Punjab-Haryana High Court
Sarwan Ram vs State Of Punjab & Ors on 4 August, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRR-3165-2017 (O&M).
Decided on: August 4, 2022.
Sarwan Ram
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
PRESENT Mr. Kamal Singh, Advocate, and
Mr. Sandeep Verma, Advocate,
for the petitioner.
Mr. Karanbir Singh, AAG, Punjab.
VINOD S. BHARDWAJ. J. (ORAL)
The present revision petition has been preferred against the judgment of conviction and order of sentence dated 22.07.2015, passed by the Chief Judicial Magistrate, Patiala, in Complaint No. 106 of 18.07.2014 under Section 9 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, whereby the petitioner has been convicted and sentenced to undergo rigorous imprisonment for a period of 2 years, 3 months and 12 days i.e. the period for which the petitioner failed to surrender before the Central Jail For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 1 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -2- Patiala, as well as against the judgment dated 16.05.2016 passed in the appeal bearing number CRA-51 of 08.10.2015, whereby the Additional Sessions Judge, Patiala, modified the sentence by sentencing the petitioner to undergo rigorous imprisonment for a period of 2 years and to pay a fine a Rs.200/-.
2. In brief, the case of prosecution is that petitioner - accused Sarwan Ram was released on parole on 06.02.2012 for four weeks as per the orders of Higher Authorities and he was required to surrender at the jail on completion of parole on 06.03.2012. The petitioner - accused, despite his undertaking, did not surrender at Central Jail, Patiala on 06.03.2012. The petitioner remained absent from Central Jail, Patiala, by over staying his parole for a period of 2 years, 3 months and 12 days.
3. Thereafter, prosecution adduced its pre-charge evidence and after appreciation of the pre-charge evidence, the Court served notice under Section 9 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 to the petitioner - accused to which the petitioner - accused pleaded not guilty and claimed trial and the case was posted for after charge evidence of the prosecution.
4. However, during the trial of the case the petitioner - accused intended to confess his guilt and accordingly, his confessional statement was recorded.
5. After hearing the learned Addl. PP for the State and the learned defence counsel and after going through the record, the learned Trial court held the petitioner - accused guilty and convicted and sentenced the petitioner - accused as stated above. For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 2 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -3-
6. Aggrieved thereof, the petitioner preferred an appeal before the learned Additional Sessions Judge, Patiala. In the said appeal bearing number CRA-51 of 08.10.2015, the sentence was modified and the petitioner was sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.200/-. ARGUMENTS
7. During the course of hearing on the present revision petition, learned counsel appearing on behalf of the petitioner has contended that he does not wish to press the present revision petition on merits and does not raise a challenge to the judgment of conviction and that he would confine his submissions only on the question of quantum of sentence.
8. The counsel appearing on behalf of the State states that he has no objection in case the prayer is confined to the quantum of sentence only.
9. The learned counsel appearing on behalf of the petitioner has contended that the petitioner has already undergone his entire substantive sentence in the principal offence however, the present sentence has been imposed upon him qua his failure to surrender before the Central Jail, Patiala. He further contended that the petitioner is not involved in commission of any other offence and the petitioner was in his early 20's as on the date of commission of the offence and was thus at a vulnerable age and since then has shown reformation. He further urged that the maximum sentence prescribed under the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, then was only two For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 3 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -4- years yet, the sentence beyond the maximum sentence was imposed upon the petitioner and as per the amendment carried out in the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 vide Amendment Act of 2015, the sentence provided for overstay has now been reduced to three month or with fine not exceeding Rs.1,000/- or with both.
10. Learned counsel appearing on behalf of the State vehemently contends that the prosecution has duly established its case against the petitioner - accused and that it is imperative that harsh punishment be imposed upon the criminals so as to send a strict message to the Society. The punitive aspect of the punishment has deterrent effect in the Society and effectively checks repetition of the offence by the accused and controls any allurement of other persons from foraying into the adventure.
