The State Of Bombay vs S.L. Apte on 2 March, 1956
Our attention has also been drawn to another decision of this Court in Emperor v. Bhogilal (1981) 33
Bom. L.R. 648 where Beaumont C.J., and Murphy J, had occasion to consider a similar question. In this case the accused was found carrying boxes containing salt and stamped with the words "Swarajya Sabha" and "Gujarat Prantik Samiti", an association declared unlawful, and he was convicted under Section 47(c) of the Bombay Salt Act for being in possession of contraband salt, as well as under Section 17(1) of the Criminal Law Amendment Act for assisting the operation of an unlawful association. When this double conviction and punishment was brought to the notice of the learned Sessions Judge at Ahmedabad, he made a reference to this Court pointing out that the double punishment was illegal and requesting that appropriate orders should be passed against the accused in accordance with law. The learned Judges accepted the reference and, as the judgment delivered by Beaumont C.J. points out, the sentence passed against the accused for the second offence under Section 17(1) of the Criminal Law Amendment Act was set aside. In effect the accused was convicted of both the offences but sentenced only for one of them, the sentence imposed upon him by the learned Magistrate in respect of the other offence having been set aside. It would thus appear that if the present respondents had been charged properly both under Section 409 of the Indian Penal Code and Section 105 of the Insurance Act, it would have been open to the Court to convict the respondents of both the offences while imposing a sentence or punishment on them for either of the two but not for both. Even so, it cannot be disputed that where an accused person is sought to be tried on a second occasion, it would be idle to prosecute him solely with the object of convicting him without imposing on him any sentence at all, because the normal rule laid down in Section 258(2) of the Criminal Procedure Code requires that on conviction of an accused person the Court shall pass sentence upon him according to law. This position is in fact not seriously disputed before us by the learned Government Pleader. He, however, contends that under Section 105(1) of the Insurance Act it would be open to the Court to pass an order for restitution as he describes it, without imposing any sentence of fine; and, as I have already mentioned, such an order does not, according to the learned Government Pleader, amount to a punishment.