Punjab-Haryana High Court
Anil Kumar vs State Of Haryana on 9 July, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Criminal Revision No.1254 of 2012 1
Criminal Revision No.1271 of 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Revision No.1254 of 2012
and
Criminal Misc.No.24603 of 2012
Date of Decision:09.07.2012
Anil Kumar .....petitioner
Versus
State of Haryana .....respondent
Criminal Revision No.1271 of 2012
and
Criminal Misc.No.24835 of 2012
Rajesh Chawla .....petitioner
Versus
State of Haryana .....respondent
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.Aman Pal, Advocate
for the petitioners
Mr.Kshitij Sharma, Assistant Advocate General, Haryana
***
RAMESHWAR SINGH MALIK J.(ORAL):
Both these criminal revision petitions bearing Criminal Revision Petition No.1254 of 2012 (Anil Kumar versus State of Haryana) and Criminal Revision No.1271 of 2012 (Rajesh Chawla versus State of Haryana) are directed against the same impugned judgements and order of conviction passed by the learned Courts below because of which both are being decided vide this common judgement.
Facts first. Since both the cases are out of same FIR No.224 dated 26.04.2002 under Sections 3,4,5 and 6 of the Immoral Traffic (Prevention) Act, 1956 ( for short 'the Act'), registered at Police Station Kotwali, Faridabad, the following facts are being culled out from first case Criminal Revision No.1254 of 2012 2 Criminal Revision No.1271 of 2012 i.e.Criminal Revision No.1254 of 2012 (Anil Kumar versus State of Haryana).
The case of the prosecution was that a raid was conducted by ASP Jagroop Singh Rathi along with other police officials on 26.04.2002 on the basis of a secret information. The secret informer had reported that accused Rajesh Chawla resident of Delhi and Anil Kumar resident of Sector 7, Faridabad along with two girls namely Sangeeta and Saloni were indulging in prostitution in the forest near Golf Club and they were charging ` 500/- per person. Head Constable Ishwar Singh was asked to change to civil clothes and was given a signed 500 rupee note bearing No.7AQ 970089 by DSP Jagroop Singh Rathi. He was asked to contact the accused and settle the charges as ` 500/- for sexual intercourse with any female. ASI Safiuddin, in civil dress was asked to oversee the proceedings. After getting the indication from HC Ishwar Singh, the police party reached at the place and apprehended the accused. The accused disclosed their names as Rajesh Chawla, Anil Kumar, Sangeeta and Saloni. On being searched, one ` 500/- note bearing No. 7AQ 970089 was recovered from the possession of accused Rajesh Chawla. It was found to be the same note which was given by the Investigating Officer. The said note was taken in police custody vide a separate recovery memo.
A prima facie case was found to be made out against the accused under Sections 3,4,5 and 6 of the Act. Tehrir was sent through Constable Shyam Phool. Accordingly, the First Information Report (FIR) was registered. Investigation of the case was conducted by ASP Jagroop Singh Rathi. Site plan of the place of occurrence was prepared and statements of witnesses under Section 161 of the Code of Criminal Procedure ( for short 'Cr.P.C.) were recorded. The accused were put under Criminal Revision No.1254 of 2012 3 Criminal Revision No.1271 of 2012 arrest. After completion of the investigation, report under Section 173 Cr.P.C.was presented to the learned court of competent jurisdiction.
In the meantime, accused Sangeeta and Saloni, absented themselves from the Court. Accordingly, they were declared proclaimed offenders vide order dated 19.09.2007. However, finding a prima facie case, both the petitioners namely Anil Kumar and Rajesh Chawla were chargesheeted under Sections 3,4,5 and 6 of the Act. The accused pleaded not guilty and claimed trial.
The prosecution with a view to prove its case, examined PW1 HC Ishwar Singh, who was a key witness in the case because he was sent as a decoy customer. He stated that on 26.04.2002 he along with Inspector/SHO Hawa Singh was present at B.K.Hardware cross road for patrolling duty. Additional S.P.Jagroop Singh Rathi reached there and in the meanwhile secret information was received from the informer that two boys and two girls were indulging in prostitution in the forest near Golf Club. On the directions of ASP he changed to civil clothes and his search was duly conducted by ASP. He was handed over a 500 rupee currency note bearing No. 7AQ 970089. He was instructed to carry out the deal with the said persons and was to give signal to the raiding party. Handing over memo of the note was proved as Ex.PW-1/A. It was signed by him along with ASI Safiuddin. ASI Safiuddin who was already in civil dress was also sent along with him to oversee the entire proceedings and to inform the raiding party. He gave the 500 rupee note to a person who disclosed his name as Rajesh for prostitution with one of the girls. One of the girl disclosed her name as Sangeeta. Sangeeta went along with him and she hugged him. At that stage, he gave signal to the raiding party. ASP Jagroop Singh along with SHO and other police officials reached at Criminal Revision No.1254 of 2012 4 Criminal Revision No.1271 of 2012 the spot. On seeing the police party, the accused tried to run away but were apprehended at the spot. On being searched, the accused disclosed their names Rajesh, Anil, Sangeeta and Saloni. PW1 pointed towards Rajesh. On search, same 500 rupee note was recovered from the right pocket of his pant, which was taken in police custody vide separate recovery memo.
