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2000 DIGILAW 238 (CAL)

Ashoke Paramanick v. State of West Bengal

2000-05-10

Amit Talukdar

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Judgment Amit Talukdar, J. "Men are not hanged for stealing horses, but that horses may not be stolen" Glanville Williams in his famous Treatise 'Textbook of Criminal Law' so quoted George Savile, Marquis of Halifax to amplify the utilitarian reason for punishment either to have effect upon the offender (particular deterrent) or by serving as a warning to other prospective wrong doers so that they may not choose the Path of Crime (general deterrent). Today this Mid-Victorian concept of sentencing has undergone a drastic overhaul in the workshop of modern penalogists. From the earlier eye for an eye, tooth for a tooth paradigm the emphasis on the sentencing system is individualization which is aimed at fitting the offender rather than the offence. This concept has been developed in England in the earlier Century by Jeremy Bentham. Jeremy Bentham sought to achieve some sort of rationality in the Penal System by laying down guidelines for gradation of offence in terms of punishment. Jeremy Bentham in his classic work The Rationale of Punishment: "It ought not to be forgotten, although it has been too frequently forgotten, that the delinquent is a member of the community, as well as any other individual - as well as a party injured himself; and that there is just as much reason for consulting his interest as that of any other. His welfare is probably the welfare of the community - his suffering is the suffering of the community. It may be right that the interest of the delinquent should in part be sacrificed to that of the rest of the community; but it never can be right that it should be totally disregared. It may be prudent to hazard a great punishment for the chance of obtaining a great good. It would be absurd to hazard the same punishment where the chance is much weaker, and the advantage much less." 2. The Benthamite School of Thought greatly influenced the English Sentencing System where the sentencing process was grossly disproportionate in the 18th Century England. Death penalty was prescribed for murder and also for pick-pocketing and for horse theft to high reason. 3. The Benthamite influence percolated from the 19th Century English Penal System to many other countries and the Indian Penal Code handy work of such giants of the First Indian Law Commission appointed under the Charter Act of 1833, comprising of Mr. Death penalty was prescribed for murder and also for pick-pocketing and for horse theft to high reason. 3. The Benthamite influence percolated from the 19th Century English Penal System to many other countries and the Indian Penal Code handy work of such giants of the First Indian Law Commission appointed under the Charter Act of 1833, comprising of Mr. Macaulay (later Lord Macaulay) as the President and Macleod, Anderson and Millett as the Commissioners and subsequently revised by equally greater persons like Sir Barnesh Peacock, Sir J.W. Colwille and several others was also not immuned from such influence when it saw the light of the day in the New Year's Day of 1862. 4. If the 18th and 19th Centuries was an era of deterrence in the focal point of the Penal System, then the end of the 19th Century and the dawn of the 20th Century the reformative aspect of punishment and correctional approach was the signature tune in the New Era. 5. Colonial callousness of human dignity and gross apathy to the plight of prisoners have been long replaced in the post-independent era with a sensitised sentencing system with the theme song of correction rather than punishment and reformation rather than retribution. The choice of sentence is most crucial while a severe sentence in a petty offence becomes unwarranted and is the cynosure of the Superior Court's review yet an unduly light sentence for a grave offence is equally bad. 6. Even an ardous Schollar researching in the field of Penology with the object of punitive therapeutics and a champion of the Doctrine that award of long incarceration turns a potentially good person into a prospective crime monger after he so journs behind the long stone wall would be shocked out of his senses to read the sentence imposed by the learned Trial Magistrate in the instant case against the accused/petitioner. 7. In this revisional application the conviction and sentence of the accused/petitioner who was found guilty under section 279 and section 304A of the Indian Penal Code and sentenced him to suffer' simple imprisonment' for two months as passed by the learned Metropolitan Magistrate, 13th Court, Calcutta in connection with G.R. Case No. 2249 of 1987 on 15.11.91 has been the subject matter of challenge have been throughly scrutinised by me. I have carefully rummaged through the entire evidence and other materials from the Lower Court Records and as none appeared on behalf of either of the parties in terms of the provisions of section 403 of the Code of Criminal Procedure I proceeded to dispose of the revisional application after considering the entire evidence and other materials to see whether the conviction of the accused/petitioner could stand test of revisional scrutiny. 