State through C.B.I., Anti Corruption Branch, Chandigarh Vs. Sanjiv Bhalla & Anr.
EmailAppeal: Criminal Appeal Nos. 1338-1339 of 2014
[Arising out of Special Leave Petition (Crl.) Nos. 1002-1003 of 2012]
[From the Judgement and Order dated 04.05.2010 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 1230-SB and 1231-SB of 1999]
[Arising out of Special Leave Petition (Crl.) Nos. 1002-1003 of 2012]
[From the Judgement and Order dated 04.05.2010 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 1230-SB and 1231-SB of 1999]
Petitioner: State through C.B.I., Anti Corruption Branch, Chandigarh
Respondent: Sanjiv Bhalla & Anr.
Judges: Ranjana Prakash Desai & Madan B. Lokur, JJ.
Date of Judgment: Jul 04, 2014
Appearances:
Mr. Mukul Gupta, ASG, Mr. Rajiv Nanda, Mr. T.A. Khan, Mr. B.V. Balramdas, Mr. Arvind Kumar Sharma, Advocates, with him for the Appellant.
Mr. Ashok K. Mahajan, Mr. Shishpal Laler, Mr. N.P. Midha, Mr. Balbir Singh Gupta, Advocates, for the Respondents.
Mr. Ashok K. Mahajan, Mr. Shishpal Laler, Mr. N.P. Midha, Mr. Balbir Singh Gupta, Advocates, for the Respondents.
Head Note:
PRACTICE AND PROCEDURE
Probation of Offenders Act, 1958
Section 4 – Prevention of Corruption Act, 1988, Sections 13(1)(d), 13(2) – Penal Code, 1860, Sections 420 and 420 read with Section 120B – Probation – Grant of – Appeal against – Accused ‘G’, ‘B’ and one ‘P’ tried for offences under PC Act and IPC – Trial Court convicted each of them for offences under Section 420 read with 120B – Accused ‘B’ and ‘P’ further convicted under Section 420 – Accused ‘G’ alone convicted under PC Act – Appeals carried to High Court where death of ‘G’ noted – Other two accused only pleaded against quantum of sentence – High Court while maintaining their conviction under Sections 420, 420 read with 120B IPC and under Sections 13(1)(d), 13(2) of PC Act, directed release on probation for good conduct and on furnishing bonds – CBI (State) filed SLPs/ appeals, even making deceased ‘G’ as respondent – Deletion sought and allowed – Yet question of law posed by appellant CBI centering around release of ‘G’ on probation. Held (per Desai, J., Lokur, J. concurring) that High Court was not apprised of the fact that only ‘G’ was convicted under PC Act. Thus it erred in confirming a non-existent conviction of ‘B’ and ‘P’ under said Act. High Court took a lenient view and granted probation. Said order, at this distance of time, when period is already over and sureties are discharged, cannot be interfered with. Ratan Lal Arora’s [JT 2004 (5) SC 32] and A Parthiban’s [JT 2006 (12) SC 590] cases referred.
Probation of Offenders Act, 1958
Section 4 – Prevention of Corruption Act, 1988, Sections 13(1)(d), 13(2) – Penal Code, 1860, Sections 420 and 420 read with Section 120B – Probation – Grant of – Appeal against – Accused ‘G’, ‘B’ and one ‘P’ tried for offences under PC Act and IPC – Trial Court convicted each of them for offences under Section 420 read with 120B – Accused ‘B’ and ‘P’ further convicted under Section 420 – Accused ‘G’ alone convicted under PC Act – Appeals carried to High Court where death of ‘G’ noted – Other two accused only pleaded against quantum of sentence – High Court while maintaining their conviction under Sections 420, 420 read with 120B IPC and under Sections 13(1)(d), 13(2) of PC Act, directed release on probation for good conduct and on furnishing bonds – CBI (State) filed SLPs/ appeals, even making deceased ‘G’ as respondent – Deletion sought and allowed – Yet question of law posed by appellant CBI centering around release of ‘G’ on probation. Held (per Desai, J., Lokur, J. concurring) that High Court was not apprised of the fact that only ‘G’ was convicted under PC Act. Thus it erred in confirming a non-existent conviction of ‘B’ and ‘P’ under said Act. High Court took a lenient view and granted probation. Said order, at this distance of time, when period is already over and sureties are discharged, cannot be interfered with. Ratan Lal Arora’s [JT 2004 (5) SC 32] and A Parthiban’s [JT 2006 (12) SC 590] cases referred.
Held:
S.P. Gupta is dead and his name is deleted from the array of parties. To that extent this appeal has become infructuous and this cannot be disputed by counsel for the CBI. I am, however, unhappy to note that the High Court also did not notice that other accused were not convicted under the PC Act and observed that all were convicted under the PC Act. Thus, the appeal was presented before the High Court in a casual manner. The High Court did not notice that only S.P. Gupta was convicted for offence under the PC Act. It was the duty of the counsel to apprise the correct facts to the High Court and it was the responsibility of the High Court to correctly note the conviction and sentence of each of the accused. It could not have confirmed a non-existent conviction of the accused. (Para 8)
Accused Sanjiv Bhalla and accused Major Purshotam Singh (Retd.) were convicted under Section 120-B read with Section 420 of the IPC and under Section 420 of the IPC. The High Court took a lenient view and released the accused on probation of good conduct under Section 4(1) of the Probation of Offenders Act on their furnishing personal bonds in the sum of Rs. 10,000/- each. It appears to be the case of the appellant that the offence in which the accused were involved is grave and hence, the High Court wrongly exercised the discretion and released them on probation of good conduct. I am not inclined to entertain this submission because the offence was committed in 1996. The impugned judgment is dated 4/5/2010. We are in 2014. In the peculiar facts of this case, at this distance of time, I am not inclined to disturb the order releasing the accused on probation of good conduct. (Para 9)
(per Lokur, J.) – (Referring Ved Prakash’s, Hari Singh’s [JT 1988 (3) SC 711], Muddappa’s [JT 1999 (10) SC 221], Prem Chand’s, Dharam Pal’s, Om Prakash’s and other cases.)
