Allahabad High Court
Dudhai And Others vs State Of U.P. on 11 July, 2025
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:111763 Court No. - 70 Case :- CRIMINAL APPEAL No. - 2228 of 1984 Appellant :- Dudhai And Others Respondent :- State of U.P. Counsel for Appellant :- S.P.K. Tripathi Counsel for Respondent :- A.G.A. Hon'ble Dr. Gautam Chowdhary,J.
1. Heard learned Counsel for the appellant, learned A.G.A. for the State and perused the material on record.
2. The present appeal is against the Judgement and order of conviction dated 31.07.1984 passed by learned VIIth Additional Sessions Judge, Gorakhpur in S.T. No. 387 of 1982 (State Vs. Dudhai and others) whereby convicting and sentencing the appellants to undergo for R.I. of three years for the offence under Section 304/34 Part I, to undergo imprisonment of two years for the offence under Sections 324/34 I.P.C., and to undergo for imprisonment of six months for the offence under Sections 323/34 I.P.C.All the sentences shall run concurrently.
3. Learned counsel for the appellants contends that from the date of Judgement and order, more than 40 years have elapsed and the appellants are old ailing person of more than 65 years of age and therefore, sentence of punishment may be converted into fine. Learned counsel for the appellants has relied upon the judgment of this Court reported in 2004 (49) ACC 539 in the matter of Majister @ Budhpal versus State of U.P. wherein this Court has taken note of the fact that 19 years have elapsed since the date of revision and the accused was on bail during the pendency of revision and therefore, sending the accused to jail after lapse of 17 years would be against humanitarian approach and therefore, liberty was given to avail the benefit of provisions of Section 433(d) Cr.P.C. and the imprisonment was converted into fine.
Paragraph 8, relevant part of paragraph-9 and paragraph 10 of the aforesaid judgment is quoted hereinunder:-
"8. Section 433 (d) aforesaid provides for commutation of sentence of simple imprisonment for fine by the appropriate Government. In the leading case of N. Sukumaran Nair v. Food Inspector, Mavelikara, the Supreme Court in such circumstances provided such relief as being permissible to an accused. Para 3 of the judgment is extracted below-
"The offence took place in the year 1984. The appellant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1000. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We therefore, direct the appellant to deposit in the Trial Court a sum of Rs. 6,000/- as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."
4. In the case of Maqbool Ahamed v. State of U.P.(supra), learned Single Judge of this Court relying upon the aforesaid N. Sukumaran Nair v. Food Inspector, Mavelikara, altered the sentence awarded in such a case of food adulteration to the accused to six months simple imprisonment and also directed the State Government that instead of sentence of actual imprisonment he would pay fine which shall be deposited within stipulated period and then he would move an application before the State Government which on receipt of such application shall formalize the matter under the provisions of section 433 (d) of the Code of Criminal Procedure.
5. In the case of Prem Chand v. State of U.P. (supra) and Roop Chand v. State of U.P. (supra), learned single Judge has also preferred to adopt the same view of the matter to provide benefit of alternative to the accused under Section 433(d) aforesaid for the purposes to avoid his further sufferance in jail, which in the circumstances of the aforesaid case was not justified."
Reduction of sentence, as awarded in such case under the prevention of Food Adulteration Act is permitted as has also been held by the Hon'ble Apex Court in the matter of Haripada Das v. State of W.B. and another reported in 1998 (9) SCC 678.
6. After hearing the learned counsel for the appellants, learned A.G.A. and after perusing the judgment and order impugned as well as the averments contained in the present appeal, this Court is of the opinion that as 40 years have elapsed since the date of appeal and the appellants remained on bail during the pendency of appeal, this Court thinks appropriate for commutation of sentence whereby more than four decades have gone by.
7. This Court, therefore, directs the each of the appellants to deposit before the Chief Judicial Magistrate, Gorakhpur a sum of Rs. 5,000/- as fine in commutation of sentence of three years within a period of two months from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure.
8. Let a copy of this order be communicated to the Chief Judicial Magistrate, Gorakhpur for necessary compliance, through Registrar (Compliance) of this Court within 72 hours.
9. Office is directed to transmit the record of the instant case to the concerned Court below forthwith.
10. With the aforesaid directions, present appeal is finally disposed of.
Order Date :- 11.7.2025 S.Ali