J U D G M E N T
This Criminal Revision Petition is directed against the Order dated 10.09.2010 of the learned Sessions Judge, Special Division-I, Sikkim at Gangtok, in Criminal Appeal No. 8 of 2010, upholding the judgment and order dated 18.08.2006 passed by the Learned Judicial Magistrate, East Wangdi, J. at Gangtok, in V.C Case No. 5 of 2004, convicting the petitioner under Sections 465/468/471 IPC and sentencing him to undergo simple imprisonment for one year for the charge under Section 471 read with Section 465 IPC and two years simple imprisonment for the offence under Section 468 and also to pay a fine of Rs. 2000/-, in default of payment of which he was to undergo simple imprisonment for a further period of two months.
2. Shorn of all details and restricting to the facts that would be relevant for the purpose of this petition, it may be stated that the petitioner Tashi Dadul Bhutia, who was employed as a Sanitation Supervisor in the Urban Development and Housing Department at Singtam, East Sikkim, was found to have committed the offence of making fake trade licences and issuing them to various persons. The Sikkim Vigilance Police, Gangtok, ultimately filed a charge sheet against the petitioner and others for offences under Sections 465/468/471 IPC in the Court of the learned Judicial Magistrate, East Sikkim. After trial, the learned Judicial Magistrate having found the petitioner guilty of the offences, convicted and sentenced the petitioner as aforesaid. In appeal, this decision was upheld by the learned Sessions Judge, Special Division-I, Sikkim at Gangtok, in Criminal Appeal No. 8 of 2010. The facts thus far stand undisputed.
3. When this petition was taken up for hearing, the learned Counsel for the petitioner submitted that he would prefer not to press the petition on the merits of the judgment of the Appellate Court, but would restrict it only on the question of sentence.
4. Mr. S.S Hamal, learned Counsel appearing on behalf of the petitioner, submitted that, having regard to the facts of the case and other mitigating circumstances, the sentence passed against the petitioner is quite harsh and deserved to be modified. It was submitted that this was not a case where the sentence against the convict should be retributive, but rather ought to be reformative. As per the learned Counsel, the mitigating circumstances which appear against the petitioner are that : (i) although at present the petitioner is of 30 years of age, he was only of 22 years when the offence was committed, (ii) he is an orphan; (iii) the offence is the first one committed by him and has no previous criminal record; (iv) that he is the sole bread earner of his unemployed helpless wife and minor child; (v) that he was in judicial custody for a total period of 88 days as on 11.11.2010, which by itself is sufficient punishment, considering the trauma he has undergone and (vi) that it is 8 long years since the commission of the offence.
5. The learned Counsel cited several decisions of the Hon'ble Supreme Court, where it has been held that while inflicting sentence the totality of factors appearing on the offence and the offender require to be taken into consideration and then fix punishments which will promote effectively the punitive objective of the law, i.e, deterrence and rehabilitation. We may cite some of them which are as under:-
Ashok Kumar v. State (Delhi Adm.) AIR 1980 SC (1) 636 para 2
“2. The convictions being concurrent and no substantial infirmity being present, we have confined leave to appeal to the question of sentence only. But sentencing - the cutting edge of the judicial process - is the crucial strategy of the criminal law in achieving social defence and delinquent rehabilitation. So we have to consider the totality of factors bearing on the offence and the offender and fix a punishment which will promote effectively the punitive objective of the law - deterrence and habilitation.”
(emphasis supplied)
Shailesh Jasvantbhai v. State of Gujarat (2006) 2 SCC 359 paras 7, 8, 9 and 11.
“7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: “State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N
9. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
10. ………………………………………….
11. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of the crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” (emphasis supplied)
6. It is further submitted that in cases of similar nature, the Courts have been exercising its discretion in reducing sentences, and that, considering the circumstances stated hereinbefore, this is a fit case where this Court in exercise of its discretion should reduce the sentence. Specific references in this regard have been made to the cases of K. Duraiswamy v. State of Tamilnadu : AIR 1982 SC 51; Beena Philipose and Another v. State of Kerala : (2006) 7 SCC 414 and of Ashok Kumar v. State (Delhi Adm.) : AIR 1980 SC 636.
7. Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor, appearing on behalf of the State Respondent, in his usual fairness, did not dispute the principles of law as regards the imposition of sentence and placed before this Court the case of Mohammad Giasuddin v. State of A.P : (1977) 3 SCC 287 and referred to the following passage thereof: -
“9. Western jurisprudes and sociologists, from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : ‘society prepares the crime, the criminal commits it’. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that ‘crime is the result of the lack of the right kind of education’. It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to antisocial behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an ‘in terrorem’ outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : ‘If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries’. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : ‘If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences’. In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion :
Circuit Judge Christmas Humphreys told the BBC reporter recently that a Judge looks ‘at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself’. In the context of karuna and punishment for karma the same Judge said : ‘The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him, that is what compassion means’. (emphasis supplied)
8. It was the submission of the learned Additional Public Prosecutor that, as the findings on the conviction has been abandoned on behalf of the petitioner, the question of sentence be decided by the Court as deemed fit having regard to the facts and circumstances of the case, it being purely an exercise of discretion by this Court.
9. On careful consideration of the facts of the case, the submissions made on behalf of the parties and the legal position obtaining in respect of the question of sentence, it is held as will follow hereafter. The general principles governing sentence is quite well laid down. In fixing punishment, various factors have to be taken into consideration, namely, the nature of the offence, the circumstances in which it is committed, the degree of deliberation shown by the offender, the antecedents of the offender, his age, character, etc. As we have seen from the decisions of the Apex Court, there is a need to strike a balance between rehabilitation and deterrence while awarding sentence.
10. In the present case, it is undisputed that it is more than 8 years since the commission of offence when the petitioner was of the tender age of 22 years, at which age one is vulnerable of being misguided and led astray. The offence was the first of its kind and, we find from the records that the persons who were co-accused in the crime and who were undoubtedly shrewd businessmen, have since been acquitted. The petitioner is an orphan and the sole bread earner of his family consisting of a minor child and a wife who is unemployed. As a consequence of the criminal case against him, the petitioner was dismissed from service by the Urban Development and Housing Department. Records of the trial Court show that he has not caused any delay in the course of trial and has cooperated in its unimpeded culmination. All these facts in my view are mitigating circumstances as they sufficiently indicate that the petitioner has the potential to reform himself and lead a life as a responsible citizen in the society. It will, therefore, be in the interest of justice if the sentences passed against the petitioner are varied in the following manner:-
(i) Under Sections 471 and 465 IPC - 1 month.
(ii) Under Section 468 IPC - 2 months.
(iii) The period already undergone in custody during investigation and trial be set off against the sentences.
11. In the result, the Criminal Revision Petition is allowed in part.
12. No order as to costs.
(S.P Wangdi)
Judge
15.11.2010
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