In Hari Singh v. Sukhbir Singh [JT 1988 (3) SC 711] this Court held that extending the benefit of probation to first time offenders is generally not inappropriate. The humanizing principle was extended even to a conviction under Part II of Section 304 of the IPC in State of Karnataka v. Muddappa [JT 1999 (10) SC 221] in which case the benefit of release on probation was granted to the convict. (Para 15)
In Karamjit Singh v. State of Punjab [2009 (7) SCC 178] the convict, a first time offender, was denied the benefit of release on probation in view of the gravity of the offence and a large number of injuries on the victim. The conviction in this case was for an offence punishable under Section 307 of the IPC and Section 27 of the Arms Act. (Para 20)
Om Prakash related to an offence punishable under Section 323 and Section 325 read with Section 148 and Section 149 of the IPC. Manjappa relates to offences punishable under Sections 323, 325 and 504 of the IPC. There is no reference to any offence punishable under Section 279 or Section 304-A of the IPC. (Para 21)
Depending upon the facts of each case, causing death by what appears (but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 of the IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A of the IPC in an accident ‘where mens rea remains absent’ and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A of the IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A of the IPC, the convict must be released on probation – it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed. (Para 25)
Given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanizing mission must not be forgotten. (Para 27)
To sum up:
(a) For awarding a just sentence, the Trial Judge must consider the provisions of the Probation of Offenders Act and the provisions on probation in the Criminal Procedure Code;
(b) When it is not possible to release a convict on probation, the Trial Judge must record his or her reasons;
(c) The grant of compensation to the victim of a crime is equally a part of just sentencing;
(d) When it is not possible to grant compensation to the victim of a crime, the Trial Judge must record his or her reasons; and
(e) The Trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case. (Para 31)
Cases Reffered:
1.Jitendra Singh v. State of U.P. [JT 2013 (11) SC 152] (Para 29)
2.Ajahar Ali v. State of West Bengal [JT 2013 (13) SC 212] (Para 26)
3.Ankush Shivaji Gaikwad v. State of Maharashtra [JT 2013 (7) SC 26] (Para 29)
4.State v. Sanjeev Nanda [JT 2012 (7) SC 251] (Para 24)
5.Alister Anthony Pareira v. State of Maharashtra [JT 2012 (1) SC 100] (Para 23)
6.State of Punjab v. Balwinder Singh [JT 2012 (1) SC 43] (Para 22)
7.Karamjit Singh v. State of Punjab [2009 (7) SCC 178] (Para 20)
8.State represented by Inspector of Police, Pudukottai, T.N. v. A Parthiban [JT 2006 (12) SC 590] (Para 8)
9.State of Himachal Pradesh v. Dharam Pal [2004 (9) SCC 681] (Para 16)
10.State through S.P., New Delhi v. Ratan Lal Arora [JT 2004 (5) SC 32] (Para 8)
11.Om Prakash v. State of Haryana [2001 (10) SCC 477] (Para 17)
12.Dalbir Singh v. State of Haryana [JT 2000 (5) SC 463] (Para 18)
13.State of Karnataka v. Muddappa [JT 1999 (10) SC 221] (Para 15)
14.State of Haryana v. Prem Chand [1997 (7) SCC 756] (Para 16)
15.Hari Singh v. Sukhbir Singh [JT 1988 (3) SC 711] (Para 15)
16.Ved Prakash v. State of Haryana [1981 (1) SCC 447] (Para 13)
17.Bachan Singh v. State of Punjab [1980 (2) SCC 684] (Para 12)
JUDGEMENT:
(Smt.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The High Court of Punjab and Haryana by judgment and order dated 04/05/2010 disposed of two criminal appeals being Criminal Appeal Nos.1230-SB and 1231-SB of 1999 since they arose out of a common judgment. The said judgment and order is impugned in the present appeals.
3. For disposal of these appeals it is not necessary to narrate the facts in great detail. FIR was registered on 31/05/1996 against S.P. Gupta, the then Divisional Manager, National Insurance Company Limited, Hoshiarpur, R.P. Chopra, Assistant Administrative Officer, National Insurance Company Limited, Hoshiarpur, Sanjiv Bhalla, Surveyor and Major Purshotam Singh (Retd.) on the basis of a source information report. It was, inter alia, alleged in the FIR that S.P. Gupta while posted and functioning as Divisional Manager in National Insurance Company Limited, Hoshiarpur, entered into a criminal conspiracy with R.P. Chopra, Assistant Administrative Officer, National Insurance Company Limited, Hoshiarpur, Sanjiv Bhalla, Surveyor and Major Purshotam Singh (Retd.) – proprietor of M/s. Kisan Poultry Farm, District Kangra and some other unknown persons with the object of cheating the National Insurance Company Limited by abusing his official position as a public servant and, in pursuance of the said conspiracy S.P. Gupta passed a fire claim of Rs.7,02,873/- and also made part payment of Rs.2,00,000/- to Major Purshotam Singh (Retd.) on the basis of a false claim and that caused pecuniary loss to the National Insurance Company Limited. The FIR further stated how S.P. Gupta, Divisional Manager of National Insurance Company Limited abused his official position and by corrupt and illegal means obtained pecuniary advantage for himself or for his co-accused.