Inspector Jai Parkash was examined as PW2, who deposed about the receipt of tehrir from ASP Jagroop Singh. He also proved the fact of registration of FIR as Ex.PW2/A and endorsement thereon as Ex. PW/2 B. ASI Saifuddin was examined as PW3. He was asked to oversee the entire proceedings and to inform the raiding party after receiving the signal from HC Ishwar Singh PW1. PW3 also supported the version put forth by HC Ishwar Singh-PW1. He proved the recovery memo of note as Ex.PW3/A which bore his signatures. He also proved the handing over memo Ex.PW1/A. Constable Ashok Kumar, who appeared as PW4, deposed about the preparation of site plan Ex.PW4/A which was prepared by him on the instructions of Inspector Hawa Singh. He duly proved the site plan. Retired ASP Jagroop Singh Rathi was examined as PW5, who was the Investigating Officer. He duly supported the version of the prosecution and categorically stated that he asked HC Ishwar Singh-PW1 to change to civil dress. Thereafter, PW1 was duly searched by him and was handed over a 500 rupee currency note. ASI Saifuddin-PW3 was also sent along with HC Ishwar Singh PW-1 to oversee the entire proceedings and to inform the raiding party. After receiving signal from HC Ishwar Singh PW-1, ASI Saifuddin PW3 gave signal to the raiding party. The accused were apprehended and said 500 rupee note was recovered from the pocket of Criminal Revision No.1254 of 2012 5 Criminal Revision No.1271 of 2012 accused Rajesh. He further deposed that recovered 500 rupee note was taken into possession by the police vide recovery memo Ex.PW3/A. Tehrir Ex.PW5/A was sent through Constable Shyam Phool for registration of the FIR and site plan Ex.PW5/B was prepared. After getting recorded the evidence noted above, the prosecution closed its evidence.
The evidence led by the prosecution was put to the accused and their statements under Section 313 Cr.P.C. were recorded, wherein they denied all the allegations levelled against them. They further stated that they have been falsely implicated. In defence evidence, the accused tendered as many as 12 documents as Ex.D-1 to D-12 and closed their evidence.
After hearing learned counsel for the parties and going through the record of the case, learned trial Court recorded the conviction of both the accused (petitioners-herein), under Section 4 of the Act, read with Section 34 IPC vide its judgement of conviction dated 27.09.2010. Consequently, the petitioners were sentenced vide order of sentence dated 28.09.2010 to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 1000/-. In default of payment of fine, they were ordered to undergo further simple imprisonment for a period of 15 days.
Dissatisfied with their conviction and sentence noted above, the petitioners challenged the same vide their separate appeals before the learned Additional Sessions Judge, Faridabad. Both the appeals filed by the present petitioners were dismissed vide common judgement dated 17.04.2012.
Feeling aggrieved against the above said judgements of conviction and order of sentence, the petitioners have approached this Court by way of two separate criminal revision petitions, noted above. Criminal Revision No.1254 of 2012 6 Criminal Revision No.1271 of 2012 When the matter came up for hearing on 27.04.2012, the following order was passed:
"After arguing for some time, when this Court was agreeing with the contentions to challenge the findings of the Courts below against conviction of the petitioner for commission of offence under Section 4 of the Immoral Traffic (Prevention) Act, 1956, learned counsel for the petitioner has restricted his arguments only to the extent that the punishment of one year awarded to the petitioner is harsh and excessive keeping in view the facts and circumstances of the case.
Thus, conviction of the petitioner is maintained. Notice of motion be issued to the respondent-State with regard to the quantum of sentence only.
At the asking of the Court, Mr.Amandeep Singh, AAG, Haryana, accepts notice.
List on 11.05.2012."
