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2005 DIGILAW 115 (GUJ)

STATE OF GUJARAT v. NATWAR HARCHANDJI THAKOR

2005-02-22

D.N.PATEL, J.N.BHATT

body2005
JUDGEMENT Dr. J. N. Bhatt, J. :- PRELUDE (FOCAL POINT) Let us at the very outset, evidently record, remember, and recollect that :- "A civilisation is judged by the way it treats its criminals." 1. In this group of criminal appeals, specially assigned to the Larger Bench by the Hon'ble Chief Justice, the central theme, the core issue and the main point, in focus, has been, as to whether the Trial Court, on being satisfied or in presence of special and adequate reasons peculiar to the accused, to be mentioned in writing, in the judgment of the Court, on finding accused guilty, "for a first offence", either by evidence or "by raising the plea of guilty"; is competent to impose for such "first offence"; (i) a sentence of imprisonment for a term of, less than three months and fine of the less then five hundred rupees for the offence punishable under the proviso to sub-clause (i) of sub-section (1) of Section 66 of the "Bombay Prohibition Act, 1949", ("B. P. Act") ? and (ii) a sentence of imprisonment for a term of less than seven days and fine of less than rupees twenty five for the first offence punishable, in terms of proviso to sub-clause (i) to Clause (1) and Clause (3) of sub-section (1) of Section 85 of the B. P. Act, 1949 ? (iii) Whether Innovative Judicial Directions and prescription of New-Format, for recording plea of guilty of an accused, when statutory prescription of such a process or procedure has been prescribed in the Act, would be competent and legal ? STATUTORY MECHANISM :- 2. Chapter VII of the B. P. Act deals with the offences and penalties statutorily prescribed. This chapter consists of the provisions relating to the penalty for the offences committed under the B. P. Act. Section 66 provides for penalty in the case of person having committed offence in contravention of the provisions of the Act or of any Rule, Regulation or Order made or of any licence, pass, permit or authorisation issued thereunder, whereas, Section 85, B. P. Act, prescribes penalty for being drunk, for disorderly behaviour and drunk without permit or ineligible to hold permit under the B.P. Act. The relevant provisions of both the sections, firstly, need to be evaluated and examined for the purpose of interpretation and applicability, and, adjudication of the points in Focus. The relevant provisions of both the sections, firstly, need to be evaluated and examined for the purpose of interpretation and applicability, and, adjudication of the points in Focus. Therefore, let us at the outset, have the benefit of those relevant statutory provisions, which read hereasbelow :- STATUTORY PROVISIONS I. Section 66(1)(b) along with the proviso for the first offence, reads hereasunder : "66. (1) Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or any licence, permit, pass or authorization issued, thereunder- (b) consumes, uses, possesses or transports any intoxicant other than opium or hemp, (c) to (e) ****** shall, on conviction, be punished,- (i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees : (ii) to (iii) ***** II. Section 85(1) along with the proviso for the first offence reads hereasunder : "85. Section 85(1) along with the proviso for the first offence reads hereasunder : "85. (1) Whoever in any street, or through fare or public place or in any place to which the public have or are permitted to have access- (1) is drunk and incapable of taking care of himself, or (2) behave in a disorderly manner under the influence of drink, or (3) is found drunk but who is not the holder of permit granted under the provisions of this Act or is not eligible to hold a permit under Sections 40, 41, 46 or 46A shall, on conviction, be punished- (i) for an offence under Clause (1) or Clause (3), (a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than seven days and fine shall not be less than twenty five rupees; and (b) **** (ii) for an offence under Clause (2)- (a) for a first offence with imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one month and fine shall not be less than one hundred rupees; and (b) ***** (2) ***** 3. In view of the important interpretative exercise and jurisprudential exposition, sofar as, proviso to the minimum sentence in those provisions of B.P. Act is concerned, which, obviously, would have wider legal implications and far-reaching ramifications, it was thought expedient to request the learned Senior Advocate, Mr. P. M. Thakkar, to assist and enlighten the Court, as an "amicus curiae", to which, he, spontaneously, and unhesitatingly, responded and agreed to assist, and he has rendered very good and valuable assistance in this group of matters, and, therefore, we place on record our appreciation and grateful thanks to him for his useful assistance. 4. The learned Additional Public Prosecutor Mr. L. R. Pujari has, also, rendered very useful and fruitful assistance in reaching the conclusion. We, also, place on record our appreciation for his assistance. 4. The learned Additional Public Prosecutor Mr. L. R. Pujari has, also, rendered very useful and fruitful assistance in reaching the conclusion. We, also, place on record our appreciation for his assistance. PENOLOGY AND MINIMUM SENTENCE 5. In the realm of penology, the Courts are empowered and invested with higher and wider discretion. Once the conviction is established, the difficult and delicate issue of imposition of the penalty would arise requiring, the Court to consider, various aspects and variety of factors, particularly, "special to the accused", so as to reach a correct, appropriate, proportionate and just conclusion of imposition of sentence, which could be reasonable, adequate and proportionate to the category and nature of culpability and type of criminality established against each accused person. However, of late, the legislatures, State, as well as, Central, have thought it fit and expedient in their wisdom, while exercising legislative prerogatives and powers, to provide 'minimum sentence' and thereby, in the result, restricting the discretionary role and exercise of the powers, by Courts, in imposition of sentence in certain cases or certain enactments. The prescription of 'minimum sentence' is an important issue in the sentencing policy and legislative measures for penalties for offences. 