CHANDRAKANT PATIL

STATE THROUGH CBI

FEBRUARY 2, 1998

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.]

Criminal Law :

Criminal Procedure Code, 1973 : Section 377 (3).

Sentence-Appeal against-By Government-Acquittal-Right of accused to plead/or-Supreme Court already confirmed conviction of accused under S.5 TADA after considering in detail contentions raised by accused and also dismissed review petition-Held :, Right to plead for acquittal confined only to appeals presented by Government to High Court-Hence,

no further opportunity can be afforded to the accused in appeal before D /·· Supreme Court under S.19 of TADA to plead for acquittal by reviewing the findings already made.

Terrorist and Disruptive Acti".ities (Prevention) Act, 1987 :

Section 19--Sentence-Enhancement of-By Supreme Court in appeal- E No appeal presented by Government specifically for enhancement-No revision powers available to Supreme Court as are conferred on High Court and Court of Sessions-Held : Even under these circumstances Supreme Court has power under Art. I 42 r/w S.19 to enhance the sentence for doing complete justice in the matter when in the circumslances of the case ii appars to be too inadequate.

Sec/ion 5--Sentence-Adequacy of-Accused caught red handed while making nocturnal movements towards some targeted destination in densely crowded city with highly lethal and quickly explosive articles-Minimum sentence of 5 years 'RI imposed on accused-Held : Such minimum sentence inadequate-Maximum sentence of file imprisonment also on higher side G which should be reserved for gravest instances of offences-In the circumstances of the case, 10 years' RI is adequate.

Constitution of India, 1950 :

Article 142--Supreme Court's power-Scope-Held : Not limited or H 447

A restricted by any statutory enactment-However, it should be exercised

sparingly. ~

Article 136-Plenary power of Supreme Court-Scope of-Held : Not restricted by appellale provisions enumerated under Cr.P.C. or any other statute.

Sentencing :

Maximum sentence-Held : should be reserved for gravest instances of offences likely to occur as a principle of common sense.

C The appellants-accused were caught red handed while making nocturnal movements towards some targeted destination in the densely crowded city with highly lthal and quickly explosive articles. The appellants-accused were convicted and sentenced to undergo rigorous imprisonment for five years under Section 5 of the Terrorist and Disruptive Activities (Prevention) D Act, 1987.

This Court confirmed the finding regarding the conviction under Section 5 of TADA after considering in detail the contentions raised by the accused and also dismissed the review petition. While confirming the conviction this Court felt that the sentence of rigorous imprisonment for 5 years awarded E by the trial court to each of the accused was inadequate. Hence this Court issued notice to the appellants-accused on the proposal to ehance the sentence.

On behalf of the accused it was contended that the accused had a right to plead for his acquittal as envisaged under Section 377(3) of the Criminal p Procedure Code, 1973; that this Court had no power to enhance the sentence in the absence of an appeal by the Government presented specifically for that )... purpose more so because this Court had no revisional power_s which the High ( Court and the Court of Sessions were conferred with by the Code; and that the power under Article I 42 of the Constitution should be sparingly used and that too in exceptional cases.

G Disposing of the appeal, this Court

HELD : 1. The right envisaged in Sction 377(3) of the Criminal Procedure Code, 1973 shall be confined to appeals presented by Government to the High Court against sentence on the ground of its inadequacy. There H is no scope to afford a further opportunity in the appeal, at this stage, since

' •

C. PATIL v. STATE 449

the finding of the trial court has already been considered elaborately by re- A evaluating the entire evidence in the light of the elaborate arguments canvassed on behalfof the parties. A repetition of the whole process over again is, apart from waste of time of this Court, unnecessary and unwarranted by law.

1452-E-F]

2.1. Powers of the Supreme Court in appeals filed under Article 136 B of the Constitution are not restricted by the appellate provisions enumerated under the Code or any other statute. When exercising appellate jurisdiction, the Supreme Court has power to pass any order. 1452-H]

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., j1955] I SCR 267, followed.