4. The Central Bureau of Investigation (for short, `the CBI’) investigated the complaint and upon completion of the investigation, filed charge-sheet against (1) S.P. Gupta, (2) Sanjiv Bhalla and (3) Major Purshotam Singh (Retd.) for offences under Section 120-B read with Section 420 of the IPC, Section 420 of the IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, `the PC Act’). The CBI examined 16 witnesses in support of its case. The accused denied the prosecution case. The Special Judge, CBI, Patiala, by his judgment and order dated 30/11/1999 convicted each of the accused under Section 120-B read with Section 420 of the IPC and sentenced them for the said offence to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. The Special Judge further convicted Sanjiv Bhalla and Major Purshotam Singh (Retd.) under Section 420 of the IPC and sentenced them to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs. 3,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. Only accused S.P. Gupta was convicted under Section 13(1)(d) read with Section 13(2) of the PC Act and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months.
5. The accused carried appeals to the High Court of Punjab and Haryana. The High Court, in the impugned order, noted that during the pendency of the appeals accused S.P. Gupta had died and, therefore, proceedings against him had abated. Counsel for the accused made a statement that he does not want to challenge the conviction of the appellants on merits and he confines his arguments only to the quantum of sentence.
6. Attention of the High Court was not drawn to the fact that only accused S.P. Gupta, who had died, was convicted for offence under the PC Act. Noting that counsel appearing for appellants had restricted the appeals only to the quantum of sentence, the High Court observed that since the accused were facing mental agony of the trial and they had already suffered imprisonment for twenty days during the trial after conviction they should be released on sentence already undergone by them. The High Court observed that a lenient view in the matter of sentence should be taken and directed that conviction recorded against the accused under Section 120-B read with Section 420 of the IPC, Section 420 of the IPC and Section 13(1)(d) read with Section 13(2) of the PC Act shall be maintained. However, they shall be released on probation of good conduct under Section 4(i) of the Probation of Offenders Act, 1958, on their furnishing personal bonds in the sum of Rs.10,000/- each with one surety each in the like amount. Since only accused S.P. Gupta was convicted under the provisions of the PC Act, the High Court could not have observed that all the accused were convicted under the provisions of the PC Act and could not have confirmed the said non-existent conviction.
7. The CBI, without applying its mind to the crucial fact that except accused SP Gupta none of the accused was convicted under the provisions of the PC Act, filed instant appeals in this Court making grievance about their release on probation of good conduct under the Probation of Offenders Act, 1958 despite their alleged conviction under the PC Act. Initially, in the appeal arising out of Criminal Appeal No.1231-SB of 1999 filed in the High Court, the CBI made S.P. Gupta a party respondent. As to how a dead man could be made a party respondent in a criminal appeal is not understood by this Court. It appears that having realized its mistake, on 27/01/2012 a submission was made in this Court that S.P. Gupta who was an accused before the trial court was also impleaded as one of the respondents, however, it appears from the High Court judgment that S.P. Gupta had died even before the case was heard by the High Court, and, therefore, some time may be granted to make necessary corrections in the appeals. This Court granted two weeks time to the CBI to make necessary corrections. Thereafter, amended memo of parties was filed in which S.P. Gupta’s name was deleted. However, a bare look at the questions of law-`A’ and `C’ framed by the CBI in the appeals makes it clear that they center around S.P. Gupta’s release on probation of good conduct under Section 4(1) of the Probation of Offenders Act, 1958. We may reproduce the said questions of law:
‘A. Whether provisions of Probation of Offenders Act are applicable and/or can be granted in relation to offences punishable under the Prevention of Corruption Act?
B. … … …
C. Whether the impugned order in contrary to the law laid down by this Hon’ble Court in [JT 2004 (5) SC 352] in the matter of State through SP v. Rattan Lal Arora where in this Hon’ble Court has held that the principles enunciated under the provisions of Probation of Offenders Act cannot be extended to the conviction under the Prevention of Corruption Act?’
8. Reference to judgment of this Court State through S.P., New Delhi v. Ratan Lal Arora [JT 2004 (5) SC 32 : AIR 2004 SC 2364] in the appeal memo itself is sufficient to indicate that the main plank of CBI’s submissions is that a person who is convicted under the PC Act cannot be released on probation of good conduct under the provisions of the Probation of Offenders Act, 1958. That a person convicted under the provisions of the PC Act cannot be granted benefit of release on probation of good conduct under Section 360 of the Code of Criminal Procedure or under the provisions of the Probation of Offenders Act, 1958 is well settled by a catena of judgments. In State v. Ratan Lal Arora this Court has stated so. This Court has again reiterated this in State represented by Inspector of Police, Pudukottai, T.N. v. A Parthiban [JT 2006 (12) SC 590 : 2006 (11) SCC 473]. But, it is really not necessary for us to go into this because S.P. Gupta is dead and his name is deleted from the array of parties. To that extent this appeal has become infructuous and this cannot be disputed by counsel for the CBI. I am, however, unhappy to note that the High Court also did not notice that other accused were not convicted under the PC Act and observed that all were convicted under the PC Act. Thus, the appeal was presented before the High Court in a casual manner. The High Court did not notice that only S.P. Gupta was convicted for offence under the PC Act. It was the duty of the counsel to apprise the correct facts to the High Court and it was the responsibility of the High Court to correctly note the conviction and sentence of each of the accused. It could not have confirmed a non-existent conviction of the accused.