6. Of course, there is a purpose and policy behind providing 'minimum sentence'. There are variety of reasons which have led to legislative prescription of minimum sentences for certain offences and in certain enactments. Again, it will be interesting to note, at this juncture, that the legislatures, while enacting and providing for minimum sentence, have made further provisions in many enactments, with the help of proviso or 'explanation' or otherwise for discretion, so that in a given fit case, on being satisfied, in presence of special and adequate reasons to be recorded in the judgment of the Court, the Court can exercise discretion vested in imposing the punishment lesser than minimum sentence. 7. Wherever and whenever a minimum sentence is prescribed by the legislature, it is incumbent upon the Court to impose minimum punishment, once the conviction is recorded. However, in certain provisions or in any certain enactments, by providing for either proviso or otherwise, the Courts are conferred powers, for special and adequate reasons to be recorded in writing, to impose less than minimum, as in case of Sections 66(1)(b) etc. However, in certain provisions or in any certain enactments, by providing for either proviso or otherwise, the Courts are conferred powers, for special and adequate reasons to be recorded in writing, to impose less than minimum, as in case of Sections 66(1)(b) etc. and 85(1) (1) and (3) of the B.P. Act, which have, also, strong nexus, sound, reason, and sufficient rationale, as the commission of the offence is the outcome of variety of socio-economic and psycho-legal reasons, and at times, there may be cases, wherein, sufficient and adequate reasons, "special and peculiar to the accused" in a given case, may be available or may be present, and on being satisfied, in this behalf, the legislatures, in its wisdom, have further invested the Courts with discretion to impose less than minimum sentence in such a given situation. Of course, 'change' and 'Revision' may be necessary upon change in socio-economic etc. reasons, as nothing could be static except 'Change'. But it will be for the appropriate jurisdictions to consider. DOCTRINE OF STATUTORY ELASTICITY :- DISCRETION 8. The basis for this is that in a proper and fit case, the Court must have more discretion having nexus and relevance with the "Doctrine of Statutory Elasticity" for power of imposing punishment or sentence than the rigidity or orthodoxy in treating all the guilty, of all the cases, upon conviction, with the same, yardstick or standard of minimum sentence, on account of there being or in presence of any special and adequate reasons, in a given case and peculiar to the each accused. Let us, also, remember and recall the provisions mandated in Sections 235(2), 248(2) and 255(2) of the Criminal Procedure Code, 1973, which were absent, hitherto, in 'Repealed-Code' of 1898. They, indubitably, radiate an imprint of the said Doctrine, as there is purpose and philosophy behind it, as articulated in 14th Report of the Law Commission of India in 1958, on Law Reform of Civil and Criminal Law and, also, 41st Report of Law Commission, on comprehensive Revision of the Code of Criminal Procedure, in 1969. 9. The proviso of both the Sections, Section 66(1) and Section 85(1) (1) and (3) of the B.P. Act, evidently, make it, unambiguous, that the Court is ordinarily under an obligation to impose a minimum punishment, once the conviction is recorded either under Section 66(1) or 85(1) (1) or (3) of the B.P. Act. 9. The proviso of both the Sections, Section 66(1) and Section 85(1) (1) and (3) of the B.P. Act, evidently, make it, unambiguous, that the Court is ordinarily under an obligation to impose a minimum punishment, once the conviction is recorded either under Section 66(1) or 85(1) (1) or (3) of the B.P. Act. Undoubtedly, the proviso, clearly, empowers, the Court to award less than the minimum punishment, if the Court, after convicting and before sentencing the accused, is of the opinion that for any special and adequate reasons to be recorded in writing in the judgment, the sentence of imprisonment for a term lesser than minimum is called for, and, then, in that case, the Court can award lesser than minimum. Once the discretion is vested in the Court to award less than minimum for any special and adequate reasons, the Court is under an obligation to record same in writing, the sentence of imprisonment or of a fine for a term lesser than minimum, in terms, of the proviso statutorily prescribed. 10. The quantum of sentence is, thus, in the discretion of the trial Court. Where the legislature has stepped in and circumscribed and fettered, partially, the discretion by directing the imposition of minimum sentence, the Court can exercise its discretion within the minimum sphere left open by the legislature. It could very well be visualised from the proviso to Section 66(1) and proviso to Section 85(1) (1) or (3) of the B.P. Act. That the State Legislature has circumscribed the discretion, requiring the Court to impose minimum sentence and left it open to award less than the minimum sentence, statutorily prescribed, for special and adequate reasons to be recorded in writing in the judgment. It leaves no manner of doubt in or minds that it is always open for the competent Court to impose lesser than minimum, for - in presence of special and adequate reasons, to the contrary to be mentioned in the judgment of the Court, which are attributable and relatable to the accused in a given factual profile of the case of each accused. 