Delhi District Court
For The Convicts Namely Avtar Singh ... vs . State Of Andhra Pradesh 1977 Air 1926 Sc ... on 23 July, 2012
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT- II SOUTH DISTRICT : SAKET COURTS : NEW DELHI In R.C No. : 1/(S)/98/STF/CBI/ND S. C. No. : 55/09 Unique Case ID : 02401R0830112003 Central Bureau of Investigation (CBI) Versus Romesh Sharma S/o Sh. Satyanarayan R/o C-30, Mayfair Garden, New Delhi Harish Mishra S/o Sh. Satya Narayan Mishra R/o 507, Royal Turner Road, Juhu, Mumbai Avtar Singh Ahluwalia S/o Late Sh. B S Ahluwalia R/o Sai Kirpa Behind Sri Krishna Complex, Vasai Road (W), Distt. Thane M D Bhowani S/o Late Sh. D K Bhojwani R/o 61, Mayfair Apartment Mayfair Garden, New Delhi Naveen Budhiraja @ Baboo S/o Sh. Amrit Lal Budhiraja R/o 1580/13, Govind Puri, New Delhi Indermani S/o Sh. D R Mishra R/o Vill. Ugrasain Pur, Distt. Phulpur, Allahabad, U.P. Avdesh S/o Sh. Jagdish Prashad R/o Vill. Ugrasain Pur, Distt. Phulpur, Allahabad, U.P. Manoj S/o Sh. Shyam Lal R/o 69-C, Sobatia Bagh, Allahabad, U.P. Laxman Singh S/o Sh. Lal Singh R/o E-71, Lok Sabha Rajya Sabha Govt. Flats, Vasant Vihar, New Delhi Order on Sentence 23.07.2012
Present : Sh. S K Saxena, Ld. Special Public Prosecutor for CBI.
Sh. Prem Kumar and Sh. Jaswinder Singh, Ld. Counsels for the convicts.
Heard on the point of sentence.
Ld. Special PP submitted that the convict Romesh Sharma was a King pin. He was the beneficiary of the helicopter. He had connections with the underworld Don. In one of the case, he has been convicted. He has been facing trial in number of criminal cases relating to extortion. He is menace to the society.
Ld. Special PP submitted that the convict Harish Mishra has played an important role in the criminal conspiracy hatched by Romesh Sharma. Ld. Special PP submitted that looking into the offences which Romesh Sharma and Harish Mishra have committed, they do not deserve any leniency.
For convict Avtar Singh Ahluwalia, Ld. PP submitted that he was the leader of the gang of dacoity. He had arranged the truck in which the helicopter was brought at Delhi.
For convict M D Bhojwani, Ld. PP submitted that he was right hand man of Romesh Sharma. He has been facing trial in two more cases. For other convicts, Ld. PP submitted that they accomplished the intention of Romesh Sharma to grab the helicopter of the complainant. Ld. PP submitted that all the convicts are involved in serious offences and thus prayed for the maximum sentence.
Ld. Counsel Sh. Prem Kumar for the convicts submitted that Romesh Sharma has remained in custody for about 13 years. He is aged about 68 years. Till date, he has been convicted only in one case i.e. FIR 401/96 PS Hauz Khas. He has a political career behind him.
For convict Harish Mishra, Ld. Counsel submitted that he is aged about 66 years. No other case is pending against him. He has remained in custody for about 10 years.
For convict M D Bhojwani, Ld. Counsel submitted that he is aged about 80 years. He has retired from Indian Book House. He has not been convicted in any of the cases. He has remained in custody for about 2 ½ years. Ld. Counsel has prayed for a lenient view.