9. The only challenge which remains to be dealt with is that accused Sanjiv Bhalla and accused Major Purshotam Singh (Retd.) were wrongly released on probation of good conduct. As already noted, accused Sanjiv Bhalla and accused Major Purshotam Singh (Retd.) were convicted under Section 120-B read with Section 420 of the IPC and under Section 420 of the IPC. They were sentenced for two years and 2 years respectively for the said offences. Substantive sentences were ordered to run concurrently. The High Court was moved by twenty days imprisonment undergone by the accused during trial and the agony of trial suffered by them. The High Court took a lenient view and released the accused on probation of good conduct under Section 4(1) of the Probation of Offenders Act on their furnishing personal bonds in the sum of Rs. 10,000/- each. It appears to be the case of the appellant that the offence in which the accused were involved is grave and hence, the High Court wrongly exercised the discretion and released them on probation of good conduct. I am not inclined to entertain this submission because the offence was committed in 1996. The impugned judgment is dated 4/5/2010. We are in 2014. Accused Major Purshotam Singh (Retd.) has filed affidavit in this Court stating that he has already completed his probation period and his surety has been discharged by Special Judge, CBI Patiala by his order dated 23/7/2012. This Court does not have the necessary particulars about accused Sanjiv Bhalla but by now his surety must have been also discharged. In any event, in the peculiar facts of this case, at this distance of time, I am not inclined to disturb the order releasing the accused on probation of good conduct. It is, therefore, not necessary to refer to the judgments cited by the counsel on this aspect.
10. In view of the above, I find no merit in the appeals. The appeals are dismissed.
Madan B. Lokur, J.
11. While agreeing that the appeals deserve dismissal, I thought it necessary to express my views on sentencing, particularly with regard to the release of a convict on probation.
12. Every accused person need not be detained, arrested and imprisoned – liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry ‘off with his head’ – and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed (Bachan Singh v. State of Punjab [1980 (2) SCC 684]). Just sentencing is as much an aspect of justice as a fair trial and every sentencing judge would do well to ask: Is the sentence being awarded fair and just?
13. In Ved Prakash v. State of Haryana [1981 (1) SCC 447] this Court observed that:
‘[I]t is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant.’
13.1. A little later in the judgment, it was held that:
[E]ven if the Bar does not help, the Bench must fulfil the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act.’
14. In other words, this Court was of the view that punishment should be rehabilitative and humanizing and, therefore, need not necessarily be retributive in character.
15. Subsequently, in Hari Singh v. Sukhbir Singh [JT 1988 (3) SC 711 : 1988 (4) SCC 551] this Court held that extending the benefit of probation to first time offenders is generally not inappropriate. The humanizing principle was extended even to a conviction under Part II of Section 304 of the IPC in State of Karnataka v. Muddappa [JT 1999 (10) SC 221 : 1999 (5) SCC 732] in which case the benefit of release on probation was granted to the convict.
16. The benefit of the provisions of Section 6 of the Probation of Offenders Act (relating to restrictions on the imprisonment of offenders below 21 years of age)[1*] was extended to persons convicted of attempted rape. This was in State of Haryana v. Prem Chand [1997 (7) SCC 756] which was followed in State of Himachal Pradesh v. Dharam Pal [2004 (9) SCC 681].
17. Similarly, in Om Prakash v. State of Haryana [2001 (10) SCC 477] the convicts, first time offenders, were given the benefit of Section 360 and Section 361 of the Criminal Procedure Code and it was held that reasons ought to have been recorded for the denial of such a benefit.[2*] The offence in this case was punishable under Section 323 and Section 325 read with Section 148 and Section 149 of the IPC.
18. In the meanwhile, however, in Dalbir Singh v. State of Haryana [JT 2000 (5) SC 463 : 2000 (5) SCC 82] this Court declined to give to the appellant, convicted of an offence punishable under Section 279 and Section 304-A of the IPC, the benefit of Section 4 of the Probation of Offenders Act[3*] keeping in mind ‘the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families.’ It was held that,
‘[C]riminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.’
19. This decision, in which a cyclist was killed, resulted in a sentence of three months and one year respectively for the violation of the two Sections mentioned above. This decision, in a sense, was a precursor to a stricter application by this Court of the provisions for releasing a convict on probation and went contrary to the grain of earlier decisions of this Court.
20. In Karamjit Singh v. State of Punjab [2009 (7) SCC 178] the convict, a first time offender, was denied the benefit of release on probation in view of the gravity of the offence and a large number of injuries on the victim. The conviction in this case was for an offence punishable under Section 307 of the IPC and Section 27 of the Arms Act. This decision contains an inadvertent error, to the following effect:
‘In Manjappa v. State of Karnataka [JT 2007 (7) SC 226] this Court considered the scope of grant of relief under the provisions of Section 361 CrPC or under the provisions of the Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash v. State of Haryana, and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remains absent as in a case of rash and negligent driving under Section 279 read with Section 304-A IPC.’