Learned counsel for the petitioners submitted that in view of the order dated 27.04.2012, noted above, the quantum of sentence may be reduced keeping in view the mitigating circumstances. About the petitioner Anil Kumar, learned counsel submitted that he has a widowed mother and two minor children. He was the first offender and was not found involved in any other case. No recovery was effected from him. He had been doing his business and was an income tax assessee. He was 42 years of age. He had already paid the fine of ` 1000/-. Further, the petitioner had been Criminal Revision No.1254 of 2012 7 Criminal Revision No.1271 of 2012 facing the agony of criminal trial for the last more than 10 years. He concluded by submitting that while considering the reduction in sentence, fine may be suitably increased.
Learned counsel for the petitioners submitted that petitioner Rajesh Chawla was 43 years of age. He was also first offender and was not found involved in any other case. He had already paid the fine. He had also been running his business and was an income tax assessee. Learned counsel for the petitioners further submitted that the mitigating circumstances in both the cases were almost the similar. He also submitted that in view of the custody certificates dated 11.05.2012 filed on behalf of respondent-State by way of affidavit of Rai Sahab, Deputy Superintendent, District Jail, Faridabad, both the petitioners have undergone the actual sentence for 3 months and 10 days out of the total sentence awarded to them to undergo rigorous imprisonment for one year. Thus, learned counsel for the petitioners would submit that since no charge under Sections 3,5 and 6 of the Act was substantiated against the petitioners, their conviction was only for the offence allegedly committed under Section 4 of the Act, which was also a mitigating circumstance in favour of the petitioners.
Per contra, learned State counsel has submitted that the over all conduct of the petitioners of indulging in immoral traffic do not entitle them for any sympathetic view. Learned State counsel further contended that since the sentence awarded to the petitioners was not on higher side, no reduction in sentence is called for in the present case. He prays for dismissal of both the criminal revision petitions.
I have heard learned counsel for the parties and with their able assistance have gone through the record of the case. After giving Criminal Revision No.1254 of 2012 8 Criminal Revision No.1271 of 2012 thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, this Court is of the considered opinion that it is just and expedient to reduce the sentence of the petitioners to the period already undergone by them. I say so owing to the mitigating circumstances noted above. It is the settled proposition of law that each case is to be decided on its peculiar facts and circumstances .
The view taken by this Court also finds support from the judgments of the Hon'ble Supreme Court in the case of 2006(4) R.C.R. (Criminal) 645 titled as "R. Soundarajan v. Seed Inspector, Coimbatore and another" and "Umrao Singh v. State of Haryana, 1981 AIR (SC) 1723.
The relevant observations made by the Hon'ble Supreme Court in the case of R. Soundarajan v. Seed Inspector, Coimbatore and another (Supra)" are as under:-
"26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment."Criminal Revision No.1254 of 2012 9
Criminal Revision No.1271 of 2012 In the other case titled as "Umrao Singh v. State of Haryana, (supra), the Hon'ble Supreme Court observed as under:-
"After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16(1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/ petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.
2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith.
3.The appeal is disposed of accordingly."
Reverting to the facts of the present case and keeping in view the mitigating circumstances noted above, this Court is of the considered view and has no hesitation to conclude that the ends of justice would be adequately met if the sentence of the petitioners is ordered to be Criminal Revision No.1254 of 2012 10 Criminal Revision No.1271 of 2012 reduced to the period already undergone by them, while increasing the fine to ` 25,000/-, each.
In view of the peculiar facts and circumstances of the present case noted above, coupled with the reasons aforementioned, the conviction of the petitioners in both the criminal revision petitions is upheld. However, the sentence is ordered to be reduced to the period already undergone by each of them. The sentence of fine is increased from ` 1000/- to ` 25,000/- in each case.
The fine, as enhanced above, shall be paid by the petitioners within a period of two months which shall be deposited in the account of Haryana State Legal Services Authority. In case, the fine is not deposited by the petitioners within the stipulated period, both the criminal revision petitions would be deemed to be dismissed.
With the modification in sentence, as noted above, both the criminal revision petitions bearing Criminal Revision No.1254 of 2012 (Anil Kumar versus State of Haryana) and Criminal Revision No.1271 of 2012 (Rajesh Chawla versus State of Haryana) are dismissed.
Resultantly, the petitioners namely Anil Kumar son of Dharambir Singh and Rajesh Chawla son of Kewal Krishan Chawla are directed to be released, forthwith, in case they are not required in any other case.
(RAMESHWAR SINGH MALIK) JUDGE 09.07.2012 neenu