11. It cannot be interpreted that the minimum sentence, prescribed in the proviso to both the sections, would not give any option, whatsoever, to the Court or leave open any discretion to impose lesser punishment than "minimum". Although, surprisingly, unusually, it is in negative phrase or term. 11. It cannot be interpreted that the minimum sentence, prescribed in the proviso to both the sections, would not give any option, whatsoever, to the Court or leave open any discretion to impose lesser punishment than "minimum". Although, surprisingly, unusually, it is in negative phrase or term. But, while reading plainly, it is evident, that by providing in the proviso in both the sections, even in presence of special and adequate reasons to be recorded by the Court in the judgment, such an interpretation, in our opinion, would be diametrically opposite to the legislative prescription of sentence of minimum period and fine of minimum amount, and will efface and defy further discretion by vesting and empowering the Court to impose minimum sentence leaving Court to be unmindful of the mandate of statutory proviso in the said sections to award less than the statutorily prescribed for special and adequate reasons in terms of the proviso. Would it not violate the proviso and underlying legislative jurisdictional design and desideratum? Answer is positively 'yes'. 12. Two negative words, "in the absence of" and "shall not be" obviously, would mean and radiate an imprint of presence of special and adequate reasons, to the contrary to be mentioned in the judgment, peculiar to each accused, in a given case or trial. Therefore, in a given case, upon being satisfied by presence of special and adequate reasons, peculiar to the accused, the Court is empowered and invested with statutory discretion to impose lesser than minimum sentence as provided in proviso in both such sections and similar such provisions in the B.P. Act. Even for that purpose in a given case, the Court is, obviously and completely, competent, upon satisfaction of Court, to impose, sofar as, lesser sentence than minimum question is concerned, and in presence of special and adequate reasons, peculiar to the accused, even "Till Rising" and, also, any amount of fine upon satisfaction of the Court less than minimum prescribed in proviso in both the sections and other identical provisions. 13. This has been the consistent judicial adjudication policy and interpretations by host of pronouncements of single Bench of this Court to which references have been made in course of Marathon submissions and resorted to. In our opinion, it is the correct and real interpretation. 13. This has been the consistent judicial adjudication policy and interpretations by host of pronouncements of single Bench of this Court to which references have been made in course of Marathon submissions and resorted to. In our opinion, it is the correct and real interpretation. Any other view or interpretation would not, only, militate against the plain language, but, also, would violate relevant statutory provisions, policy and purity of proviso laid down by the Legislature in its domain and prerogative legislative jurisdictional and statutory wisdom and prudence. Any pronouncement or judicial adjudication contrary to such forensic and jurisprudential interpretation and statutory mechanism cannot be upheld and sustained, as it would not lay down or expound the real and correct interpretation and proposition of relevant provisions of law. Thus, such an interpretation as suggested shall, diametrically, run opposite to the provisions of proviso laid down by the Legislature, in its domain and prerogative legislative-jurisdiction. Any pronouncement of the judicial adjudication propounded in the judgments of single Bench, and relied on by the State contrary to such forensic and jurisprudential mechanism of provisions in proviso cannot be upheld and sustained, being contrary to the provisions of proviso of those Sections of B.P. Act. THE MINIMUM SENTENCE IN THE CONTEXT OF CRIMINOLOGY AND PENOLOGY. 14. A person who is an accused who has been found guilty of a Criminal Offence is liable to be sentenced by the Court. The exercise of process of sentencing is of considerable significance for the contours of criminal liability; when legislatures create a crime, they authorize not only a stigma or affixing a labour of censor, on the offender or perpetrator but, also, the imposition of the certain deprivations by means of sentence. There are many forms of sentence. The most serious sentence is custodial one, and in number of cases, custodial sentence should be imposed, where the offence is so serious that only custodial sentence can be justified in terms of relevant law. The length of any custodial sentence should in most cases be : "Commensurate with the seriousness of the offence". In deciding on the sentence in particular cases, the Court should take note and cognisance of various factors, including aggravating and mitigating the offence, and also other extenuating circumstances relevant to, in the given case. The length of any custodial sentence should in most cases be : "Commensurate with the seriousness of the offence". In deciding on the sentence in particular cases, the Court should take note and cognisance of various factors, including aggravating and mitigating the offence, and also other extenuating circumstances relevant to, in the given case. It is in this context intimate interactions between sentencing process and criminal law policy and the legislative mandate must be kept alive, on mental radar. DOCTRINE OF PROPORTIONALITY 15. In sentencing terms, one consequence of this is that there are more broad offences with high maximum sentence, giving more discretion to the Courts at the sentencing stage. No doubt criminal law itself proclaims individual responsibility for actions, maintaining strict standards of contact and setting its phase publicity against idea that social or other circumstances can excuse incriminating behaviour or conduct. Whereas, at the sentencing stage Courts do not recognize from time to time exculpatory by proceeding or surrounding circumstances. It is in this context, in criminal law in certain provisions and in certain criminal enactments statutory and judicial discretion is invested in the Courts, so that, upon exercising the sentencing process the Court can take into consideration, write upon circumstances, special and adequate reasons for each accused emanating from the record and peculiar to each accused so that idea of 'proportionality' can be considered and maintained. Whilst the notion is cruel as an underlying justification for the punishment system, the idea of proportionality ought to have been of central importance to the choice and quantum of sanction in a particular case and keeping in mind the special and adequate reasons attributable and referable peculiar to each accused. Therefore, 'proportionality' in this sense, also, finds a place in and several other views and approaches to sentence. 