Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Uday Umesh Lalit, Hemant Gupta* and S. Ravindra Bhat, JJ., addressed the instant appeal filed against the order of the High Court of Judicature at Allahabad, whereby the High Court had declared the order of punishment passed by Milk Commissioner/Registrar as incorrect. The Supreme Court stated,

“In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority.”

Issue before the Court

A petition was filed before the High Court to assail an order of punishment, whereby the one Jagpal Singh (employee) was ordered to be reverted to the minimum pay scale and the period of suspension was to be considered as a period spent by the employee in service. The order of punishment was passed after the prior approval Commissioner (Dairy Milk), designated as Registrar by the State Government. The said punishment was imposed due to manipulation in the weight measurement.

The employee contended that there was an undue and unexplained haste in passing the impugned order as the order was passed without taking prior approval under Regulation 87 of the Service Regulations from the competent authority i.e., the Uttar Pradesh Co-operative Institutional Service Board. The High Court found that the punishment order had been passed by the Chairman of the Administrative Committee and the approval for the punishment had also been granted by the same person. Therefore, relying on the case of Chandra Pal Singh v. State of U.P., 2018 SCC OnLine All 5992 the Court held that the approval in the instant case was inappropriate and was given by an incompetent authority.

Noticeably, the Administrative Committee in exercise of the powers conferred under Rule 10 of the Dairy Service Rules read with proviso to Rule 15 passed an office order that prior to imposing of penalty, the approval of Dairy Milk Commissioner/Registrar would be mandatory. It is in terms of the said Circular that the order of punishment was passed against the employee after approval from the Commissioner (Dairy Milk), discharging functions as the Registrar.

Findings of the Court

The Bench opined that the High Court in the impugned judgment and in Chandra Pal Singh’s case proceeded on wrong assumptions of facts and law. Pertinently, by a notification dated 17-11-1979 issued by the State Government, Pradeshik Co-operative Dairy Federation, Central or Primary Milk Societies, whose area of operation extends to more than one district or State and Co-operative Milk Unions, were taken out of the control of Uttar Pradesh Co-operative Institutional Service Board. Instead a Selection Committee was constituted in respect of Category I and II employees. Thereafter, it was the Selection Committee who was empowered for the purpose of recruitment, training and disciplinary control of the employees of Dairy Co-operative Societies until the Dairy Service Rules came into force upon publication of the Gazette on 29-08-1984. Section 122-A inserted in the 1965 Act which opens with a non-obstante clause should be taken to have an overriding effect over the general regime; accordingly,

“The Dairy Service Rules have been framed in exercise of the jurisdiction conferred under Section 122A of the Act. The Regulations can be framed by the Registrar or the State either under Section 121 or 122 of the Act or in terms of Rule 9 of the Dairy Service Rules. Such Rules would have precedence over the Regulations, which are framed or are required to be framed either by the Registrar or by the Authority entrusted with the task of recruitment, training and disciplinary control.”

The proviso to Rule 15 empowered the Administrative Committee constituted under Rule 5 as an Appointing Authority and the authority to exercise disciplinary control over the employees of the centralised services till the time regulations are framed. Thus, the Bench was of the view that the resolution dated 20-09-984 would be applicable in respect of other service conditions. However, with regard to disciplinary control, it would be the Dairy Service Rules which would be applicable.

Therefore, the Bench opined that in terms of proviso to Rule 15, the Chairman of the Administrative Committee is the Appointing and Disciplinary Authority. Hence, the Service Regulations would be inapplicable to determine the Appointing Authority and/or the Disciplinary Authority in respect of the employees of Co-operative Milk Societies. The Bench stated,

“The Resolution dated 20-09-1984 will not determine the Appointing or Disciplinary Authority, the same being covered by the Statutory Rule namely the Dairy Service Rules.”

Regulation 106 of the Service Regulations which empowers the State Government or the Registrar to pass such orders not inconsistent with the Regulations in respect of termination, dismissal or removal would not be applicable in the instant case, since the punishment imposed was of reversion and not of either termination, dismissal or removal. Therefore, the order of punishment passed by the Chairman of the Administrative Committee was by the competent Disciplinary Authority.

Sir William Wade in his Administrative Law stated:

“But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity…” It was further stated: “In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested.”

The Milk Commissioner had been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar was in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. Considering that the exercise of the powers under the Act were conferred by designation and the prior approval of the punishment was by the Registrar; if, incidentally, the person holding the post of Registrar was also Chairman of the Administrative Committee, it could not be said to be illegal.

Consequently, since the Chairman of the Administrative Committee happened to be the Registrar, the decision to impose punishment may not require prior approval. Hence, it was held that there was nothing wrong in the exercise of power by the Chairman, neither was there any error in the order of punishment passed by the Administrative Committee. The instant appeal was dismissed.