For the convicts namely Avtar Singh Ahluwalia, Manoj, Laxman, Naveen Budhiraja, Indermani and Avdesh, Ld. Counsel submitted that they are not the previous convicts. Before or after the incident, they are not involved in any of the criminal case. They have a family to support. They have remained in custody for more than two years. They were not the beneficiary of the helicopter. They did the act under the belief that the helicopter belonged to Romesh Sharma. They have faced trial for about 14 years and have received enough punishment in terms of time and money. They have suffered economically, physically and mentally. Ld. counsel relied upon the case titled Mohammad Giasuddin Vs. State of Andhra Pradesh 1977 AIR 1926 SC to contend that there is a wide range of choice and flexible treatment which is available with the Judge if he is to fulfill his tryst with curing the criminal in a hospital setting. Rule of thumb sentences of rigorous imprisonment or other are too insensitive to the highly delicate and subtle operation expected of a sentencing Judge. For white collar offences, it is proper to insist upon reparation of the victims apart from any other sentence. Ld. Counsel quoted the observations of Hon'ble Mr. Justice V R Krishnaiyer in the case Supra :
The Gandhian diagnosis of offenders at patients and his conception of prisons as hospitals-mental and moral-is the key to the pathology of delinquency and the therapeutic role of 'punishment' The whole man is a healthy man and every man is born good. Criminality is a curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall-out of the advaita of cosmic creation and the spring of correctional thought in criminology. If every saint has a past, every sinner has a future, and it is the role of law to remind both of this.
Ld. Counsel also quoted the remarks of George Micodotis, Director of Crimonological Research Centre, Athens, Greece that the focus of interest in penology is the individual and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence, since brutal incarceration of the person merely produces laceration of his mind.
Ld. Counsel submitted that keeping in view the age, antecedents of the convicts, they may be given opportunity to reform and to rehabilitate. Ld. Counsel submitted that the convicts be let off on the sentence for the period already undergone by them during trial, so that they could become useful in the society.
I have considered the submissions.
The Supreme Court in Ankush Maruti Shinde & Ors. Vs. State of Maharashtra 2009 AIR SCW 4022 has observed thus :
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice or "order" should meet the challanges confronting the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was committed. 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, and all other attending circumstances are relevant facts which would enter into the area of consideration.
The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of the every Court to award proper sentence having regard to the nature of the offence and the manner in which it was committed.
In Ravji Vs. State of Rajasthan, 1996 (2) SCC 175 it was observed :
It is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.
In State of Punjab Vs. Prem Sagar & Others (2008) 7 SCC 550 it was observed :
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 circumstances of each case.
It is significant to note that the principle of equal punishment for similar offences does not prove effective for all types of criminals. The young and the first offenders must be treated differently than that the recidivists and habitual offenders. The justification for this differential treatment lies in the fact that the effect of punishment varies from criminal to criminal depending upon his age, sex, intellect, mental depravity, responsible attitude and social circumstances. The punishment to be efficacious must include the combination of deterrence, prevention and reformation so that it prevents a future wrong besides bringing a change in the attitude of the offender through reformative measures during the period of his incarceration. The penal system should be designed so as to ensure that offenders improve by suffering for their offences. An effective criminal justice system inevitably needs to ensure that the society is protected against the criminals by stamping out criminal proclivity inherent in them.
In the present case all the convicts have faced trial of about 14 years.
Romesh Sharma is aged about 68 years, he has a political career of about 35 years. He has remained in custody for about 13 years. In the case FIR 401/06 PS Hauz Khas he has been convicted for an offence of extortion. He has been facing trial in number of cases relating to extortion. In the present case he with a dishonest intention to grab the helicopter dishonestly induced H. Suresh Rao to part with the possession of helicopter by making him to enter an MOU for sale though the helicopter was given on hire and later on took the forcible possession of the helicopter with the help of co-convicts and got its ownership transferred in his name by forcing H. Suresh Rao to give an affidavit that he has received full and final payment though he did not pay his legitimate dues. When the complainant persuaded him to pay his legitimate dues he beat H. Suresh Rao, threatened and abducted him and Rakesh Gupta and confined them to a place at Mahadev Road. The whole incident is extremely revolting. It shocks the collective conscience of the community. The aggrevated circumstances have outscores the mitigating factors of age and his antecedents.
That being the position, looking into the nature of gravity of the offences and the role played by him in the commission of the above offences, I am of the view that he does not deserve any leniency.
I therefore, sentence him to undergo rigorous imprisonment for a period of 07 (Seven) years and to pay fine of Rs. 50,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 420 IPC.
