In this context and factual background, two points arise for consideration, viz.:
(i) Whether the High Court was permitted, in law, to do away with the punishment of imprisonment altogether and substitutes the same with fine alone?
(ii) Whether the circumstances pleaded by the Respondent were so mitigating that punishment of fine alone could be justified?
14. Coming to the first question, as can be seen from the language of Sections 307, 328 and 392 of Indian Penal Code, all these Sections provide for imprisonment 'and' fine. In fact, after specifying particular term of imprisonment, all these Sections use the words 'and shall also be liable to fine'. This expression came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. MANU/SC/0453/1999 : (1999) 7 SCC 409 and the Court explained that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine. Thus, there has to be punishment of imprisonment in respect of these offences, and in addition, the convict is also liable to pay fine. Therefore, awarding the punishment of imprisonment is a must and there cannot be a situation where no imprisonment is imposed at all. The High Court was, therefore, clearly wrong in not inflicting a sentence of imprisonment, by modifying the sentence awarded by the trial court and obliterating the sentence of imprisonment altogether. Thus, the very approach of the High Court in substituting the sentence by fine alone is impermissible in law.
15. Section 386 of the Code of Criminal Procedure enlists the powers of the appellate court while hearing the appeals from the trial court. In an appeal from conviction, if the conviction is maintained, the appellate court has the power to alter the nature or the extent, or the nature and extent, of the sentence (though it cannot enhance the same). However, such a power has to be exercised in terms of the provisions of Indian Penal Code etc. for which the Accused has been convicted. Power to alter the sentence would not extend to exercising the powers contrary to law. It clearly follows that the High Court committed a legal error in doing away with the sentence of imprisonment altogether.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 667 of 2017 (Arising out of SLP (Crl.) No. 8983 of 2012
Decided On: 10.04.2017
Hon'ble Judges/Coram:
A.K. Sikri and Ashok Bhushan, JJ.
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