Arunachalm v. P.S.R. Sadhananthan, 11979] 2 SCC 297 and Delhi Judicial Service Association v. State of Gujarat, !19911 4 SCC 406, relied on.

2.2. However, the present appeals have not been filed under Article

136 of the Constitution, but under Section 19 of the Terrorist and Disruptive D Activities (Prevention) Act, 1987. Hence while dealing with a statutory appeal, plenary powers of the Supreme Court cannot be exercised. But even otherwise this Court has wide and residual powers to deal with the situation. like this, which are well enclosed in Article 142 uf the Constitution.

1453-BI

2.3. Power under Article 142 of the Constitution is entirely of different level and is of a different quality, which cannot be limited or restricted by provisions contained in statutory law. No-enactment made by the Central or State Legislature can limit or restrict the power of this Court under Article 142, though while exercising it the court may have regard to statutory

provisions. 1453-E] F

Delhi Judicial Service Association v. State of Gujarat, 11991] 4 SCC 405; Union Carbide Corporation '" Union of India, 11991 J 5 SCC 584; Mohammed Anis v. Union of India, 11994] Supp. I SCC 145 and E.K.

Chandarsenan v. State of Kera la, I J 9951 2 SCC 99, relied on.

2.4. This Court's powers under Article 142 of the Constitution are G

vastly broad based. That power in its exercise is circumscribed only by two conditions, first is that it can be exercised only when this Court CJtherwise exercises its jurisdiction and the other is that the order which this Court passes must be necessary for doing complete justice in the case or matter pending before it. The first condition is satisfied here as the appellate H

A jurisdiction of this Court is exercisable by virtue of Section 19 of TADA:

[453-C-D] 4

3.1. Although powers under Article 142 are not to be exercised frequen, tly but only sparingly yet the occurrenc~ described in this case is not the usual type of crimes reaching this Court. When all the four accused B were caught red handed while making nocturnal movements towards some targeted. destination, in the densely crowded city with highly lethal and quickly explosive article, it is a matter of reasonable imagination that, had they not been timely intercepted by the alert and vigilant police force, the consequences would have been disastrous and calamitous. Therefore, the sentence of imprisonment of five years for the offence under Section 5 of the C TADA in the circumstances of this case is too inadequate and it warrants enhancement. [454-E-F)

3.2. However, the maximum sentence of life imprisonment prescribed under Section 5 of TADA need not be awarded in this case since on a D consideration of all aspects of the case the said upper limit is on the higher side. The maximum sentence should be reserved for the gravest instances of offence likely to occur as a principle of commonsense. Nevertheless, after bestowing serious consideration in the matter it must be held that imprisonment for a period of at least 10 years would be necessary to meet the ends of justice looking at the manner in which the offence was perpetrated E by the four accused persons. [454-G-H; 455-A-C)

Christopher J. Emmins MA. : A Practical Approach to Sentencing, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

F 438 of 1997 Etc.

From the Judgment and Order dated 17.3.97 of the Designated Court, at Karkardooma in Delhi in R.C. No. 11-15of1993.

Ram Jethmalani, K.T.S. Tulsi, V.S. Kotwal, S.R. Chitnis, P.N. Gupta, G Ms. Lata Krishnamurthy, Anil Kumar Gupta, J. Butcher and Vikas Pawha

for the Appellants.

V.R. Reddy, Additional Solicitor General, A. Mariarputham, T.C. Shanna and P. Parmeswaran for the Respondent.

The Judgment of the Court was delivered by

4-- THOMAS, J. After concurring with the finding that first accused A Subhash Singh Thakur, second accused Jayendra. Thakur @ Bhai Thakur; third accused Shyam Kishote Garikapati and fourth accused Chandrakant Patil are guilty of the offence under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 for short 'the TADA' and confirming the conviction of that offence we felt that the sentence of rigorous imprisonment B ....- for 5 years awarded by the trial court to each of them is inadequate. Hence we issued notice to them on the proposal to enhance the sentence. The said accused, in reply to the notice, filed detailed written submission. We heard the arguments addressed by the senior counsel on behalf of those accused and also Shri V R. Reddy, Addi. Solicitor General who argued for the Central Bureau of Investigation. c