PARAMETERS AND PRINCIPLES OF SENTENCING:
11. The Hon'ble Supreme Court has laid down certain principles to govern the Courts in the matter of sentencing. Reference in this regard is made to the judgment of the Hon'ble Supreme Court in the matter of State of Punjab Vs. Prem Sagar & Ors (2008) 7 SCC 550, the relevant extract of the said judgment is reproduced hereinbelow:-
'Whether the court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstance of each case.
For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 4 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -5-
5. While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.
6. There are certain offences which touch our social fabric. We must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept out of the purview thereof. While imposing sentences, the said principles should be borne in mind.
7. A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence.
It is the ultimate goal of any justice delivery system. The Parliament, however, in providing for a hearing on sentence, as would appear from Sub-section (2) of Section 235, Sub-section (2) of Section 248, Section 325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.
8. Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant.
9. What would be the effect of the sentencing on the society is a question which has been left unanswered by the legislature. The Superior Courts have come across a large number of cases which go to show anomalies as For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 5 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -6- regards the policy of sentencing. Whereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine.
10. In Dhananjoy Chatterjee Alias Dhana v. State of W.B. [(1994) 2 SCC 220], this Court held:
"15...Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime..."
11. Gentela Vijayavardhan Rao and Another v. State of A.P. [(1996) 6 SCC 241], following Dhananjoy Chatterjee (supra), states the principles of deterrence and retribution but the same cannot be categorized as right or wrong. So much depends upon the belief of the judges.
12. In a recent decision in Shailesh Jasvantbhai and Another v. State of Gujarat and Others [(2006) 2 SCC 359], this Court opined:
"7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 6 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -7- must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
Relying upon the decision of this Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471], this Court furthermore held that it was the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
18. Don M. Gottfredson in his essay on "Sentencing Guidelines" in "Sentencing: Hyman Gross and Andrew von Hirsch" opines:
"It is a common claim in the literature of criminal justice- and indeed in the popular press- that there is considerable "disparity" in sentencing.. The word "disparity" has become a prerogative and the concept of "sentencing disparity" now carries with it the connotation of biased or insidious practices on the part of the judges. This is unfortunate in that much otherwise valid criticism has failed to separate justified variation from the unjustified variation referred to as For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 7 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -8- disparity. The phrase "unwarranted disparity" may be preferred; not all sentencing variation should be considered unwarranted or disparate. Much of it properly reflects varying degrees of seriousness in the offense and/or varying characteristics of the offender. Dispositional variation that is based upon permissible, rationally relevant and understandably distinctive characteristics of the offender and of the offense may be wholly justified, beneficial and proper, so long as the variable qualities are carefully monitored or consistency and desirability over time. Moreover, since no two offenses or offenders are identical, the labeling of variation as disparity necessarily involves a value judgment- that is, disparity to one person may be simply justified variation to another. It is only when such variation takes the form of differing sentences for similar offenders committing similar offenses that it can be considered disparate."
[Emphasis supplied] The learned author further opines:
"In many jurisdictions, judicial discretion is nearly unlimited as to whether or not to incarcerate an individual; and bound only by statutory maxima, leaving a broad range of discretion, as to the length of sentence."
19. Kevin R. Reitz in Encyclopedia of Crime and Justice, Second edition "Sentencing guidelines" states:
"All guideline jurisdictions have found it necessary to create rules that identify the factual issues at sentencing that must be resolved under the guidelines, those that are potentially relevant to a sentencing decision, and those viewed as forbidden considerations that may not be taken into account by sentencing courts. One heated controversy, addressed differently across jurisdictions, is whether the guideline sentence should be based For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 8 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -9- exclusively on crimes for which offenders have been convicted ("conviction offenses"), or whether a guideline sentence should also reflect additional alleged criminal conduct for which formal convictions have not been obtained ("non conviction offenses").