[Milk Union & Dairy Federation Centralized Services v. Jagpal Singh, 2021 SCC OnLine SC 245, decided on 23-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Op EdsOP. ED.

Introduction

The Prevention of Money-Laundering Act, 2002[1] (PMLA) is a pro-active legislation keen on curbing money-laundering and bringing violators to justice. Such a legislation is definitely the need of the hour considering the number of scams this country has seen in its past and a strong law securing the 4 walls of justice for offenders is welcomed by the people at large. However, off-late, criminal law practitioners (defense lawyers) have found it challenging to deal with PMLA for the fact that the 4 ends securing the 4 walls of ‘presumed’ justice is far too airtight even for genuine non-offenders to escape its clutches, if caught by sheer happenstance. This article deals with one such scenario.

PMLA punishes an individual for the offence of money-laundering under Sections 3 and 4 which read as follows:

3. Offence of money-laundering.— Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. 

[Explanation. – For the removal of doubts, it is hereby clarified that,

(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely,

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property, in any manner whatsoever;

 (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever].

  1. Punishment for money-laundering.— Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine:

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years, the words which may extend to ten years had been substituted.

On a bare reading of these two provisions, any money that is construed to be ‘proceeds of crime’ is liable to be punished under PMLA. ‘Proceeds of crime’ is defined under Section 2(1)(u) as any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence[2]. It is my contention that an offence under the PMLA cannot be a stand-alone offence, as an offence is required to be committed (under the Schedule) for the monies/properties to be deemed ‘proceeds of crime’. Without commission of a crime, there exists no proceeds from crime.

The Karnataka High Court in K. Sowbaghya v. Union of India[3] has observed that:

having regard to the meaning attributed to ‘proceeds of crime’ under PMLA, whereby crime contemplated is the alleged scheduled offence, the ‘proceeds of crime’ contemplated under Sections 3 and 4 are clearly and inextricably linked to the scheduled offence and it is not possible to envision an offence under PMLA as a stand-alone offence without the guilt of the offender in the scheduled offence being established.

Therefore, on a logical reasoning of the said proposition, only if an offence under the Schedule to PMLA is committed, then the question of proceeds of crime arises.

Coming to the thesis or central question for discussion in this article, there are various offences under various statutes that have been adduced as scheduled offences under the PMLA, and for the major part of the Schedule, I have no quarrel with the intention of the legislature. For example, an offence under Section 25 of the Arms Act (which is a scheduled offence under the PMLA) punishes the individual who possesses or sells unlicensed arms and ammunition. The PMLA, rightly so, punishes the individual for the proceeds he/she has made or property acquired through such possession or sale. Taking another example, certain offences under the Penal Code, 1860 such as Sections 364-A (kidnapping for ransom), 384 to 389 (extortion), 392 to 402 (robbery and dacoity) etc are also scheduled offences under the PMLA. Similar to the previous example, IPC punishes the accused for the offences of kidnapping, extortion or robbery/dacoity whereas the PMLA punishes the accused for the money made or property acquired from the commission of such crimes.

The problem arises when considering offences under the Prevention of Corruption Act, 1988[4] (the PC Act), particularly Section 13. Offences under Section 13 (criminal misconduct by a public servant), also a scheduled offence under PMLA, punishes a public servant for receiving illegal gratification by using his/her public office, misappropriating property or owning/possessing property worth beyond known sources of income or illicit enrichment of wealth (general overview). Contrary to the argument that the PC Act only punishes a person for being corrupt or misusing his public office and PMLA punishes the monies made or properties acquired from such misconduct, I argue that the PC Act collectively performs the functions of the PMLA as well.

The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from money-laundering. Therefore, the function of PMLA is to seize/confiscate the properties so enjoyed by individuals who have acquired such property by commission of one or more offences which can be acted upon under the Act, apart from punishment for holding such property. The PC Act on the other hand, not only punishes an individual for being corrupt and holding tainted property, it also takes away any property/money derived from such abuse of power/criminal misconduct for the same reason that such property was acquired through illegal means.

The Supreme Court while dealing with a case under the PC Act in Yogendra Kumar Jaiswal v. State of Bihar[5] held that:

If a person acquires property by means which are not legally approved, the State would be perfectly justified to deprive such person of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them, do not enjoy such wealth.  Such a deprivation would certainly be consistent with the requirement of Articles 300-A and 14 of the Constitution which prevent the State from arbitrarily depriving a person of his property.

When the PC Act inclusively curbs and confiscates “proceeds of crime”, would prosecution for the same under PMLA not amount to double jeopardy?