We may state at the outset that we would not, at this stage, review the finding regarding the conviction of the offence under Section 5 of TADA for the obvious reason that we c0nfirmed the finding after considering in detail the contentions raised by the accused and the elaborate arguments addressed _ _,, .. by the learned counsel. Further, we have already dismissed the petitions filed D for review of the findings arrived at by us adverse to those accused. Shri Ram Jethmalani, learned senior counsel made an endeavour to convince us that the accused have a right for re-canvassing the aforesaid finding on. a parity of the principle envisaged in Section 3 77 (3) of the Code of Criminal Procedure,

1973 (which may be referred to hereinafter as ' the present Code'). According E to the sub-section "when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accuied a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."

F '..

Under the Code of Criminal Procedure, 1898 (the old Code) High Court had the power to enhance a sentence even on an appeal filed by the accused against his conviction. Section 423 of the old Code, while circumscribing the powers of the appellate court, made an addition through sub-section (1-A) like this: G

-P> "(1-A) Where an appeal from a conviction lies to the High Court, it

.~ may enhance the. sentence, notwithstanding anything inconsistent therewith contained in clause (b) of Sub-section (1 ). "

As against the said provision, the corresponding section in the present Code contains restrictions imposed on the appellate court for enhancing the sentence H

A on an appeal filed from a conviction. The said restriction is incorporated in

Section 3 86 (b) of the present Code that in an appeal from conviction, the appellate court may reverse the finding and sentence and acquit or discharge the accused or alter the finding and maintain the sentence or with or without altering the finding alter the nature or the extent of the sentence "but not so B as to enhance the same." While incorporating the said restriction the present Code conferred a new right on the State or Central Government by Section 3 77 to present an appeal through the public Prosecutor on the ground of inadequacy of Sentence. Such appellate powers of the High Court are subject to the rider that the accused should be given a reasonable opportunity of showing cause against such enhancement and while showing such cause the C accused has the right to plead for acquittal or for reduction of sentence.

On the strength of the principle so adumbrated in the present Code learned counsel contended first that this Court has no power to enhance the

sentenc~ as the present appeal has been filed from a conviction, and second, that the accused would get a right when there is a proposal to enhance the D sentence, to plead for his acquittal by reviewing the finding already mack.

We are unable to agree with the learned counsel that the accused has a further right in this case to canvass for reviewing the finding arrived at by this Court over again. The right envisaged in Section 377(3) of the Present Code shall be confined to appeals presented by Government to the High E Court against sentence on the ground of its inadequacy. There is no scope to afford a further opportunity in the appeal, at this stage, since the finding of the trial court has already been considered elaborately by re-evaluating the entire evidence in the light of the elaborate arguments canvassed on behalf of the parties. A repetition of the whole process over again is, apart from F waste of time of this Court, unnecessary and unwarranted by law.

Shri Ram Jethmalani, learned senior counsel next contended that the f Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because the Supreme Court has no revisional powers which the High court and Court G of Sessions are conferred with by the present Code.

Powers of the Supreme Court in appeals filed under article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. When exercising appellate jurisdiction, the Supreme Court has power to pass any order. The aforesaid H legal position has been recognized by the Constitution Bench of this Court

)..

in Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., [1995] 1 SCR A 267 and later followed in a series of decisions. Vide Arunachalam v. PSR Sadhanantham & anr., [ 1979] 2 SCC 297, Delhi Judicial Service Association

v. State of Gujarat & Ors., [1991] 4 SCC 406.

The present appeals have not been filed under Article 136 of the Constitution, but under Section 19 6f TADA. Hence it was contended that B while dealing with a statutory appeal, plenary powers of the Supreme Court cannot be exercised. Accepting the said contention we may point out that even otherwise this Court has wide and residual powers to deal with the situation like this, which are well enclosed in Article 142 of the Constitution.