21. As has been noticed above, Om Prakash related to an offence punishable under Section 323 and Section 325 read with Section 148 and Section 149 of the IPC. Manjappa relates to offences punishable under Sections 323, 325 and 504 of the IPC. There is no reference to any offence punishable under Section 279 or Section 304-A of the IPC. However, it appears that this Court desired to convey that an offence punishable under Section 279 and Section 304-A of the IPC is the result of an accident and is, therefore, not `grave’ since there is an absence of mens rea.
22. Notwithstanding this, in State of Punjab v. Balwinder Singh [JT 2012 (1) SC 43 : 2012 (2) SCC 182] it was again held that the punishment for causing death by rash or negligent driving should be deterrent, in view of the frequency of such incidents. The accident in this case resulted in the death of five persons, and the punishment was six months rigorous imprisonment with a fine of Rs. 5000/-.
23. In Alister Anthony Pareira v. State of Maharashtra [JT 2012 (1) SC 100 : 2012 (2) SCC 648] the convict’s driving resulted in the death of seven persons and injuries to eight others. This Court upheld his conviction by the High Court for offences punishable under Part II of Section 304, Sections 338 and 337 of the IPC and sentenced him to rigorous imprisonment for three years and a fine of Rs. 5 lakhs. This Court also observed that the case was not a fit one for releasing the convict on probation. It was also observed that our country has the dubious distinction of registering the maximum number of deaths in road accidents and that ‘It is high time that lawmakers revisit the sentencing policy reflected in Section 304-A IPC.’
24. In State v. Sanjeev Nanda [JT 2012 (7) SC 251 : 2012 (8) SCC 450] six persons were killed and one injured as a result of the convict’s driving. The Trial Court convicted him for an offence punishable under Section 304 Part II of the IPC and sentenced him to undergo rigorous imprisonment for five years. On appeal, the High Court found the convict guilty of commission of an offence punishable under Section 304-A of the IPC and reduced the sentence to two years. By the time the appeal filed by the State was taken up for disposal, the convict completed his term of imprisonment. That being so, while restoring the conviction under Section 304 Part II of the IPC, this Court did not deem it appropriate to enhance the sentence awarded. Several reasons were given for this, including the fact that the convict had given compensation to the families of the deceased to the extent of Rs. 10 lakhs each and to the family of the injured to the extent of Rs. 5 lakhs. The convict was further directed to deposit an amount of Rs. 50 lakhs with the Central Government for paying compensation to victims of other hit and run cases and to do community service for two years.
25. It does appear that depending upon the facts of each case, causing death by what appears (but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 of the IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A of the IPC in an accident ‘where mens rea remains absent’ and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A of the IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A of the IPC, the convict must be released on probation – it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case.
26. In Ajahar Ali v. State of West Bengal [JT 2013 (13) SC 212 : 2013 (10) SCC 31] the appellant was convicted of an offence of outraging the modesty of a woman punishable under Section 354 of the IPC. This was held to be ‘a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded’ and so the benefit of the Probation of Offenders Act was not given to him. This may be contrasted with Prem Chand and subsequently Dharam Pal where the convict was guilty of a far more serious offence of attempted rape and yet granted the benefit of the Probation of Offenders Act, notwithstanding the nature of the crime, and only because of his age.
27. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift – from punishment being a humanizing mission to punishment being deterrent and retributive. This shift may be necessary in today’s social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the judge is to strike a fine balance between releasing a convict after admonition[4*] or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanizing mission must not be forgotten.
28. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof[5*] for payment of compensation to the victim of a crime (as does Section 357 of the Criminal Procedure Code). Yet, additional changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?
29. In Ankush Shivaji Gaikwad v. State of Maharashtra [JT 2013 (7) SC 26 : 2013 (6) SCC 770] and Jitendra Singh v. State of U.P. [JT 2013 (11) SC 152 : 2013 (11) SCC 193] this Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:
‘[W]hile the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation.’
30. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Criminal Procedure Code in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the Trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a Trial Judge to utilize all these tools given by Parliament for ensuring a fair and just termination of a criminal case.
31. To sum up:
(a) For awarding a just sentence, the Trial Judge must consider the provisions of the Probation of Offenders Act and the provisions on probation in the Criminal Procedure Code;
(b) When it is not possible to release a convict on probation, the Trial Judge must record his or her reasons;
(c) The grant of compensation to the victim of a crime is equally a part of just sentencing;
(d) When it is not possible to grant compensation to the victim of a crime, the Trial Judge must record his or her reasons; and
(e) The Trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case.
32. The appeals are dismissed.
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1. Leave granted.
2. The High Court of Punjab and Haryana by judgment and order dated 04/05/2010 disposed of two criminal appeals being Criminal Appeal Nos.1230-SB and 1231-SB of 1999 since they arose out of a common judgment. The said judgment and order is impugned in the present appeals.