8. Upon careful and very meticulous consideration of the entire aspect of the matter and on reading the evidence I find the conviction recorded by the learned Trial Magistrate was absolutely in order and I see no reason to interfere with the same in view of the fact that the evidence of the witnesses unerringly point to the guilt of the accused/petitioner. More particularly the evidence of P.W.2 who was the colleague of the deceased and an eyewitness to the incident remains unimpeachable. Accordingly, the conviction of the accused/petitioner for the offence under section 304A and section 279 of the Indian Penal Code stands approved. However, I am shell-shocked in reading the sentence imposed by the learned Trial Magistrate upon the accused/petitioner as to how such a lenient and grossly inadequate and disproportionate sentence in this case where it has been borne out in evidence that the accused/petitioner had driven his vehicle in such a rash and negligent manner which caused the death of the daughter of P.W.1 who was a Development Officer of the Life Insurance Corporation of India. I am completely at a loss to appreciate the logic which weighed in the mind of the learned Trial Magistrate to award such a 'FLEA BITE' sentence as has been held by the Supreme Court in the case of State of Karnataka vs. Krishna @ Raju, as reported in AIR 1987 SC 861 . I am completely at a loss to appreciate the logic which weighed in the mind of the learned Trial Magistrate to award such a 'FLEA BITE' sentence as has been held by the Supreme Court in the case of State of Karnataka vs. Krishna @ Raju, as reported in AIR 1987 SC 861 . The Supreme Court in the said case enhanced the sentence of fine of the accused on his conviction under section 304A of Indian Penal Code and amongst other sections like 279 and 337 of the Indian Penal Code and held: "The utter disregard shown by the Magistrate to the nature of the offences, particularly the one section 304A IPC, and the sentence provided for them under the Indian Penal Code and the Motor Vehicles Act, by imposing what may be termed a 'flea-bite' sentence on the respondent, should have spurred the High Court to not only pass appropriate strictures against the Magistrate but also to set right matters by enhancing the sentence at least for the conviction under section 304A, IPC to a conscionable level in exercise of its powers under section 377, IPC". 9. Such a FLEA-BITE sentence passed by the learned Trial Magistrate in the present case cannot be justified even if it is viewed from the angle of an extreme liberalist in doctrinated with the Benthamite School and the modern correctional trends and sentencing process where reformation and not retribution is the current thinking. Then also the extreme liberalist would come to condemn the extreme insufficiency and inadequacy of the sentence awarded by the learned Trial Magistrate. 10. I find that the learned Trial Magistrate was totally oblivious of the entire aspect of the matter. A young officer of the Life Insurance Corporation of India was a casualty as a result of rash and negligent driving by the accused/petitioner which have been also found by the learned Trial Magistrate and the Prosecution Case has otherwise been proved by the evidence and other materials on record yet the learned Trial Magistrate passed such an incredulously low sentence which cannot stand to reason even if it is viewed from the Looking Glass of a protagonist who is opposed to the retributive justification of punishment. A plain reading of the concluding part of the learned Trial Magistrate's judgment is as follows: "I heard the accused on the point of sentence he keeps mum for a while then submitted that he has been falsely impleaded in this case and he has got dependents in his family. In view of considering the submission of the accused and in view of considering this age certain lenient view may be taken for awarding punishment to the accused for his said offence proper justice would be done if the accused be undergone certain substantive punishment for his said rash and negligent driving of his vehicle on the public throughfare. Hence Ordered that the accused is convicted for and sentenced to undergo two months simple imprisonment for the offence under sections 279 and 304A of IPC." 11. While it is not obligatory on the part of the learned Trial Magistrate to have heard the petitioner on the question of sentence since the offence was governed by the summons procedure yet after having so heard the accused/petitioner what prompted him to take a lenient view of the matter cannot be understood. The gravity of the offence and the death of an earning member of the family of P.W.1 who, it appears from the evidence of P.W.4, was the Development Officer of the Life Insurance Corporation of India and from the Inquest Report (Ext. 5) it shows that she had several years of service. The untimely ringing down the curtain on the life of this