Another difficult issue of fact-finding at sentence for guideline designers has been the degree to which trial judges should be permitted to consider the personal characteristics of offenders as mitigating factors when imposing sentence. For example: Is the defendant a single parent with young children at home? Is the defendant a drug addict but a good candidate for drug treatment? Has the defendant struggled to overcome conditions of economic, social or educational deprivation prior to the offense? Was the defendant's criminal behavior explicable in part by youth, inexperience, or an unformed ability to resist peer pressure? Most guideline states, once again including all jurisdictions with voluntary guidelines, allow trial courts latitude to sentence outside of the guideline ranges based on the judge's assessment of such offender characteristics. Some states, fearing that race or class disparities might be exacerbated by unguided consideration of such factors, have placed limits on the list of eligible concerns. (However, such factors may indirectly affect the sentence, since judges are permitted to base departures on the offenders particular "amenability" to probation (Frase, 1997).)"
20. Andrew von Hirsch and Nils Jareborg have divided the process of determining sentence into stages of determining proportionality while determining a sentence, namely:
1. What interest are violated or threatened by the standard case of the crime- physical integrity, material For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 9 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -10-
support and amenity, freedom from humiliation, privacy and autonomy.
2. Effect of violating those interests on the living standards of a typical victim- minimum well-being, adequate well-being, significant enhancement
3. Culpability of the offender
4. Remoteness of the actual harm as seen by a reasonable man.'
12. The said issue was also examined by the Hon'ble Supreme Court in the matter of Soman Vs. State of Kerala, (2013) 11 SCC 382, the relevant extract of the said judgment is reproduced hereinbelow:-
'15. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar (2008) 7 SCC 550, this Court acknowledged as much and observed as under -
"2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines."
16. Nonetheless, if one goes through the decisions of this Court carefully, it would appear that this Court For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 10 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -11- takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation etc.
14. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. The question is whether the consequences of the offence can be taken as the measure for determining its harmfulness? In addition, quite apart from the seriousness of the offence, can the consequences of an offence be a legitimate aggravating (as opposed to mitigating) factor while awarding a sentence. Thus, to understand the relevance of consequences of criminal conduct from a Sentencing standpoint, one must examine: (1) whether such consequences enhanced the harmfulness of the offence; and (2) whether they are an aggravating factor that need to be taken into account by the courts while deciding on the sentence.
26. Punishment should acknowledge the sanctity of human life. We fully agree.
27. From the above, one may conclude that:
27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 11 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -12- 27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor.
CONCLUSION
13. Taking into consideration the protracted criminal trial and the consequent agony faced by the petitioner, the actual sentence out of total sentence already undergone by the petitioner, the reformative tendency shown by the petitioner by not indulging in any other offence, the age of the petitioner at the time of the incident as well as the legal principles reproduced above, the present petition is partly allowed. The judgment of conviction passed by the Chief Judicial Magistrate, Patiala, dated 22.07.2015 as well as the judgment dated 16.05.2016, passed by the Additional Sessions Judge, Patiala, convicting the petitioner of the offence under Section 9 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, as amended is affirmed. However, the order of sentence is further modified and the sentence awarded to the petitioner is reduced to the period already undergone by him, however, the fine is enhanced from Rs.200/-to Rs.1,000/-. For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 12 of 13 ::: Downloaded on - 26-12-2022 16:52:33 ::: CRR-3165-2017 (O&M) -13-
14. In the event of the enhanced fine having not been paid within a period of one month from the receipt of certified copy of this order, the present revision petition would be deemed to have been dismissed and the petitioner would have to undergo his substantive sentence as awarded by the learned trial Court.
15. The present revision petition stands partly allowed accordingly.
(VINOD S. BHARDWAJ) JUDGE August 06, 2022 rajarora Whether speaking/reasoned : Yes/No Whether reportable : Yes/No For Subsequent orders see IOIN-CRR-3165-2017 Decided by HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 13 of 13 ::: Downloaded on - 26-12-2022 16:52:33 :::