3. For disposal of these appeals it is not necessary to narrate the facts in great detail. FIR was registered on 31/05/1996 against S.P. Gupta, the then Divisional Manager, National Insurance Company Limited, Hoshiarpur, R.P. Chopra, Assistant Administrative Officer, National Insurance Company Limited, Hoshiarpur, Sanjiv Bhalla, Surveyor and Major Purshotam Singh (Retd.) on the basis of a source information report. It was, inter alia, alleged in the FIR that S.P. Gupta while posted and functioning as Divisional Manager in National Insurance Company Limited, Hoshiarpur, entered into a criminal conspiracy with R.P. Chopra, Assistant Administrative Officer, National Insurance Company Limited, Hoshiarpur, Sanjiv Bhalla, Surveyor and Major Purshotam Singh (Retd.) – proprietor of M/s. Kisan Poultry Farm, District Kangra and some other unknown persons with the object of cheating the National Insurance Company Limited by abusing his official position as a public servant and, in pursuance of the said conspiracy S.P. Gupta passed a fire claim of Rs.7,02,873/- and also made part payment of Rs.2,00,000/- to Major Purshotam Singh (Retd.) on the basis of a false claim and that caused pecuniary loss to the National Insurance Company Limited. The FIR further stated how S.P. Gupta, Divisional Manager of National Insurance Company Limited abused his official position and by corrupt and illegal means obtained pecuniary advantage for himself or for his co-accused.
4. The Central Bureau of Investigation (for short, `the CBI’) investigated the complaint and upon completion of the investigation, filed charge-sheet against (1) S.P. Gupta, (2) Sanjiv Bhalla and (3) Major Purshotam Singh (Retd.) for offences under Section 120-B read with Section 420 of the IPC, Section 420 of the IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, `the PC Act’). The CBI examined 16 witnesses in support of its case. The accused denied the prosecution case. The Special Judge, CBI, Patiala, by his judgment and order dated 30/11/1999 convicted each of the accused under Section 120-B read with Section 420 of the IPC and sentenced them for the said offence to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. The Special Judge further convicted Sanjiv Bhalla and Major Purshotam Singh (Retd.) under Section 420 of the IPC and sentenced them to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs. 3,000/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. Only accused S.P. Gupta was convicted under Section 13(1)(d) read with Section 13(2) of the PC Act and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months.
5. The accused carried appeals to the High Court of Punjab and Haryana. The High Court, in the impugned order, noted that during the pendency of the appeals accused S.P. Gupta had died and, therefore, proceedings against him had abated. Counsel for the accused made a statement that he does not want to challenge the conviction of the appellants on merits and he confines his arguments only to the quantum of sentence.
6. Attention of the High Court was not drawn to the fact that only accused S.P. Gupta, who had died, was convicted for offence under the PC Act. Noting that counsel appearing for appellants had restricted the appeals only to the quantum of sentence, the High Court observed that since the accused were facing mental agony of the trial and they had already suffered imprisonment for twenty days during the trial after conviction they should be released on sentence already undergone by them. The High Court observed that a lenient view in the matter of sentence should be taken and directed that conviction recorded against the accused under Section 120-B read with Section 420 of the IPC, Section 420 of the IPC and Section 13(1)(d) read with Section 13(2) of the PC Act shall be maintained. However, they shall be released on probation of good conduct under Section 4(i) of the Probation of Offenders Act, 1958, on their furnishing personal bonds in the sum of Rs.10,000/- each with one surety each in the like amount. Since only accused S.P. Gupta was convicted under the provisions of the PC Act, the High Court could not have observed that all the accused were convicted under the provisions of the PC Act and could not have confirmed the said non-existent conviction.
7. The CBI, without applying its mind to the crucial fact that except accused SP Gupta none of the accused was convicted under the provisions of the PC Act, filed instant appeals in this Court making grievance about their release on probation of good conduct under the Probation of Offenders Act, 1958 despite their alleged conviction under the PC Act. Initially, in the appeal arising out of Criminal Appeal No.1231-SB of 1999 filed in the High Court, the CBI made S.P. Gupta a party respondent. As to how a dead man could be made a party respondent in a criminal appeal is not understood by this Court. It appears that having realized its mistake, on 27/01/2012 a submission was made in this Court that S.P. Gupta who was an accused before the trial court was also impleaded as one of the respondents, however, it appears from the High Court judgment that S.P. Gupta had died even before the case was heard by the High Court, and, therefore, some time may be granted to make necessary corrections in the appeals. This Court granted two weeks time to the CBI to make necessary corrections. Thereafter, amended memo of parties was filed in which S.P. Gupta’s name was deleted. However, a bare look at the questions of law-`A’ and `C’ framed by the CBI in the appeals makes it clear that they center around S.P. Gupta’s release on probation of good conduct under Section 4(1) of the Probation of Offenders Act, 1958. We may reproduce the said questions of law:
‘A. Whether provisions of Probation of Offenders Act are applicable and/or can be granted in relation to offences punishable under the Prevention of Corruption Act?
B. … … …
C. Whether the impugned order in contrary to the law laid down by this Hon’ble Court in [JT 2004 (5) SC 352] in the matter of State through SP v. Rattan Lal Arora where in this Hon’ble Court has held that the principles enunciated under the provisions of Probation of Offenders Act cannot be extended to the conviction under the Prevention of Corruption Act?’