16. The aims of sentence are not simply part background of the criminal law; they have implications for the sake of the criminal law itself. Thus 'proportionality' should be a key factor in the structure of the criminal law. It is a major function of the criminal law not, only, to divide the criminal from the non-criminal but, also, to grade offence and to brand or label them 'proportionately'. There is a deep divergence between desert theories and deterrence on the question of culpability and excuses for causing harm or resultant injury. It is a major function of the criminal law not, only, to divide the criminal from the non-criminal but, also, to grade offence and to brand or label them 'proportionately'. There is a deep divergence between desert theories and deterrence on the question of culpability and excuses for causing harm or resultant injury. The answer to the question "Does this person deserve punishment?, sometimes differs from the answer to the question, "Would the punishment of this person deter others in similar situation?" 17. There are, also frequent references to search and research that as material appearing of criminal justice, to give some interaction of social context in which the criminal law operates. Much more coverage given to this contextual issues, such as enforcement policy, police powers, the pre-trial concession of case, and sentencing but within the confines of this, where these issues have been treated, as less important than the constitution of doctrine. It is, therefore, an exercise to recognize the constitutional responsibility of the Courts in developing the law and interpreting legislations. There is, also, an endeavor to remain alert to the implications for law enforcements of living areas of discretion when formulating laws. CHARACTERISTICS OF SENTENCING DOCTRINE 18. The guilt once established, the sentencing dilemma commences. The statutory discretion is given to the Courts in sentencing the offenders. Needless to reiterate that the determination of appropriate sentence for the convicted persons is, as important as, the adjudication of the guilt of the accused in the modern sentencing system. The importance of the modern sentencing system lies in theindividualisation of the punishment, which itself tends to rehabilitation and reformation of the offenders in the modern sentencing system in the realm of Neo-Penology and Modern Criminology. 19. Indeed, in the process of sentencing or deciding the punishment, relevant circumstance, special and adequate reasons, peculiar to each of the accused, including aggravating or mitigating factors are important. There cannot be an exhaustive list of special and adequate circumstances and reasons, peculiar to the accused, as it would depend upon variety of circumstances. Really, there is impossibility of laying down standards for special and adequate reasons, mainly, due to the fact that it would be a domain of circumstances or reasons, special and adequate, peculiar in a given fact situation in a particular case of each accused. LAND MARK - CASE LAW 20. Really, there is impossibility of laying down standards for special and adequate reasons, mainly, due to the fact that it would be a domain of circumstances or reasons, special and adequate, peculiar in a given fact situation in a particular case of each accused. LAND MARK - CASE LAW 20. Upon the pronouncement of landmark decision in "Jagmohan Singh v. State of U.P., AIR 1973 SC 947 : (1993 Cri LJ 370) and considering the recommendation made by the Law Commission of India on judicial reform and revision of Law and Procedure in Court in the Code of Criminal Procedure, 1973, there came to be incorporated for the first time, Sections 235(2) and 248(2), to ensure a great awareness on the part of the Courts to examine the case of each accused on the facts of each case more, closely, so as to determine the most appropriate sentence. This read : "Section 235(2).- ................ If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law." "Section 245(2).- ................. Where in any case, under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law. Section 360 of the Code provides for probation in certain cases, whereas, Section 325 of the Code refers to procedure when the Magistrate cannot sentence with sufficient severity or that the accused ought to receive punishment, different in time from them than which Magistrate is empowered to award, for submitting his proceedings and forward the accused to the Chief Judicial Magistrate to whom the Magistrate is subordinate. PRE-SENTENCING POLICY DESIDE-RATUM:- 21. The very benign design and object of hearing the accused before passing the sentence is to direct the Court's attention to such matters, as to emerging from factual spectrum, including the following :- i. The nature of offence. ii. The circumstances - extenuating or aggravating of the offence. iii. The prior criminal record, if any, of the offender. iv. The age of the accused and also his dependents. v. The record as to the employment. vi. ii. The circumstances - extenuating or aggravating of the offence. iii. The prior criminal record, if any, of the offender. iv. The age of the accused and also his dependents. v. The record as to