Madhya Pradesh High Court
Gajendra Singh Rathor vs The State Of Madhya Pradesh Thr on 28 August, 2017
(1) CRR 945/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Present :- Hon'ble Shri Justice G. S. Ahluwalia
CRR 945/2016
Gajendra Singh Rathore
Vs.
State of MP
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Shri Mahavir Pathak, counsel for the applicant.
Shri Vivek Bharagava, Public Prosecutor for the respondent-
State.
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ORDER
(Passed on 28/08/2017) This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the judgment and sentence dated 26-9-2016, passed by Third Additional Sessions Judge to the Court of First Additional Sessions Judge, Gwalior in Criminal Appeal No.179 of 2016 arising out of judgment and sentence dated 26-2-2016 passed by J.M.F.C.,Gwalior in Criminal Case No.5831 of 2013, by which the applicant has been convicted under Section 14 of M.P. Rajya Suraksha Adhiniyam, and has been sentenced to undergo the rigorous imprisonment of 1 year and a fine of Rs.1000/- with default imprisonment.
(2) The necessary facts for the disposal of the present Criminal Revision in short are that an order of externment was passed against the applicant on 3-9-2012 by the A.D.M., Gwalior for a period of one year removing him from the Gwalior District and adjoining Districts of Bhind, Morena, Datia and Shivpuri. A perpetual warrant of arrest was issued by the Court of A.C.J.M., Gwalior against the applicant in criminal case No.7600/2011 and when Vinod Kumar Sharma, A.S.I., posted in Police Station Janakganj, was searching of the applicant, he found the applicant was in his house which was in utter violation of order of (2) CRR 945/2016 externment dated 3-9-2012 passed by A.D.M., Gwalior. Accordingly, offence under Section 188 of I.P.C. and 14 of M.P. Rajya Suraksha Adhiniyam was registered, and the applicant was arrested and after completing the investigation, the police filed a chargesheet against the applicant for offence under Sections 188 of I.P.C. and under Section 14 of M.P. Rajya Suraksha Adhiniyam was filed. (3) The Trial Court by order dated 27-1-2014 framed charges under Sections 188 of I.P.C. and under Section 14 of M.P. Rajya Suraksha Adhiniyam.
(4) The applicant abjured his guilt and pleaded not guilty.
(5) The prosecution in order to prove its case, examined Guddu @ Dinesh Saxena (P.W.1), Surendra Singh (P.W.2), RajKumar Singh (P.W.3), Vinod Kumar Sharma (P.W.4), Gopal Das Agrawal (P.W.5), and Harcharan Singh (P.W. 6). The applicant did not examine any witness in his defence. (6) The Trial Court by its judgment and sentence dated 26-2-2016 acquitted the applicant for offence under Section 188 of I.P.C. and convicted him for offence under Section 14 of M.P. Rajya Suraksha Adhiniyam, and sentenced him to undergo the rigorous imprisonment of 1 year and fine of Rs.1000/- with default imprisonment. (7) Being aggrieved by the judgment and sentence passed by the Trial Court, the applicant, filed an appeal which too has been dismissed by judgment and sentence dated 26-9-2016.
(8) Challenging the Judgment and sentence passed by the Courts below, the Counsel for the applicant submitted that the applicant has been wrongly shown to be arrested from his house. Further, he had never flouted the order of externment. In the alternative, it is submitted that the order of externment was never served upon the applicant. It is further submitted that the minimum sentence provided for offence under Section 14 of M.P. Rajya Suraksha Adhiniyam is 4 months, therefore, the sentence may be (3) CRR 945/2016 reduced.
(9) Per contra, it is submitted by the counsel for the State that the applicant had a criminal record, therefore, an order of externment was passed but still he did not remove himself from the concerning Districts and, therefore, not entitled for any leniency.
(10) Heard the learned counsel for the parties. (11) Gopal Das Agrawal (P.W.5) has proved the order of externment dated 3-09-2012. This witness has produced the original file of externment proceedings and proved the order of externment dated 3-9-2012 passed by A.D.M., Gwalior against the applicant, thereby directing him to remove himself from the limits of Gwalior District and surrounding Districts of Bhind, Morena, Datia and Shivpuri. The order dated 3-9-2012 is Ex. P.5 and the photo copy is Ex. P.5(c). In cross-examination, this witness denied that no order of externment was passed against the applicant. Thus, the prosecution has proved beyond reasonable doubt that an order of externment dated 3-9-2012 Ex.P.5(c) was passed against the applicant, directing him to remove himself from the limits of Gwalior District as well as surrounding Districts of Bhind, Morena, Datia, Shivpuri. (12) Guddu (P.W.1) has not supported the prosecution case and was declared hostile. He was cross- examined by the Public Prosecutor, however, nothing could be elicited from his evidence, which may support the prosecution case.
(13) Surendra Singh (P.W.2), Vinod Kumar Sharma (P.W.4), have stated that for execution of the perpetual arrest warrant issued against the applicant, they were in search of him. They arrested the applicant in his house on 26-5-2013. An order of externment dated 3-9-2012 was passed against the applicant and the applicant was directed to remove himself from the Limits of Gwalior District as well as the surrounding Districts of Bhind, Morena, Shivpuri and Datia and since, the applicant was within the limits of (4) CRR 945/2016 Gwalior District in utter violation of the order of externment dated 3-9-2012, therefore, he was arrested in Crime No.342/2013 by arrest memo Ex.P.1. for offence under Section 188 of I.P.C. and under Section 14 of M.P. Rajya Suraksha Adhiniyam was registered. The F.I.R. is Ex.P.3 which bears the signatures of Vinod Kumar Sharma (P.W.4). These witnesses were cross examined in detail, however, nothing could be elicited from the evidence of these witnesses, which may make the evidence of these witnesses doubtful.
