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.


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