8. Reference to judgment of this Court State through S.P., New Delhi v. Ratan Lal Arora [JT 2004 (5) SC 32 : AIR 2004 SC 2364] in the appeal memo itself is sufficient to indicate that the main plank of CBI’s submissions is that a person who is convicted under the PC Act cannot be released on probation of good conduct under the provisions of the Probation of Offenders Act, 1958. That a person convicted under the provisions of the PC Act cannot be granted benefit of release on probation of good conduct under Section 360 of the Code of Criminal Procedure or under the provisions of the Probation of Offenders Act, 1958 is well settled by a catena of judgments. In State v. Ratan Lal Arora this Court has stated so. This Court has again reiterated this in State represented by Inspector of Police, Pudukottai, T.N. v. A Parthiban [JT 2006 (12) SC 590 : 2006 (11) SCC 473]. But, it is really not necessary for us to go into this because S.P. Gupta is dead and his name is deleted from the array of parties. To that extent this appeal has become infructuous and this cannot be disputed by counsel for the CBI. I am, however, unhappy to note that the High Court also did not notice that other accused were not convicted under the PC Act and observed that all were convicted under the PC Act. Thus, the appeal was presented before the High Court in a casual manner. The High Court did not notice that only S.P. Gupta was convicted for offence under the PC Act. It was the duty of the counsel to apprise the correct facts to the High Court and it was the responsibility of the High Court to correctly note the conviction and sentence of each of the accused. It could not have confirmed a non-existent conviction of the accused.
9. The only challenge which remains to be dealt with is that accused Sanjiv Bhalla and accused Major Purshotam Singh (Retd.) were wrongly released on probation of good conduct. As already noted, accused Sanjiv Bhalla and accused Major Purshotam Singh (Retd.) were convicted under Section 120-B read with Section 420 of the IPC and under Section 420 of the IPC. They were sentenced for two years and 2 years respectively for the said offences. Substantive sentences were ordered to run concurrently. The High Court was moved by twenty days imprisonment undergone by the accused during trial and the agony of trial suffered by them. The High Court took a lenient view and released the accused on probation of good conduct under Section 4(1) of the Probation of Offenders Act on their furnishing personal bonds in the sum of Rs. 10,000/- each. It appears to be the case of the appellant that the offence in which the accused were involved is grave and hence, the High Court wrongly exercised the discretion and released them on probation of good conduct. I am not inclined to entertain this submission because the offence was committed in 1996. The impugned judgment is dated 4/5/2010. We are in 2014. Accused Major Purshotam Singh (Retd.) has filed affidavit in this Court stating that he has already completed his probation period and his surety has been discharged by Special Judge, CBI Patiala by his order dated 23/7/2012. This Court does not have the necessary particulars about accused Sanjiv Bhalla but by now his surety must have been also discharged. In any event, in the peculiar facts of this case, at this distance of time, I am not inclined to disturb the order releasing the accused on probation of good conduct. It is, therefore, not necessary to refer to the judgments cited by the counsel on this aspect.
10. In view of the above, I find no merit in the appeals. The appeals are dismissed.
Madan B. Lokur, J.
11. While agreeing that the appeals deserve dismissal, I thought it necessary to express my views on sentencing, particularly with regard to the release of a convict on probation.
12. Every accused person need not be detained, arrested and imprisoned – liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry ‘off with his head’ – and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed (Bachan Singh v. State of Punjab [1980 (2) SCC 684]). Just sentencing is as much an aspect of justice as a fair trial and every sentencing judge would do well to ask: Is the sentence being awarded fair and just?
13. In Ved Prakash v. State of Haryana [1981 (1) SCC 447] this Court observed that:
‘[I]t is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant.’
13.1. A little later in the judgment, it was held that:
[E]ven if the Bar does not help, the Bench must fulfil the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act.’
14. In other words, this Court was of the view that punishment should be rehabilitative and humanizing and, therefore, need not necessarily be retributive in character.
15. Subsequently, in Hari Singh v. Sukhbir Singh [JT 1988 (3) SC 711 : 1988 (4) SCC 551] this Court held that extending the benefit of probation to first time offenders is generally not inappropriate. The humanizing principle was extended even to a conviction under Part II of Section 304 of the IPC in State of Karnataka v. Muddappa [JT 1999 (10) SC 221 : 1999 (5) SCC 732] in which case the benefit of release on probation was granted to the convict.
16. The benefit of the provisions of Section 6 of the Probation of Offenders Act (relating to restrictions on the imprisonment of offenders below 21 years of age)[1*] was extended to persons convicted of attempted rape. This was in State of Haryana v. Prem Chand [1997 (7) SCC 756] which was followed in State of Himachal Pradesh v. Dharam Pal [2004 (9) SCC 681].
17. Similarly, in Om Prakash v. State of Haryana [2001 (10) SCC 477] the convicts, first time offenders, were given the benefit of Section 360 and Section 361 of the Criminal Procedure Code and it was held that reasons ought to have been recorded for the denial of such a benefit.[2*] The offence in this case was punishable under Section 323 and Section 325 read with Section 148 and Section 149 of the IPC.
18. In the meanwhile, however, in Dalbir Singh v. State of Haryana [JT 2000 (5) SC 463 : 2000 (5) SCC 82] this Court declined to give to the appellant, convicted of an offence punishable under Section 279 and Section 304-A of the IPC, the benefit of Section 4 of the Probation of Offenders Act[3*] keeping in mind ‘the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families.’ It was held that,
‘[C]riminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.’