Provisions of the PC Act examined

An analysis of Section 13 of the PC Act will shed further light on this theory. Section 13 reads as follows:

13. Criminal Misconduct by a Public Servant. [(1) A public servant is said to commit the offence of criminal misconduct,

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.- The expression known sources of income means income received from any lawful sources.]

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.[6]

Most cases pending or newly charged are predominantly under the provisions prior to the 2018 amendment due to the check period and hence, emphasis will also be placed on Sections 13(1)(a) to (e), as they were, prior to the amendment. However, the following explanation would be squarely applicable to Section 13 as it is subsequent to the amendment also.

Provision

(Before Amendment)

Key Word/Phrase
13(1)(a) Gratification other than legal remuneration
13(1)(b) Valuable thing
13(1)(c) Misappropriates property entrusted to him or under his control
13(1)(d) Valuable thing or pecuniary advantage
13(1)(e) Pecuniary resources or property disproportionate to known sources of income
(After amendment) Key Word/Phrase
13(1)(a) Misappropriates property entrusted to him or under his control
13(1)(b) Intentionally enriches himself illicitly

All these provisions have a key word or a phrase within which the alleged actions have to fit into for them to be charged with one of the above offences (all of which are scheduled offences under PMLA). At this point, it is also pertinent to examine the definition of ‘property’ as under Section 2(1)(v) of PMLA:

(v) “property” means any property or asset of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located;

Explanation.– For the removal of doubts, it is hereby clarified that the term “property” includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences;”

A bare reading of this definition would show that all keywords/phrases for making one liable under Section 13 of the PC Act also (on interpretation) fall under the definition of Section 2(1)(v) of PMLA. Apart from jail time, the objective of Sections 3 and 4 of PMLA are to confiscate any property that is construed to be from proceeds of crime as the person holding the said property has not obtained and enjoyed them through legal means. This, in its very essence is what Section 13 is also trying to accomplish. The Oxford English Dictionary defines the word “pecuniary” as “of or in money”, thereby making construction of the term ‘pecuniary advantage’ to also fall under the definition of property under Section 2(1)(v) of PMLA. This comparison is only to show that cumulatively, Section 13 of the PC Act and Sections 3 and 4 of PMLA are trying to achieve the same goal and have the same objectives. Therefore, initiating action against an individual under both the provisions of law for the same offence or transaction, would amount to double jeopardy.

It is agreed as stated by the Andhra Pradesh High Court in B. Rama Raju v. Union of India[7] that punishment under Sections 3 and 4 of PMLA are distinct proceedings from Section 5 which is attachment of property and subsequent confiscation. However, in a PC Act case, the trial court (CBI Court in most jurisdictions) passes an order of attachment of tainted property or property under presumption that it is through illegal gratifications during the pendency of trial. This is where Section 5 of PMLA comes in conflict with the proceedings already pending before the trial court. Once the properties are already attached and since the PMLA also permits an order of attachment under Section 5, the Enforcement Directorate making an application to transfer all properties from CBI to ED is prima facie posing a direct threat to the investigation conducted by CBI.[8] Both the agencies are looking into the same properties for offences committed and further, only if an offence is established by CBI can it be treated as ‘proceeds of crime’ by ED.

The Supreme Court in Kanhaiyalal v. D.R. Banaji[9] had held that:

 “If a court has exercised its power to appoint a receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other courts or tribunals of coordinate or exclusive jurisdiction were to permit proceedings to go independently of the court which was placed the custody of the property in the hands of the receiver, there was a likelihood of confusion in the administration of justice and possible conflict of jurisdiction.

Even though the observations made therein were in a civil case, the same principles are to be applied to criminal cases also, as attachment of property in these matters are quasi civil in nature. If the Enforcement Directorate were to interfere with pending proceedings conducted by CBI, then there would arise a conflict of jurisdiction since both are on the basis of the same offence and properties possessed therein.

The most essential ingredient for an offence under Section 3 of PMLA is the existence of property that is deemed to be a proceed of crime and Section 13 of the PC Act, quintessentially performs the twin function by making the accused public servant liable for abusing his/her office, possessing such property as well as confiscating the said property since it is a proceed of a ‘crime’ committed by the public servant. To makes things more convincing, punishment under Section 13(2) of the PC Act is much more severe than Section 4 of PMLA, thereby justifying its twin purpose.

