# STATE OF MAHARASHTRA v. JUGAMANDER LAL

- **Citation:** [1966] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1965-12-09
- **Case number:** Criminal Appeal No. 114 of 1965
- **Bench:** A. K. Sarkar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-jugamander-lal-3694
- **Pages:** 6

## Headnote

Suppression of Immoral Traffic in Women and Girls Act,
1956, <.
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.
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 imprison~
ment 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 CourtHELD : 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 ( !) 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-0)
The expression "punishablen
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 HJ
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. Achar, for the appellant.
R. K. Garg and U. P. Singh, for the respondent.
SUPREME COURT REPORTS
[1966] 3 S.CR.

## Text

B
•·
D
•
E
F
T
•
G
H
STATE OF MAHARASHTRA
v.
JUGAMANDER LAL
December 9, 1965
(A. K. SARKAR AND J. R. MUDHOLKAR, JJ.]
Suppression of Immoral Traffic in Women and Girls Act,
1956, <.
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.
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 imprison~
ment 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 CourtHELD : 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 ( !) 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-0)
The expression "punishablen
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 HJ
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. Achar, for the appellant.
R. K. Garg and U. P. Singh, for the respondent.
SUPREME COURT REPORTS
[1966] 3 S.CR.
The Judgment of the Court was delivered by
A
Mudholkar, J.
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
B
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 ofTence under s. 3 (I) 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. 1,500/- but did not pass a c
,entence of imprisonment.
The respondent was also found guilty
of an offence under s. 4 (I ) of the Act for living on the earning
of prostitution and sentenced by him to pay a fine of Rs. 500/-.
The respondent challenged his conviction in ~espect 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 preD
fcrred an application for revision before the High Court for enhancement 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 (I) 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( I) 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 (I) 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
mto 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
E
F
G
H
..
•
•
'
..
•
•
\'
•
•
•
"
_;.
..
--
A
B
c
D
E
F
G
H
MAHARASHTRA V. JUGAMANDER (M11dholkar, !.)
3
more than five years and also with filie which may extend to two thousand rupees.'~
The High Court took the view that the word "punishable" in 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 th!; use of the word "punishable" in
prescribing a punishment".
The decision relied upon by the High
Court is Emperor v. Peter D'Souza(').
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 194 7.
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 peru-
~l 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.!.R. 1949 Born. (41 F.B)
SUPREME COURT REPORTS
[ 1966] 3 S.C.R.
prescribed by it for an offence or to making it obligatory upon
it to pass a particular sentence or sentences so preicribed. 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 (I) 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
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 month> 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 line 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 construoo "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, whut the nature
A
B
c
D
E
G
II
'
•
•
•
• •
... .
-
t
-< •
•
•
,
•
•
•
•
•
•
•
A
B
c
D
E
F
MAHARASHTRA v. JUGAMANDER (Mudholkar, J.)
5
Qf 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 punish·
men!. 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, disc·etion on the
court whether to award a punishment or not, no difficulty arises
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 s~ntence
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 -0f 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
the consequences are to be are then specified in the provision
and they are rigorous imprisonment for a period not less than
G 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
H
than one year the Legislature has made it clear that its command
is to award a sentence of imprisonment in every case of conviction. It is difficult to conceive of clearer language for couching
such command.
We have no doubt that the High Court was in
SVPREME COURT
REPORTS
[1966] 3 S.C.R
error in construing this section in the manner it has done.
The
logical result of this would be to pass a sentence of impri.,onmee.t
upon 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 will 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 a//ow~d.
A
B
c
D
,_ ..
•
'
•
•
•
•
•