19. This decision, in which a cyclist was killed, resulted in a sentence of three months and one year respectively for the violation of the two Sections mentioned above. This decision, in a sense, was a precursor to a stricter application by this Court of the provisions for releasing a convict on probation and went contrary to the grain of earlier decisions of this Court.
20. In Karamjit Singh v. State of Punjab [2009 (7) SCC 178] the convict, a first time offender, was denied the benefit of release on probation in view of the gravity of the offence and a large number of injuries on the victim. The conviction in this case was for an offence punishable under Section 307 of the IPC and Section 27 of the Arms Act. This decision contains an inadvertent error, to the following effect:
‘In Manjappa v. State of Karnataka [JT 2007 (7) SC 226] this Court considered the scope of grant of relief under the provisions of Section 361 CrPC or under the provisions of the Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash v. State of Haryana, and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remains absent as in a case of rash and negligent driving under Section 279 read with Section 304-A IPC.’
21. As has been noticed above, Om Prakash related to an offence punishable under Section 323 and Section 325 read with Section 148 and Section 149 of the IPC. Manjappa relates to offences punishable under Sections 323, 325 and 504 of the IPC. There is no reference to any offence punishable under Section 279 or Section 304-A of the IPC. However, it appears that this Court desired to convey that an offence punishable under Section 279 and Section 304-A of the IPC is the result of an accident and is, therefore, not `grave’ since there is an absence of mens rea.
22. Notwithstanding this, in State of Punjab v. Balwinder Singh [JT 2012 (1) SC 43 : 2012 (2) SCC 182] it was again held that the punishment for causing death by rash or negligent driving should be deterrent, in view of the frequency of such incidents. The accident in this case resulted in the death of five persons, and the punishment was six months rigorous imprisonment with a fine of Rs. 5000/-.
23. In Alister Anthony Pareira v. State of Maharashtra [JT 2012 (1) SC 100 : 2012 (2) SCC 648] the convict’s driving resulted in the death of seven persons and injuries to eight others. This Court upheld his conviction by the High Court for offences punishable under Part II of Section 304, Sections 338 and 337 of the IPC and sentenced him to rigorous imprisonment for three years and a fine of Rs. 5 lakhs. This Court also observed that the case was not a fit one for releasing the convict on probation. It was also observed that our country has the dubious distinction of registering the maximum number of deaths in road accidents and that ‘It is high time that lawmakers revisit the sentencing policy reflected in Section 304-A IPC.’
24. In State v. Sanjeev Nanda [JT 2012 (7) SC 251 : 2012 (8) SCC 450] six persons were killed and one injured as a result of the convict’s driving. The Trial Court convicted him for an offence punishable under Section 304 Part II of the IPC and sentenced him to undergo rigorous imprisonment for five years. On appeal, the High Court found the convict guilty of commission of an offence punishable under Section 304-A of the IPC and reduced the sentence to two years. By the time the appeal filed by the State was taken up for disposal, the convict completed his term of imprisonment. That being so, while restoring the conviction under Section 304 Part II of the IPC, this Court did not deem it appropriate to enhance the sentence awarded. Several reasons were given for this, including the fact that the convict had given compensation to the families of the deceased to the extent of Rs. 10 lakhs each and to the family of the injured to the extent of Rs. 5 lakhs. The convict was further directed to deposit an amount of Rs. 50 lakhs with the Central Government for paying compensation to victims of other hit and run cases and to do community service for two years.
25. It does appear that depending upon the facts of each case, causing death by what appears (but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 of the IPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A of the IPC in an accident ‘where mens rea remains absent’ and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A of the IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A of the IPC, the convict must be released on probation – it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case.
26. In Ajahar Ali v. State of West Bengal [JT 2013 (13) SC 212 : 2013 (10) SCC 31] the appellant was convicted of an offence of outraging the modesty of a woman punishable under Section 354 of the IPC. This was held to be ‘a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded’ and so the benefit of the Probation of Offenders Act was not given to him. This may be contrasted with Prem Chand and subsequently Dharam Pal where the convict was guilty of a far more serious offence of attempted rape and yet granted the benefit of the Probation of Offenders Act, notwithstanding the nature of the crime, and only because of his age.
27. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift – from punishment being a humanizing mission to punishment being deterrent and retributive. This shift may be necessary in today’s social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the judge is to strike a fine balance between releasing a convict after admonition[4*] or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanizing mission must not be forgotten.
28. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof[5*] for payment of compensation to the victim of a crime (as does Section 357 of the Criminal Procedure Code). Yet, additional changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?
29. In Ankush Shivaji Gaikwad v. State of Maharashtra [JT 2013 (7) SC 26 : 2013 (6) SCC 770] and Jitendra Singh v. State of U.P. [JT 2013 (11) SC 152 : 2013 (11) SCC 193] this Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:
‘[W]hile the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation.’
30. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Criminal Procedure Code in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the Trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a Trial Judge to utilize all these tools given by Parliament for ensuring a fair and just termination of a criminal case.
31. To sum up:
(a) For awarding a just sentence, the Trial Judge must consider the provisions of the Probation of Offenders Act and the provisions on probation in the Criminal Procedure Code;
(b) When it is not possible to release a convict on probation, the Trial Judge must record his or her reasons;
(c) The grant of compensation to the victim of a crime is equally a part of just sentencing;
(d) When it is not possible to grant compensation to the victim of a crime, the Trial Judge must record his or her reasons; and
(e) The Trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case.
32. The appeals are dismissed.
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