C. should not be awarded after successful trial of the offence in criminal cases and accused got sentence of fine. It is specifically provided under Section 357 Cr.P.C. that when a Court imposes a sentence of fine or sentence of which fine forms a part, the Court when passing judgement/order, the whole or any part of the fine recovered to be applied in the payment to any person of compensation for any loss or injury caused by the offence. On applying this principle, learned Court below awarded fine. On account of recoverable fine the learned Court provided compensation to the injured which is perfectly legal as per provision of Sections 357 Cr.P.C.
Scope of compensation under Motor Vehicle Act and Section 357 Cr.P.C. is totally different. Injured is entitled to compensation under Motor Vehicle Act and compensation has provided in Section 357 Cr.P.C. in lieu of fine recovered from revisionist/accused. In view of the above discussion, I am of the opinion that trial court as well as learned Appellate Court has rightly convicted the revisionist under Sections 279, 337 & 338 I.P.C. and sentence provided within the jurisdiction of Court.
There is no irregularity or illegality in the fining of learned Court below and rightly exercise its jurisdiction and after full appreciation of fact convicted the revisionist. Hence, there is no illegality or infirmity find in the judgment and order of the Court below. Revision is being devoid of merit and liable to be dismissed accordingly.
Order Date :- 24.1.2019 Vibha Singh