young officer as a result of the rash and negligent act committed by the accused/ petitioner definitely robbed the family of P.W.1 the layer of butter from their daily bread not only the family was left poorer by the absence of their daughter but also stood indigent to the tune of the earning of the victim, Mita Chowdhury who as has been discussed above was the Development Officer of the Life Insurance Corporation of India at the time of her death. Could it be justified that a lenient view be taken in such a case in the absence of any other extenuating circumstances which does not appear from the facts and materials on record? I also find no logic behind the pharase PROPER JUSTICE which weighed in the mind of the learned Trial Magistrate on the eve of awarding the substantive sentence. I also find no logic behind the pharase PROPER JUSTICE which weighed in the mind of the learned Trial Magistrate on the eve of awarding the substantive sentence. If, in this case, as, I have discussed in the foregoing paragraphs if this is the notion of PROPER JUSTICE to incarcerate the accused/petitioner to a penal term of only two months' simple imprisonment' then I am sorry to say that justice itself has been sacrificed in the Altar of Magestic Portals of the Citadel of Justice. 12. Apart from the fact that the learned Trial Magistrate awarded such a painfully low sentence which mocks the sentencing system itself. No fine was awarded which could have been directed to be paid to the next of the keen of the deceased. It seems that the learned Trial Magistrate was over-weighed that the accused/petitioner had dependents in his family, his age [which I find from the 313 examination of the accused/petitioner that he was 29 years on 15.12.91 and as such on the date of incident (24.9.87) he was 25 years of age] and passed such a sentence. 13. It is true that awarding of a sentence is an absolute discretion of the learned Trial Court but the sentence imposed by the learned Trial Magistrate in this case makes a mockery of the sentencing procedure. It was imcumbent upon the learned Trial Magistrate to appreciate that misplaced sympathy in awarding a sentence shakes the confidence of the Society in the Criminal Justice System. 14. I am tempted to refer to the Supreme Court decision in the case of Ramashraya Chakravarti vs. State of Madhya Pradesh, as reported in AIR 1976 SC 392 where P.K. Goswami, J for the Division Bench held: “To adjust the duration of imprisonment to the gravity of a particular offence is not always as easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law.” “Hegel in his 'Philosophy of Right' pithily put the difficulty as follows: Reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five dollars or four dollars ninety-three, four, etc., cents, or (iii) imprisonment of a year or three hundred and sixty-four, three, etc., days or a year and one, two, or three days. And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few.” 15. That apart the learned Trial Magistrate also after having found the accused/petitioner guilty for the offence under section 279 of the Indian Penal Code did not pass any separate sentence although the facts and circumstances and the evidence and other materials on record fully justified in passing a separate sentence on that count, further award of a 'simple imprisonment' was also not apposite. Section 53 of the Indian Penal Code specifies that imprisonment may be of two descriptions 'rigorous' that of the hard labour and 'simple'. This entails an use of judicial discretion. The learned Trial Magistrate in this case by directing the accused/petitioner to undergo simple imprisonment apart from such a low term, did not exercise his sound judicial discretion. 16. Since there was no enhancement rule issued at the time of admission of this application, I cannot sitting in revision, enhance this sentence and as such, I remand the matter to the learned Trial Court only for passing proper, commensurate and adequate sentence on the basis of the existing evidence and materials on record after giving an opportunity of hearing to all the parties keeping in mind the guidelines laid down here-in-above. 17. 17. I am conscious of the fact that the incident took place way back in 1987 and I am sending this matter after such length of time to the learned Trial Court for passing an adequate commensurate sentence notwithstanding the passage of such length of time as the grossly inadequate sentence has caused great injustice. While ringing down the curtain, I soliliquise the words of A.P. Sen, J. the speaking voice of the Division Bench of the Hon'ble Mr. Justice A.P. Sen and the Hon'ble Mr. Justice E.S. Ventataramiah in the case of Earabhadrappa @ Krishnappa vs. State of Karnataka, as reported in 1983 SCC (Cri) 447 held: “A sentence or pattern of sentence which fails to take due accounts of the gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders.” 18. Let a copy of this Order alongwith the Lower Court Records be immediately sent down to the learned Metropolitan Magistrate, 13th Court, Calcutta. Remand the matter to ld. Trial Court.