It is now well high settled that Supreme Court's powers under Article 142 of the Constitution are vastly broad based. That power in its exercise is circumscribed only by two conditiOns, first is that it can be exercised only .when Supreme court other wise exercises its jurisdiction and the other is that

the order which Supreme Court passes inust be necessary for doing complete justice in the cause or matter pending before it. The first condition is satiSfied D here as the appellate jurisdiction of the Supreme Court is exercisable by virtue of Section 19 of TADA.

In Delhi Judicial Service Association v. State of Gujarat (supra) as also in Union Carbide Corporation v. Union of India, [1991] 5 SCC 584, this Court made the position clear that power under Article 142 of the Constitution is E .entirely of different level and is of a different quality which cannot be limited or restricted by provisions contained in statutory law. No enactment made by the Central or State legislature can limit or restrict the power of this Court under Article 142, though while exercising it the court may have regard to statutory provisions. In Mohammed Anis v. Union of India, [1994] Suppl. 1 SCC 145, Ahmadi J. (as the learned Chief Justice then was) by following the F dictum in the above mentioned decisions has observed in paragraph 6, as follows:

'This power has been conferred on the Apex Court only and the exercise of that power is not dependent or conditioned by any statutory provision. The Constitutional plenitude of the powers of the Apex G Court is to ensure due and proper administration of justice and is intended to be co-extensive in each case with the needs of justice of a given case and to meeting any exigency. Very wide powers have been conferred on this Court for due and proper administration of justice and whenever the court sees that the demand of justice warrants H

A exercise of such powers, it will reach out to ensure that justice is done by resorting to this extraordinary power conferred to meet precisely . such a situation."

In E.K.Chandrasenan v. State of Kera/a, [1995] 2 SCC 99, this Court has traced its power in Article 142 for the purpose of enhancing the sentence B awarded to the accused who filed the appeal challenging the conviction -.:'

passed by the High Court. The following observations in the said decision are apposite:

"What is contained ; n Article 142 would in any case provide sufficient power to this Court to pass an order like the one at hand, if this Court were to be of the view that the same is necessary for doing complete justice."

Shri Ram Jethmalani, learned senior counsel, cautioned us by reminding that recourse to Article 14 2 should not be made far too often since those D powers are specifically reserved for using in exceptional exigencies. According "' to him the instances when resort was made to Article 142 by the Court'in the " past were far and few between and that too in cases of very rare eventualities.

We are aware that powers under Article 142 are not to be exercised frequently but only sparingly. The occurrence described in this case is not E the usual type of crimes reaching this Court. When all the four accused were caught red handed while making nocturnal mo\'ements towards some targeted destination in the densely crowded city with highly lethal and quickly explosive articles, it is a matter of reasonable imagination that, had they not been timely intercepted by the alert and vigilant police force, the consequences would have been disastrous and calamitous. We have no manner of doubt that F sentence of imprisonment of five years for the offence under Section 5 of the >- TADA in the circumstances of this case is too inadequate and it warrants enhancement.

The next question to be considered is, what should be the extent of the G sentence. Section 5 of TADA prescribes punishment of "imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life" besides fine. When we found that the minimum sentence prescribed is too inadequate, we have to consider whether the maximum prescribed is attracted.

H Christopher J. Emmins MA in his 'A Practical Approach to Sentencing'.

C. PATIL v. STATE [~HOMAS, J.] 455

has suggested that the maximum sentence should be reserved for the gravest A

instaces of offence likely to occur as a principle of commonsense (vide p. 110). We do not think that the maximum sentence prescribed in the section need be awarde)I in this case since on a consideration of all aspects of the case we feel that the said upper limit is on the higher side. Nevertheless, after bestowing our serious consideration in the matter we are of the definite B opinion that imprisonment for period of at least 10 years would be necessary to meet the ends of justice looking at the manner in which the offence was perpetrated by the four accused persons.

In the result, we enhance the sentence of imprisonment from 5 years as awarded by the Designated Court, to 10 years for all the for accused A-1 C Subhash Singh Thakur, A-2 Jayendra Thakur @ Bhai Thakur, A-3 Shyam Kishore Garikapati and A-4 Chandrakant Patil. Ordered accordingly.

All the appeals would stand thus disposed of.

v.s.s.

Appeals disposed of. D