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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 ..... 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 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 offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and also with fine 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;rupees one thousand" respectively merely give discretion to the court in so far as the extent of imprisonment or fine 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 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the provision. By using the expression "shall be punishable" the Legislature has made it clear that the offender s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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