I sentence him to undergo rigorous imprisonment for a period of 10 (Ten) years and to pay fine of Rs. 25,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 386 IPC.
I sentence him to undergo rigorous imprisonment for a period of 10 (Ten) years and to pay fine of Rs. 15,00,000/- (Rs. Fifteen Lacs only) in default thereof to undergo simple imprisonment for a period of two years for the offence punishable U/s 412 IPC.
I sentence him to undergo rigorous imprisonment for a period of 07 (Seven) years and to pay fine of Rs. 20,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 365 IPC.
I sentence him to undergo rigorous imprisonment for a period of 07 (Seven) years and to pay fine of Rs. 20,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 506 IPC.
I sentence him to undergo simple imprisonment for a period of 01 (one) month for the offence punishable U/s 323 IPC.
I also sentence him to undergo rigorous imprisonment for a period of 10 (Ten) years and to pay fine of Rs. 1,00,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 120 B (1) read with Section 420, 395, 365 and 506 IPC. All the sentences shall run concurrently. He is given benefit of Section 428 Cr.P.C.
Harish Mishra is aged about 66 years. He runs Estate Agency in Mumbai. He has a family comprising of his wife and a son aged about 14 years. No other case is pending against him. In the present case, he was party to the criminal conspiracy with Romesh Sharma for dishonestly inducing H. Suresh Rao to part with the helicopter, the object of which conspiracy was to grab the helicopter. He participated till the helicopter was possessed and transferred in the name of the Romesh Sharma. He has remained in custody for about 10 years and 09 months. The maximum punishment for the offence punishable U/s 420 IPC and the offence U/s 120 B read with Section 420 IPC is 07 years and fine.
Since he has remained in custody for the maximum period provided for the aforesaid offences, I sentence him to undergo rigorous imprisonment for a period of 07 (Seven) years and to pay fine of Rs. 50,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 420 IPC.
I also sentence him to undergo rigorous imprisonment for a period of 07 (Seven) years and to pay fine of Rs. 50,000/- in default thereof to undergo simple imprisonment for a period of six months for the offence punishable U/s 120B (1) IPC read with Section 420 IPC. Both the sentences shall run concurrently. He is given benefit of Section 428 Cr.P.C.
Avdesh, Indermani, Manoj, Naveen Budhiraja, Avtar Singh Ahluwalia and M D Bhojwani had campaigned for Romesh Sharma in the election at Phulpur, Allahabad. They, at the instance of Romesh Sharma, by use of force took the unlawful possession of the helicopter from the crew members of H. Suresh Rao by putting them in the fear of hurt or wrongful restrain and brought it at Delhi for the use of Romesh Sharma. Their act amounted to commission of dacoity.
Avdesh is aged about 32 years. He is agriculturist and has a family comprising of four children aged 12, 10, 7 and 2 years.
Indermani is aged about 50 years. He is also an agriculturist and has a family comprising of wife, old age father and four children aged 18, 16, 14 and 6 years.
Manoj is aged about 40 years. He earns his livelihood by selling vegetables in his village. He has a family comprising of his father, wife, daughter aged 7 years and 2 sons aged 10 and 12 years.
Naveen Budhiraja is aged about 36 years. He does the business of sale and purchase of old cars. His family comprises of his wife and old age mother.
Avtar Singh Ahluwalia is aged about 63 years. He has undergone a by-pass surgery.
M D Bhojwani is aged about 80 years. He has retired from Indian Book House.
It is no doubt true that the above convicts have clean antecedents; they, after release on bail, did not indulge themselves in such like activities; they are not the beneficiaries of the helicopter but they have committed a grave offence of dacoity to accomplish the dishonest intention of Romesh Sharma to grab the helicopter which belonged to H. Suresh Rao. It is also true that the above convicts have spent considerable time in jail during the period of trial but after their conviction some amount of remorse and weighing of pains and pleasures of resorting to criminality must necessarily be felt by them. In the totality of the circumstances, balancing the twin interest of the society and that of the convicts, I am of the considered view that they should, as convicts, undergo sentence for sometime over and above the period already spent by them which is liable to be set off against the final sentence more particularly where they committed the offences in groups and in association with the accomplishes.