Double Jeopardy explained

The concept of double jeopardy has been known to mankind from time immemorial. Dating back to 355 BC in Athens, Greece, the law forbids the same man to be tried twice on the same issue. Double jeopardy or non bis in idem is a procedural defense that prevents a person from being tried again on the same or similar charges following a valid conviction or acquittal. The principle of double jeopardy in India existed prior to the drafting and enforcement of the Constitution. It was first enacted in Section 403(1) of the Criminal Procedure Code, 1898 which is now Section 300 of the amended Criminal Procedure Code, 1973. A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India, which states “No person shall be prosecuted and punished for the same offence more than once”.

In Thomas Dana v. State of Punjab[10], a Constitutional Bench of 5 Judges laid down 3 requirements for double jeopardy i.e. prosecution, punishment and same offence. If these 3 are complied with, then the protection under Article 20(2) is guaranteed.

Section 300 of the Code of Criminal Procedure also protects a person from being tried again where he/she has already been tried and acquitted/convicted for the same offence. Section 26 of the General Clauses Act states that:

 “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

This is further enumerated by the Supreme Court in Manipur Administration v. Thokchom Bira Singh[11], that for Article 20(2) and Section 26 of the General Clauses Act to act as a bar for second prosecution and its consequential punishment thereunder, it must be for the same offence that is, an offence whose ingredients are the same. Applying the principles of Section 26 of the General Clauses Act, Article 20(2) and the above decision of the  Supreme Court to the present question at hand, it can be stated that since the offence for which PMLA is invoked is essentially the same offence as under the PC Act, the above provisions will get attracted. Therefore, ingredients, occurrences and circumstances are the same for an offence under Section 13 of the PC Act and Sections 3 and 4 of PMLA (including evidence, both oral and documentary) i.e. money/properties acquired through commission of an offence, it is to be concluded that prosecution under PMLA is a second trial for the same offence when the PC Act proceedings are pending or have attained finality.

Conclusions

I have, in this article, tried to give an outline that prima facie, Section 13 of the PC Act and Sections 3 and 4 of PMLA do not harmoniously gel with each other. On the one hand, only if the primary or scheduled crime is made out can a prosecution under PMLA be maintainable (there are certain lines of thought which state, offence under PMLA is stand-alone and is not dependent on any other offence being proved/committed) and on the other hand, even on the existence of an offence under Section 13 of PC Act, the PC Act is a self-sufficient Act which punishes the accused for both abusing the position of being a public servant, as well as having acquired or being in possession of illegal gratification or property that is either misappropriated or disproportionate to known sources of income. Hence, a subsequent action under  PMLA is nothing but a violation of the constitutionally protected fundamental right against double jeopardy. In concluding remarks, it would be pertinent to note that the Schedule to PMLA is to be revisited and pros and cons are to be considered by the Courts having jurisdiction as to whether the provisions of the PC Act (not restricted to Section 13) are to be considered scheduled offences under PMLA.


*Advocate, Madras High Court

[1] Prevention of Money Laundering Act, 2002

[2]Indian Bank v. Government of India, 2012 SCC Online Mad 2526  

[3] 2016 SCC Online Kar 282

[4] Prevention of Corruption Act, 1988

[5](2016) 3 SCC 183

[6]Prior to the 2018 amendment, Section 13(1) reads as follows;

  1. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,—

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing

or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

[7] 2011 SCC OnLine AP 152

[8] I take this stand being fully aware of the fact that Section 18-A of the PC Act, pursuant to the 2018 amendment, has paved way and given priority to provisions of PMLA (with respect to attachment) over the Criminal Law (Amendment) Ordinance, 1944 under provisions of which attachment and confiscation are usually made under the PC Act. This bereft of the fact that if attachment in PMLA takes precedence over the PC Act, then the whole idea of establishing proceeds of crime would become null as the procedure for trial are different under both Acts and trial under PMLA is much more accelerated due to its narrow scope for the offence of proceeds of crime.

[9] 1959 SCR 333

[10] 1959 Supp (1) SCR 274

[11] (1964) 7 SCR 123 

Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the Public Interest Litigation filed on the basis of a news report observed in regard to “Judicial Commission” that,

“In absence of any concrete evidence and facts, appointing Judicial Commission would be a futile exercise”

The present Public interest Litigation was filed based on a news item published in “The Hindu” newspaper on 10-05-2020 entitled “Police, not Judges, award punishment”.

Baglekar Akash Kumar wrote a letter to the Chief Justice in view of the incident reported in the above-stated news item. In the said news item 5 accused persons were alleged to have committed the offence under Section 319 of Penal Code, 1860.

The said accused persons were allegedly made to move barricades under the scorching summer sun by the police.

The above-stated act amounts to the torture inflicted by the police and hence necessary action was sought by the petitioner against the police personnel.

Further, the petitioner’s counsel submitted that since the identity of the accused persons was changed by the reporter of “The Hindu”, it remains unknown. Hence, to enquire into the veracity of news, a Judicial Commission should be appointed.