the employment. vi. The background of the offender with reference to education, home-life, sobriety and social adjustment, emotional and mental condition of the offender. vii. The prospects for rehabilitation. viii. The possibility of return to normal life in the community. ix. The possibility of treatment or training of the offender. x. The possibility that the sentence may serve as a deterrent to crime to the offender or to others and the community needs, if any, for such deterrence in respect of the particular types of offences in the larger social interest and public good. xi. Anthropological reasons : a. Influence of social environment on the conduct. b. Resultant impact of the crime so as to see whether there is harm to the individual like accused or others, for keeping in mind interest and good of larger section of society. xii. Any other special and adequate reasons not covered in (i) to (xi). 22. The cumulative legislative mechanism and its effects of the provisions of Section 235(2), 248(2), 354(3), 354(4), 360 and 361 of the Code of Criminal Procedure, 1973, by and large, is that the Court is to ensure, greater seriousness and awareness in examining each case with a view to determining the most appropriate sentence or for passing other post-conviction orders. It will be interesting to refer to the observations made in the Report of the "Indian Delay Committee", as early as, in 1919-20, which are still vivid and valued even today. The Report observes : "The Criminal Courts ............. are to a great extent without reasons necessary to enable them to adjust the punishment to the offender." "................ In this country, if not in all countries, the information, which is available to the Judge at the time of trial as to the antecedents of a prisoner, his character and environment and causes which conducted to the commission of the crime, is found very inadequate." OTHER IMPORTANT CONTOURS OF MINIMUM SENTENCE 23. Indubitably, the Courts can exercise discretion while fixing the appropriate sentence where maximum punishments have been provided, but they are helpless in situations where minimum sentences are laid down. Indubitably, the Courts can exercise discretion while fixing the appropriate sentence where maximum punishments have been provided, but they are helpless in situations where minimum sentences are laid down. It is said that it creates danger to the individualisation of punishment when the law enjoins the Court to pass a fixed sentence. The danger has become all the more serious because of the increasing use of minimum punishment in recent legislations. Of course, one major reason advanced in support of minimum punishment is that such punishments are effective deterrents for curbing the crime. The Law Commission of India in its 14th Report of Judicial Administration has, clearly, adverted to this problem and has observed : "The theory that more severe the punishment the greater the deterrent effect is itself a matter of controversy. It has not been ascertained whether there has been a fall in commission of these offences where enhanced penalty has been assured by prescribing minimum sentence." Another theory advanced in favour of minimum sentence does not receive more attention. Minimum sentences have become necessary, it is said, because of the tendency on the part of the Judges to impose inadequate and inappropriate sentences. Though the Law Commission considered this argument, also, but doubted the correctness of its premises and its basis. Here, at this stage, we do not propose to divulge in meticulous analysis and evaluation of the imposition of statutory minimum sentence, whereby, denying the accused the benefit of any special equity of mitigating circumstances, which otherwise would result in a lighter sentence itself is marked of unusual severity. PROPORTIONALITY IN PUNISHMENT AND JUSTIFIABLE SENTENCES 24. The basic principle of Criminal Jurisprudence has been that the punishment that fits the crime is the appropriate punishment in proportion to the culpability of the criminal conduct and it is what the offender or the perpetrator deserves for his crime. Having once reached to the issue of culpability, the next question will follow will be of sentencing. It will be easy enough then to decide on greater or lesser punishment according to law, lesser criminality or culpability and to assign penalties on the scale that reflects relative culpability amongst the crimes, both different kinds of crime and for different instances of same kind of crime. But, yes, that is only one step in keeping the crime and punishment in proportion. But, yes, that is only one step in keeping the crime and punishment in proportion. However, the scale must itself be pitched, at a level, neither too high nor too low, for otherwise, even though punishments for different crimes might not be out of proportion to one another on the scale, the scale itself might be generally out of proportion as, uniformity, excessive or uniformly inadequate or deficient. Therefore, in theory, all criminal justice, it is evidently articulated by author, Mr. Hyman Gross that the Criminal Law adheres in general to the principle of "proportionality" in prescribing law according to the culpability of each kind of criminal conduct. 25. 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 raises by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit that crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes are, desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. It is, therefore, said that, inevitably these considerations cause a departure from just desert, as the basis of punishment and create cases of apparent injustice that are serious and wide-spread. 