(14) Rajkumar Singh (P.W.3) had recorded the statements of Surendra Singh and Dinesh @ Guddu and had subsequently filed the charge sheet. (15) Harcharan Singh (P.W. 6) has stated that he had served the notice of order of externment on the applicant at his house on 6-9-2012 and the acknowledgment of receipt of service of order of externment on the applicant is Ex. P.5(c).
(16) Thus, it is clear from the evidence of these witnesses, that an order of externment dated 3-9-2012 was in force against the applicant and he was supposed to remove himself from the limits of Gwalior District and surrounding Districts of Bhind, Morena, Datia and Shivpuri, but he was found in his house.
(17) The applicant in his statement under Section 313 of Cr.P.C. has shown his ignorance about the passing of the order of externment dated 3-9-2012. He has not taken any defence except that he has been falsely implicated. Section 16 of M.P. Rajya Suraksha Adhiniyam provides for presumption in cases of violation of directions issued under Section 3 or order under Sections 4, 5, 6 or 13 of the Act. Section 16 of M.P. Rajya Suraksha Adhiniyam, reads as under :-
"16. Presumption in prosecutions for contravention of order passed under section 3 or directions issued under sections 4, 5, 6 or 13. - Notwithstanding anything contained in any law for the time (5) CRR 945/2016 being in force, in a prosecution for an offence for the contravention of order passed under section 3 or a direction issued under Sections 4, 5, 6 or 13 on the production of an authentic copy of the order, it shall until the contrary is proved and the burden of proving which shall lie on the accused, be presumed.
(a) that the order was made by the District Magistrate or Sub-Divisional Magistrate empowered by the State Government under Section 18 or the State Government or any officer specially empowered by the State Government under Section 13 as the case may be;
(b) that the District Magistrate or the Additional District Magistrate or Sub-
Divisional Magistrate empowered by the State Government under Section 18 or the State Government or any officer specially empowered by the State Government under Section 13 as the case may be, was satisfied the grounds on or the purpose for which it was made, existed, and that it was necessary to make the same; and
(c) that the order was otherwise valid and in confirmity with the provisions of this Act.'' (18) Thus, it is clear that on production of an authentic copy of direction issued under Section 3, 5, 6 and 13 of the M.P. Rajya Suraksha Adhiniyam, the validity of the order shall be presumed and the burden would be on the accused to prove to the contrary. The applicant except by showing his ignorance, has not proved anything to the contrary.
(19) The applicant was arrested from his house on 26-5-2013.Thus, it is clear that in spite of the order of externment dated 3-9-2012, the applicant was found within the limits of Gwalior District, therefore, it is clear that the applicant had violated the terms and conditions of order of externment dated 3-9-2012. Further, it is well established principle of law that this Court in exercise of Revisional Powers cannot re-appreciate the evidence, unless and until, the findings are shown to be perverse or without record. No such perversity has been pointed out by the Counsel for (6) CRR 945/2016 the applicant. Accordingly, the applicant is held guilty of offfence under Section 14 of M.P. Rajya Suraksha Adhiniyam.
(20) The judgment dated 26-2-2016 and 26-9-2016 passed by the Trial Court as well as the Appellate Court respectively are hereby confirmed. (21) So far as the question of sentence is concerned, it is submitted by the Counsel for the applicant, that the minimum sentence provided for offence under Section 14 of M.P. Rajya Suraksha Adhiniyam, is 4 months and therefore, the sentence of rigorous imprisonment of one year may be reduced to period of 4 months. Considered the submissions of the Counsel for the applicant.
(22) The Supreme Court in the case of State of Punjab vs. Saurabh Bakshi, reported in (2015) 5 SCC 182 has held as under :
''1. Long back, an eminent thinker and author, Sophocles, had to say:
"Laws can never be enforced unless fear supports them."
Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every right-thinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilized manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual (7) CRR 945/2016 notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalized. In this context one may recapitulate the saying of Justice Benjamin N. Cardozo "Justice, though due to the accused, is due to the accuser too." And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.
20. While dealing with the policy of sentencing in Gopal Singh the two-Judge Bench quoted a paragraph from Shailesh Jasvantbhai v. State of Gujarat which is as follows: (Gopal Singh case, SCC p. 551, para 16) "16. .... '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 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 (8) CRR 945/2016 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.' (Shailesh Jasvantbhai case, SCC pp. 361-62, para
7)"
21. In the said case it has been laid as follows: (Gopal Singh case, SCC pp. 551- 52, para 18) "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect
--propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of (9) CRR 945/2016 the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated herein-before and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment."
24. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system."
(23) The order issued under Section 3 of M.P. Rajya Suraksha Adhiniyam, is preventive in nature. It is clear from the externment order dated 3-9-2012, as many as 13 criminal cases were registered against the applicant and in spite of the order to the applicant to remove himself from the Limits of the Gwalior District as well as from the surrounding Districts of Bhind, Morena, Datia and Shivpuri, the applicant flouted the order of externment and was (10) CRR 945/2016 found within the District of Gwalior. As already held by the Supreme Court in the case of Sourabh Bakshi (supra) the sentencing policy must have the element of deterrence also and since, the applicant did not improve himself, therefore, no lenient view can be adopted while awarding the jail sentence Accordingly, the sentence of rigorous imprisonment of one year and a fine of Rs. 1000 with default imprisonment, imposed by the Courts below do not call for any interference. Hence, the sentence of rigorous imprisonment of one year and a fine of Rs.1000/- with default imprisonment is confirmed. (24) The applicant is on bail. His bail bonds and surety bonds are discharged.
(25) The applicant is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
(26) This Revision fails, and is hereby dismissed.
(G.S. Ahluwalia) Judge 28/08/2017 *MKB*