Petitioner’s counsel also relied on a Supreme Court’s decision in Sheela barse v. State of Maharashtra, (1983) 2 SCC 96.

Decision

Since the reporter himself is not in a position to reveal the identity of the accused persons, it is very difficult to find out the actual identity of the alleged accused persons, who ere allegedly forced to move barricades in hot summer days.

To appoint Judicial Commission would be a futile exercise in absence of concrete evidence and facts

Court in regard to Judicial Commission stated that,

Judicial Commission cannot be asked to go on a wild goose chase. The appointment of the Judicial Commission is a serious step. It cannot be taken lightly.

In the present matter, all the witnesses have clearly stated that they had helped the police voluntarily which gives the Court no reason to disbelieve their statements.

In view of the above circumstances, the bench is not inclined to appoint a Judicial Commission to examine the alleged incident.

In view of the above writ petition was disposed of. [Baglekar Akash Kumar v. State of Telangana, 2020 SCC OnLine TS 1005, decided on 04-09-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and Devika Abeyratne, JJ., allowed a Revision Application which was filed in order to set aside the order of the High Court Judge of Kandy and impose an appropriate sentence.

The prosecutrix was aged 12 years at the time of the commission of the alleged offence committed by her biological father and he was booked under two charges first one being Section 364 (3) of the Penal Code amended by Act no. 22 of 1995 and secondly under Section 365 B (2) b of the Penal Code amended by Act No. 22 of 1995. When the charges were being read out the accused-respondent had pleaded not guilty and later before the conclusion of evidence he had pleaded guilty to both charges. Accordingly, the High court had imposed 1-year rigorous imprisonment suspended for 20 years and a fine of Rs 10,000 for both the charges each. He was also ordered to give Rs 2,00,000 to the prosecutrix as compensation.

The Counsel for the petitioner, Chathuri Wijesuriya had submitted various grounds as exceptional circumstances which warranted exercising revisionary jurisdiction the Court which included Lawful sentence to be imposed as per the amended Penal Code, Applicability of SC Appeal No. 17 of 2013 and factors to be considered while determining a sentence.

The Court relied on a number of landmark Judgments as of The Attorney General v. H.N. de Silva, 57 NLR 121; Attorney General v. Jinak Sri Uluwaduge, [1995] 1 Sri LR 157; The Attorney General v. Mendis, [1995] 1 Sri LR 138 and concluded that the accused-respondent should have been given deterrent punishment. The Court while allowing the Revision Application stated that the Respondent had committed the grave crime with proper pre-planning to his own daughter thus the sentence imposed by the High Court was grossly inadequate. The Court further modified the sentence making the imprisonment of 15 years in the first charge and 7 years in the second charge respectively. [Attorney General v. Hewaduragedara Nilantha Dilruksha Kumara, CA (PHC) APN: 01 of 2017, decided on 26-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudhir Mittal, J., while addressing an issue with regard to the dishonour of cheque held that,

“Offence under Section 138 NI Act is quasi-criminal in nature and it is not an offence against society, hence an accused can escape punishment by settling with the complainant.”

Revision petitioner issued a cheque to the complainant–respondent 1 which was dishonored. 

On the dishonour of cheque, the complainant sent a notice demanding payment of the cheque amount but no response was received.

In view of the above, he filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

Revision petitioner was acquitted and later he filed an appeal against the said Judgment and the case was remanded for a fresh decision.

Appeal against the aforementioned judgment of conviction was dismissed which lead to the filing of the present revision petition.

In the present appeal, the revision petitioner prayed for a reduction in the quantum of sentence.

Question for adjudication is — Whether the petitioner is entitled to reduction of his sentence?

When can a Revisional Court exercise its powers to alter the nature or the extent or the nature and extent of the sentence?

Do sympathetic consideration have any role to play in the matter of sentencing?

Sentencing is primarily a matter of discretion as there are no statutory provisions governing the matter.

Bench citing the decision of the Supreme Court in State of Himachal Pardesh v. Nirmala Devi, 2017 (2) RCR (Criminal) 613, stated that the sentence imposed must be commensurate with the crime committed and in accordance with jurisprudential justification such as deterrence, retribution or restoration. Mitigating and aggravating circumstances, both should be kept in mind.

Court added that the provisions inserted for inculcating greater faith in banking transactions needed more teeth so that cases involving dishonour of cheques reduced.

Therefore, it is apparent that deterrence and restoration are the principles to be kept in mind for sentencing.

In the present matter, the order of sentence for 2 years has been imposed on the grounds that the offence is a socio-economic offence.

Award of compensation is also justified and reflects a judicious exercise of mind.