26. In this context, it is rightly said that when there are certain reasons why a person who is punished more generously or liberally for his crime, such punishment less than what he deserves for what he has done justifiable, and punishment in excess of what is not. It be remembered that peculiar and special conditions favouring the accused or the offender are absent and he will get away with his crime to the extent that he is punished less than he deserves to be, punishment less than he deserves is fruitless and also impose and for that reason alone it may not be justifiable, though certainly there are certain important things to be said against it, as well. 27. It is, also, required to be noted that disproportionately large sentences in excess of blameworthiness would be as unjustifiable as disproportionately small sentences. 27. It is, also, required to be noted that disproportionately large sentences in excess of blameworthiness would be as unjustifiable as disproportionately small sentences. Disproportionately small accountability is useful because it may not maintain respect for the law amongst the law abiding whereas, disproportionately large sentences would be, also, futile and useless infliction of suffering, it represents needless suffering. Therefore, with a view to keeping law efficient and effective, as a measure for the law abiding, the Court need not give those who break law no more than they deserve for breaking it, and what they deserve is measured precisely by the criminality of the conduct that violated the law. 28. The principle of mitigation like principle of proportionality, has both, the legislative and judicial applications. Descretional dispassionate can be granted by the Court appropriately in order to make sentences right with regard these and other things, after the Court has fixed the culpability. Condemnation for the crime would be no less, though it would be accomplished in a given fact situation, in many cases by less severe measures of punishment. UTILITY VERSUS DISPARITY 29. In this context, it will be useful to mention that because of mitigating considerations, standards are uncertain. Good reasons turn out to be problematic and considerations, though not be admitted at all often influence the sentencing Judge towards a more lenient sentence. The two major aspects which are exclusionary conditions for mitigating circumstances provide a foundation for suitable sentencing standards : i. Whether a proposed mitigating consideration would impair the utility of the sentences. ii. Inequitable disparity results when there is a special treatment for some that cannot be justified by principle that apply to all, and since everyone is entitled to equal standing before the law, such treatment cannot be encouraged. 30. The legislature, in one sense, has disfavoured the sentence to plummet below the minimum limit prescribed in view of the expression "shall not be less than", which is peremptory in tone. It appears, therefore, that, normally, the Court has no discretion even to award a sentence less than the said minimum. Nonetheless, the legislature was not oblivious of certain very special and adequate situational realities obtainable in a given case and peculiar to each accused in the given case and the profile of facts and circumstances of case in which the sentence is being awarded. SPECIALITY-WITH OR VERSUS-ADEQUACY OF REASONS? 31. Nonetheless, the legislature was not oblivious of certain very special and adequate situational realities obtainable in a given case and peculiar to each accused in the given case and the profile of facts and circumstances of case in which the sentence is being awarded. SPECIALITY-WITH OR VERSUS-ADEQUACY OF REASONS? 31. It will be really interesting to refer the expressionspecial and adequate reasons. It, clearly, indicates and evidently manifests that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a set of conjunction, both for enabling the Court to invoke the discretion. The reasons which are general or common in many cases also cannot be regarded as "special and adequate reasons" but such reasons should be peculiar and attributable to each accused in a case, as all the general or common reasons or grounds cannot be regarded as "special and adequate reasons". Therefore, the Court has to remain very alert and serious, and considering the overall factual profile and conspectus referable to each accused in such case, in view of the clear mandate of the proviso in a given case for admitting the case of the prescriptive periphery of the proviso and making departure from minimum sentence, by exercising discretion, the Court has an incumbency to record that there are special and adequate reasons for that and such reasons should be articulated clearly in the judgment of the Court, as statutorily prescribed. FLAGSHIP APPEAL AND OTHERS 32. In this group, in Flagship matter, Criminal Appeal No. 477 of 2002, and allied other matters, arising from various judgments and orders recorded by the learned trial Magistrate, relating to commission of various offences punishable under Sections 66(1)(b) and 85(1)(3) of the provisions of the B.P. Act read with Sections 110, 117 and 135, of the Bombay Police Act, the main grievance voiced, on behalf of the State, has been that, notwithstanding there being a minimum sentence requiring to be imposed for the first offence, the learned trial Magistrate, in this Group of Matters, has imposed sentence less than the minimum. Therefore, in short, the main contention, of the State is that the learned trial Magistrate could not have imposed sentence lesser than the minimum prescribed in view of three judgments of the single Bench. Therefore, in short, the main contention, of the State is that the learned trial Magistrate could not have imposed sentence lesser than the minimum prescribed in view of three judgments of the single Bench. To reinforce this contention, serious reliance has been placed on the following three judgments of the same learned single Judge of this Court :- i. "State of Gujarat v. Uttam Bhikhabhai Prajapati, (1990) 2 Guj LR 1244 ; (1992 Cri LJ 626)." ii. "State of Gujarat v. Thakor Somaji, 1995 (1) Guj LR 548 : (1994 Cri LJ 3458)." iii. "V. K. Bhatt, Provident Fund Inspector v. M/s. Aryodaya Ginning Mills, Ahmedabad, (1996) 2 Guj LR 38." 