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TMI Blog1965 (12) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... espect 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 offence under S. 3 (1) 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 ₹ 1,5001- but did not pass a sentence of imprisonment. The respondent was also found guilty of an offence under s. 4(1) of the Act for living on the earning of prostitution and sentenced by him to pay a fine of ₹ 5001-. The respondent challenged his conviction in respect 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 pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the use of the word punishable in prescribing a punishment . The decision relied upon by the High Court is Emperor v. Peter D Souza(A.I.R. 1949 Bom. (41 F.B)). 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescribed by it for an offence or to making it obligatory upon it to pass a particular sentence or sentences so prescribed. 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(1) as it was before its amendment in the year 1946. There the Legislature had said that the convicted person shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 construed 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, what the nature of punishment is to be %must be ascertained by a considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 of 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 one year and not more than three years and also a fine which may extend to ₹ 2,000/-. These are the punishments with respect to a first offence and higher punishments are prescribed in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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