In view of the above, the revision petition was dismissed and maintained. [Rakesh Kumar v. Jasbir Singh, 2020 SCC OnLine P&H 1197, decided on 11-08-2020]


Also Read:

Dishonour of Cheque [S. 138 NI Act and allied sections]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, Prasanna Jayawardena and L.T.B. Dehideniya, JJ., dismissed an appeal filed by the appellant aggrieved by the punishment enhanced by the Court of Appeal.

The accused-appellant was indicted before the High Court for the offence of murder of one Henry Peter Vittachchi (deceased) punishable under Section 296 of the Penal Code. He had pleaded not guilty and thus the trial had commenced where the prosecution had led evidence of 5 witnesses, including a purported eye witness. Later the accused-appellant withdrew his earlier plea and pleaded guilty of the offence of culpable homicide not amounting to murder on the basis of ‘a sudden fight and provocation’. The Court had imposed a sentence of two years rigorous imprisonment which sentence was suspended for a period of 15 years with additional fine. Aggrieved by which an appeal was filed by the son of the deceased for imposing a punishment which was commensurate with the gravity of the offence. The Court of Appeal had set aside the sentence of the learned High Court Judge and imposed a sentence of 6 years rigorous imprisonment plus a fine. Thus the instant appeal was filed against the judgment of the Court of Appeal.

The Court while dismissing the appeal explained on the questions of law and found that no specific argument was put forward as to the illegality of the judgment and thus answered the questions of law in negative directing the High Court to implement the sentence imposed by the Court of Appeal. [Kathaluwa Weligamage Amararathne v. Thisantha Mahendra Vittachchi, 2019 SCC OnLine SL SC 16, decided on 17-07-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, CJ, and H.S. Thangkhiew, J. dismissed an appeal filed against the trial court decision whereby the appellant was convicted for the offence punishable under Section 376 (punishment for rape) IPC.

The appellant was accused of committing rape upon the child-victim. Pertinent to note that he was acquitted by the trial court of the charge of rape levelled against him, in the first instance. Thereafter, the State appealed against his acquittal which was allowed by the High Court and the matter was remanded back for re-trial. After the conclusion of the re-trial, the appellant was convicted under Section 376 and sentenced accordingly. He challenged the decision of the trial court by filing the present appeal.

Senior Advocate S.P. Mahanta assisted by A. Thungwa, Advocate appeared for the appellant. Per contra, S. Sen Gupta, Additional Public Prosecutor represented the State. One of the many contentions raised by the appellant was that his case was prejudiced at the re-trial.

The High Court in reference to the aforesaid contention noted that it has no force as the High Court Judgment which ordered the re-trial was not challenged. It was also found that the appellant and his counsel actively participated in the proceedings at the re-trial and at no stage it was agitated that any rights of the appellant were infringed. The Court said: “It was nowhere mentioned that any of the witnesses during examination or cross-examination has made any improvement or has made any substantial deviation giving rise to any prejudice. Now, after the accused is convicted and sentenced, to contend that by re-trial gaps and lacunas have been filled up is an otiose theory only to be rejected.” On such and other incidental reasoning, the Court dismissed the appeal while upholding the trial court’s decision. [Small Phawa v. State of Meghalaya, Crl. A. No. 5 of 2016, dated 02-04-2019]

Case BriefsForeign Courts

High Court of South Africa, Kwazulu-Natal Division: This appeal was filed before a 3-Judge Bench comprising of Henriques, Lopes, and D Pillay, JJ., where the sentences passed against accused charged with murder was in question.

The facts of the case were that appellant was alleged for murder and other offences and as consequence of the same he was punished for 30 years, 30 years and 10 years for different counts. The sentences imposed for first and last count were ordered to run concurrently. This means that the accused was to be sentenced for 60 years of imprisonment. Appellant contended that the trial court did not consider his age while sentencing him which was 23 years and that court committed misdirection in not declaring all the sentences were to be run concurrently. It was to be noted that the offences he was charged under were in proximity of time with common intent. Respondent made a submission that a sentence of life imprisonment was appropriate in respect to offence of murder. Respondent justified the punishment by bringing it to the notice of court appellant’s previous conviction and the particularly vicious and brutal circumstances under which the present offences were committed.

High Court was of the view that 60 years of punishment was a “Methuselah” sentences and was contrary to the objective of sentencing i.e. rehabilitation. Therefore, according to the circumstances of the offence and personal circumstances of the accused, the appellant was sentenced to 30 years of imprisonment. [Dazi v. State, Case No. AR708 of 16, dated 10-08-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Mithlesh Kumar Tiwari, J. while allowing a petition quashed the impugned order whereby the petitioner was awarded a punishment of stoppage of two annual increments on a permanent basis.