I therefore sentence the convicts Avtar Singh Ahluwalia, M D Bhojwani, Naveen Budhiraja, Manoj, Avdesh and Indermani to undergo rigorous imprisonment for a period of 3 ½ (Three and Half) years and to pay fine of Rs. 10,000/- each in default thereof to undergo simple imprisonment of six months for committing the offence punishable U/s 395 IPC.
I also sentence them to undergo rigorous imprisonment for a period of 3 ½ (Three and Half) years and to pay fine of Rs. 10,000/- each in default thereof to undergo simple imprisonment of six months for committing the offence punishable U/s 120B (1) read with Section 395 IPC.
Both the sentences shall run concurrently. They are given benefit of Section 428 Cr.P.C.
The convict Laxman was the bodyguard of Romesh Sharma. He on the directions of Romesh Sharma pointed out pistol on to H. Suresh Rao and joined hands with Romesh Sharma in abducting H. Suresh Rao and Rakesh Gupta and confining them at Mahadev Road. The pistol was recovered from his possession. He is aged about 50 years. He has a family comprising of his wife, daughter aged 17 years and son aged 15 years. He had been in custody for about 2 years and 5 months. He does not have any case except this case.
Keeping in view his age, antecedents and facts and circumstances of the case, I sentence him to undergo rigorous imprisonment for a period of 03 (Three) years and to pay fine of Rs. 5000/- in default thereof to undergo simple imprisonment for a period of 03 months for the offence punishable U/s 365 IPC.
I also sentence him to undergo rigorous imprisonment for a period of 03 (Three) years and to pay fine of Rs. 5000/- in default thereof to undergo simple imprisonment for a period of 03 months for the offence punishable U/s 506 IPC.
I also sentence him to undergo rigorous imprisonment for a period of 03 (Three) years and to pay fine of Rs. 5000/- in default thereof to undergo simple imprisonment for a period of 03 months for the offence punishable U/s 120B (1) read with Section 365 and 506 IPC. All the sentences shall run concurrently. He is given benefit of Section 428 Cr.P.C. Out of the fine amount to be realised from the convict Romesh Sharma and Harish Mishra, Rs. 15,00,000/- and Rs. 1,00,000/- respectively be paid to the complainant H. Suresh Rao after the expiry of period of revision/appeal.
The helicopter be released to the complainant H. Suresh Rao. The Mercedes car and the Pajero Jeep be released to the convict Romesh Sharma. The licensed pistol be confiscated to the State. The release be made after the expiry of period of Appeal/Revision.
I appreciate the services of Ld. Special Public Prosecutor Sh. S K Saxena appearing for the CBI and Ld. counsels Sh. Prem Kumar, Sh. Jaswinder Singh and Sh. S P Kaushal appearing for the convicts in disposing off this case.
Before parting, this Court deems it appropriate to state that people, howsoever, big or strong or wielding political power, are subject to the rule of law and not above law. They cannot run the affairs of their life or acquire material wealth outside the permissible parameters provided by law. I hope, this case sends a message loud and clear that it does not pay to become an outlaw or to resort to criminal acts to gain superiority in the society. Participation in the politics of the State means to work for the betterment of the society and not towards its detriment. State through criminal justice administration condemns and punishes those who resort to violence or threats or intimidations or acts of terror. Law does not distinguish between private people and those in the public life says Article 14 of the Constitution. Time has come when Lawmakers, Enforcers and Adjudicators have to evolve ways and means to wean the people into the legal system of the State as against resorting to redressal through violent means. It is hoped that this Judgment and Order will demonstrate that criminal justice system is well tuned to deliver justice, if not speedy justice which should be the goal of our criminal justice system, if the common man's faith has to be resorted and retained in the system.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
TODAY ON 23rd JULY, 2012 (SANJIV JAIN)
Presiding Officer MACT-II
South Distt. : Saket Courts
New Delhi : 23.07.2012
19
CBI Vs. Romesh Sharma & Ors.
R.C No. : 1/(S)/98/STF/CBI/ND 19/19