The present petition was filed pertaining to challenging an order, according to which the petitioner in the present case had been inflicted the punishment of stoppage of two annual increments permanently. The said punishment was awarded through the order based on the allegation against the petitioner that he was found in possession of and consuming tobacco/pan masala in office premises in an excessive quantity during the course of an inspection.

The submission of the learned Counsel for the petitioner Mr Arvind Kumar was that the punishment imposed is a major punishment under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which could not have been inflicted unless the respondents had followed the detailed procedure of holding a disciplinary enquiry.

The High Court stated that stoppage of two annual increments on a permanent basis is a major punishment and is also not disputed by the learned standing counsel. If that was so it was incumbent upon the respondents to follow the due process as stipulated under the 1999 Rules and which must mandatorily be adhered to before the imposition of a major punishment.

Therefore, on an overall conspectus of the aforesaid facts, the Court allowed the writ petition and reversed the impugned order by quashing the same. [Mithlesh Kumar Tiwari v. State of U.P., Writ-A No. 11408 of 2018, Order dated 13-11-2018]

Case BriefsHigh Courts

Gauhati High Court: A criminal appeal filed against the conviction and sentence of the appellant under Section 302 IPC by the trial court, was partly allowed by a Division Bench comprising of Ajit Singh, CJ and Achintya Malla Bujor Barua, J.

The appellant was accused of murder of his adopted son by giving him a blow with an axe. The appellant who was alleged to have surrendered himself for the said offence, was convicted and sentenced under Section 302 IPC by the trial court. The appellant was in appeal against the decision of the trial court.

The High Court considered the record and found that all of the prosecution witnesses turned hostile. Even the mother of the deceased (wife of the appellant) who was also the first informant in the case, did not support prosecution’s case at all. However, the fact remained that according to the post-mortem report, the death of deceased was indeed caused by the axe-blows and there was no explanation to the fact that how the dead body of the deceased was found in appellant’s house. Nonetheless, the Court was of the view that in light of the fact that the offence was committed in fit of an anger during sudden quarrel between the appellant and the deceased, the appellant could not have been said to have premeditated for commission of the offence. Opining that the punishment for an act done without premeditation on a fit of anger should be less than that for a premeditated offence, the High Court held that the conviction of the appellant shall be modified from that under Section 302 to one under Section 304 Part I of IPC. The appeal was thus partly allowed. [Ranjit Tanti v. State of Assam, 2018 SCC OnLine Gau 585, dated 01-06-2018]

Case BriefsHigh Courts

Patna High Court: The petition challenging the order of reduction in pay scale and stopping of increment was allowed by a Single Judge Bench comprising of Mohit Kumar Shah, J.

The petitioner who worked as a Junior Engineer in the Rural Construction Department was subjected to an enquiry for delinquency in inspection of a construction project. In furtherance of the enquiry so conducted, the pay of the petitioner was reduced to the lowest stage and his increments were also stopped. The said order which was passed on 14.10.2006 was set aside by the High Court in an appeal preferred by the petitioner. Thereafter, another order was passed by the respondents dated 31.3.2016 which was in same terms as the earlier order. This order was challenged by the petitioner in the instant petition.

The High Court considered the record and found that the impugned order was in violation of the terms of Bihar Service Rules as the order did not provide any time frame for the reduction of pay scale. Further, the order proposed to inflict punishment on the petitioner with a retrospective effect, and that could not be allowed. The Court held it to be a settled law that an order of punishment can never be retrospective and it always has to be prospective. Therefore, the Court held that the impugned order was liable to be set aside which was ordered accordingly. [Raj Kishore Sinha v. State of Bihar, 2018 SCC OnLine Pat 825, 18-05-2018]

Case BriefsHigh Courts

Patna High Court: An appeal challenging the conviction and sentence of the appellant under Section 20(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985, was allowed by a Single Judge Bench comprising of Aditya Kumar Trivedi, J.

The appellant was alleged to have been caught with 30 kg of ganja. It was alleged that on receiving information as to the same, the police officials raided appellant’s shop. Though the appellant managed to escape, but 30 kg of ganja was recovered and sealed from his shop in presence of two witnesses. The appellant was charged under Section 20(c), NDPS Act. The Special Judge convicted and sentenced the appellant under the said section. Appellant challenged the decision of Special Judge.

The High Court perused the record and found that while the alleged recovery and seizure of the said contraband material, proper procedure as prescribed by the Act was not followed. Prosecution witnesses did not support the prosecution story. The delay of over six months in getting the FSL report was unexplained. The Court relied on Vijay Jain v. State of M.P., (2013) 14 SCC 527, and held that in the instant case, the prosecution was not able to connect the evidence available to the guilt of the accused. It was observed, “it is the quality and not the quantity which matters while appreciating the evidence in order to search out whether the facts in issue have been proved or not”. Further, mandatory procedures as required by the Act are to be strictly followed because the offence under Section 20(c) is technical offence prescribing stringent punishment. Having find that the investigation in the instant matter was not conducted in strict accordance with provisions of the Act, the High Court set aside the order of the Special Judge convicting and sentencing the appellant under the said section. The appeal was thus allowed. [Naresh Keshari v. State of Bihar,  2018 SCC OnLine Pat 939, dated 28-05-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Chander Shekhar, JJ. reduced the sentence of an accused convicted under Sections 304, 324, 509 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959, from life imprisonment to rigorous imprisonment of seven-and-a-half years in a criminal appeal.

The unfortunate incident took place outdoors in which the deceased was shot in the face with a licensed revolver from about a distance of 15 cm after a quarrel had taken place between the deceased and the accused. The trial court had convicted the accused under the first part of Section 304 of the Penal Code, 1860. The High Court, though agreed with the conviction, was not of the opinion that the harshest penalty under the section was warranted.

The High Court discussed the main object of sentencing, stating that a balance should be maintained while meting out punishment. Punishment should act as a deterrent but it should not be excessive as an excessive or inadequate punishment leads to a failure of justice. Hence, the Court took note of mitigating circumstances such as the young age of the appellant, satisfactory conduct of the appellant in jail and the incident being a chance happening along with the fact that the appellant was a first time offender to reduce the sentence. The appeal was partly allowed with modifications on conviction and sentence. [Sandeep Kumar v. State of NCT, 2017 SCC OnLine Del 9268, decided on 17.07.2017].

Supreme Court

Supreme Court: The Bench comprising of Dipak Misra and Prafulla C. Pant, JJ. vehemently criticised the approach of lower courts in awarding and reducing the quantum of punishment based on the concepts like ‘first time offender’, ‘convicts belonging to weaker section of the society’ and ‘no useful purpose would be served’.

The present case was an appeal which was filed to challenge the reduction of sentence by the High Court, wherein the Court found that the offenders were awarded a sentence of three years under Section 306 IPC by the trial Judge which was subsequently in appeal before the High Court was reduced to the term already undergone by them. The Punjab and Haryana High Court stated that in view of totality of circumstances, no useful purpose will be served by sending the offenders back to jail for remaining sentences of imprisonment.

The Supreme Court while setting aside the reduction of sentence and restoring the sentence given by trial Judge, relying on its previous decisions said that ‘it is discernible how the principle of “first offender” would come into play in such a case. Once the offence under Section 306 IPC is proved there should be adequate and appropriate punishment’. Criticising further, the Court said that, the approach of the High Court as the reasoning shows, reflects more of a causal and fanciful way, while imposing sentence; it has a duty to respond to the collective cry of the society. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with principle of proportionality, as one cannot remain a total alien to agony of the victim and survivors of the victim. Raj Bala v. State of Haryana, 2015 SCC OnLine SC 734, decided on 18.08.2015

 

Supreme Court

Supreme Court: The bench comprising S.K. Mukhopadhaya and Ranjan Gogoi, JJ., referring to the decision in Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 observed that principle of just punishment is the bedrock of sentencing in respect of a criminal offence. The wide discretion that is vested in the Courts in matters of sentencing must be exercised on rational parameters in the light of the totality of the facts of any given case. The doctrine of proportionality has to be invoked in the context of the facts in which the crime had been committed, the antecedents of the accused, the age of the accused and such other relevant factors. 

In the instant case the appellant was convicted under Section 307 IPC (attempt to murder) which was altered by the Delhi High Court to one under Section 326 IPC (voluntarily causing grievous hurt by dangerous weapons or means) with the sentence modified to rigorous imprisonment for 2 yrs. Against the conviction the appeal was preferred to the Supreme Court.

The counsel for the appellant, Mohd. Hanif Rashid’s arguments mostly centered on the quantum of sentence awarded by the High Court contending on the basis of facts that the appellant should be sentenced under Section 324 IPC (voluntarily causing hurt with dangerous weapons and means). The State was represented by Mr Mohan Jain, Additional Solicitor General of the State. Since the facts had proved that the appellant had caused grievous injuries by repeated stabbing by knife, therefore the Court upheld the sentence passed by the High Court. Pritam Chauhan v. State (Govt. of NCT Delhi), Criminal Appeal NO. 1272 of 2014, decided on 01.07.2014

To read the full judgment, refer to SCCOnLine