33. Placing strong reliance on the aforesaid three decisions of this Court, it has been, vehemently, submitted that it was not open for the learned trial Magistrates to accept the 'plea of guilty' offered by the accused-persons and award sentence lesser than the minimum prescribed. Thus, it is the submission, raised on behalf of the State, that in view of the aforesaid decisions and judgments of this Court, it was not open for the trial Magistrate to accept the 'plea of quality', as being not in judicially prescribed format in the said judgments, but, also, not open to award sentences lesser than the minimum, even for the "first offence", as it would be contrary to the said judgments until reconsidered or amendment in Law is made. Such submission is devoid of any force of Law and logic, even on a plain, if not, forensic, interpretative exposition of the proviso, which is common in both the Sections of the B.P. Act, and the reasons we propose to assign hereinafter. 34. Such submission is devoid of any force of Law and logic, even on a plain, if not, forensic, interpretative exposition of the proviso, which is common in both the Sections of the B.P. Act, and the reasons we propose to assign hereinafter. 34. The challenge in this group of Criminal Appeals and other allied matters is against the approach and the outcome in the impugned judgments rendered by the learned trial Magistrate in imposing sentence less than the minimum for the first offence while exercising the discretion vested in the Court by the proviso to Clause (i) of Section 66(1)(b) and Section 85(1)(3) and others of the B.P. Act, which may again be referred to, and it reads hereunder :- Section 66 (1) ******** (b) to (e) ********** (i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees; (ii) to (iii) ********** Whereas, the proviso to Section 85(1)(i)(a) referable to Clause (1) and (3) reads hereunder :- Section 85 (1) ********** (1) to (3) ********** (i) for an offence under Clause (1) or Clause (3), (a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than seven days and fine shall not be less than twenty five rupees; and (b) ********* Whereas, the proviso to Section 85(1)(ii)(a) referable to Clauses (2) reads hereasunder :- Section 85 (1) ********** (1) to (3) *********** (i) ************** (ii) for an offence under Clause (2)- (a) for a first offence with imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one month and fine shall not be less than one hundred rupees; and (b) *********** 35. From the plain reading and interpretation of the aforesaid proviso contained in Section 66(1)(b) to (e) and Section 85(1) (1) or (3), for the first offence, it becomes, immensely evident, and, totally, unambiguous that the said provisions permit the learned trial Magistrate to award and impose less than the minimum sentence of imprisonment, as well as, fine provided, the Court is satisfied about the presence of special and adequate reasons to the contrary to be mentioned in the judgment and which are peculiar to the accused in a given case. 36. What should constitute special and adequate reasons for the proper exercise of this discretion is obviously and indubitably by very nature of circumstances cannot be standardised. Such discretion, as employed, in the phraseology in the proviso, would depend upon the factual profile of special and adequate reasons available and present in each case. Naturally, there cannot be any die-hard recipe or fixity of circumstances or any straight-jacket formula for reaching subjective satisfaction, upon evaluation of the objective considerations of factual matrix of each accused in each case or the existence or presence of special and adequate reasons. The learned trial Magistrate is, obviously, sattutorily permitted to exercise the discretion and certain amount of latitude in such case by legislative prescription, as articulated in the special provisos. WHAT CONSTITUTES ADEQUATE AND SPECIAL REASONS 37. In this context, it would be profitable to refer to the beautiful exposition and clear proposition in this behalf propounded by the Hon'ble Apex Court in a recent decision in "State of Karnataka v. Krishnappa, AIR 2000 SC 1470 : (2000 Cri LJ 1793)". Para 11, of this judgment is very material and relevant. It has been observed by the Hon'ble Supreme Court in that para as under :- "............... Whether there exist any 'special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application." 38. Indeed, it would be impossible to conceive all the different factual situational realities, which may, in a given case, constitute special and adequate reasons for awarding less than minimum sentence with the help of proviso. No hard and fast rule can be laid down in that behalf of universal application." 38. Indeed, it would be impossible to conceive all the different factual situational realities, which may, in a given case, constitute special and adequate reasons for awarding less than minimum sentence with the help of proviso. Needless to mention, exercise of such discretion would depend upon the type and the category of objectives of legislation, the characteristic and resultant outcome of a nature of offence and such and other relevant circumstances. For example, special and adequate reasons for awarding lesser than the minimum sentence in a Prohibition Act may not even constitute special and adequate reasons for awarding lesser than the minimum sentence for offences under the Prevention of Corruption Act or Prevention of Food Adulteration Act and so on and so forth. What is important to be seriously considered in exercise of such discretion is the totality of circumstances, some of which may be individual factors peculiar and special to each accused, whereas, some of others may be the resultant ramification and impact of the nature of offence committed by the accused on society at large and chances of repetition of such offences, etc., may all go into consideration. We are attracted to refer and quote the relevant observations lucidly articulated by the Hon'ble Apex Court in "State of Jammu and Kashmir v. Vinay Nanda", (2001) 2 SCC 504 : (2001 Cri LJ 957) wherein in para-18, it has been observed (Para 15) : "............ None of the circumstances, stated in his affidavit, by itself constitute a "special reason." However, keeping in view the general conspectus of the case, we feel that under the totality of the circumstances narrated, the respondent has made to a case for invoking the proviso to sub-section (2) of Section 5 of the Act." 39. The learned single Judge of this Court in "State of Gujarat v. Uttam Bhikhabhai Prajapati (1992 Cri LJ 626) (supra)", arising from the commission of the offences punishable under Sections 65(a)(e), 66(1) and 81 of the B.P. Act, has made certain observations, which are relied on by the State, to substantiate the contention that the aforesaid provisos do not admit any discretion to award the punishment less than the minimum. This submission cannot be upheld on various counts including being divorced from text and context, colour and content and misconceived perceptions of the observations made therein. 40. Upon true and correct evaluation and analysis of the said provisions engrafted in both the provisos, such observations cannot be taken and should not be taken to have laid down the appropriate and correct legal proposition as argued, when and upon the correct interpretative evaluation, forensic and jurisprudential exposition and interpretation of proviso has been appropriately projected into direct focus. Again, any interpretation of provision, which is contrary to the interpretation and exposition of law, expounded by the Hon'ble Supreme Court in the decisions referred to hereinabove and others, which are proposed to be referred to, hereinafter, would not be in accordance with Law and obviously, therefore, cannot be sustained and approved. 41. In the light of the facts of the case, to learned single Judge of this Court in case of "State of Gujarat v. Uttam Bhikhabhai Prajapati (1992 Cri LJ 626) (supra)" did not accept the "plea of guilty" and made certain observations which, at the best ought to be confined to the facts of that case. It cannot be contended that this Court in that judgment has laid down clear proposition of law and will have universal application in all such cases. At the best, it was the decision rendered in the light of the peculiar facts noticed by the learned single Judge, upon reaching to positive conclusion of illegal "plea bargaining". Therefore, the State cannot be permitted to contend that all offences under the B.P. Act, where minimum sentence is prescribed, the learned trial Magistrate must adhere to and invariably follow said three decisions of same learned single Judge of this Court, irrespective of peculiar and special fact situation and circumstantial and contextual profiles. Truly speaking, the words, "special and adequate reasons" in the context in which they are employed would, only, mean "special and peculiar" to the accused, upon whom sentence is proposed or is being imposed. It is incumbent upon the Court to consider and evaluate objectively reasons advanced in support of each individual accused and in each case, wherein, sentence is to be awarded, so as to, reach clear and correct subjective satisfaction based on objective assessment of facts whether or not, to award less than minimum sentence, in terms of proviso. 42. It is incumbent upon the Court to consider and evaluate objectively reasons advanced in support of each individual accused and in each case, wherein, sentence is to be awarded, so as to, reach clear and correct subjective satisfaction based on objective assessment of facts whether or not, to award less than minimum sentence, in terms of proviso. 42. It is, rightly, said that word "special" has to be understood in contradiction to word "general" or "ordinary". It becomes apparent and unquestionable from the language employed in the proviso that the reasons to be recorded in writing in judgment for less than the minimum sentence, on the ground of presence of special and adequate reasons in the light of sentencing process must be special and adequate to the circumstances in a given case and peculiar to the accused in each case. It is, therefore, very clear that the discretionary jurisdiction empowered in the trial Magistrate must be based on and in presence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court for each case and each accused. 43. What is special and peculiar to the accused in one case may not be same or special and peculiar for the accused in other case. It is, therefore, true that reason should not be "general" or "ordinary", but it must be special and adequate peculiar to the each accused in a given case. The contention of the State that the trial Magistrate Courts should have taken and treated the aforesaid three judgments of this Court as a clear proposition of law that in no case less than minimum punishment could be imposed is not sustainable, as, it would lead to a situation where there is no discretion left open for the trial Magistrate to impose less than the minimum, even in presence of special and adequate reasons referable and attributable to the fact situations of the case and peculiar and pertaining to the each accused and it is also, diametrically opposite to the legislative intendment of proviso in both the section. Otherwise, provisions of proviso would be rendered otiose and nugatory. 44. Such discretion is always open for the Court, while passing through, the process of sentencing the accused for the offences under the aforesaid provisions of the B.P. Act. Otherwise, provisions of proviso would be rendered otiose and nugatory. 44. Such discretion is always open for the Court, while passing through, the process of sentencing the accused for the offences under the aforesaid provisions of the B.P. Act. The trial Court for the first offence has to award minimum sentence in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court. For the first offence, the maximum punishment is, also, prescribed, whereas, minimum sentence statutorily prescribed is required to be awarded, provided there is absence of special and adequate reasons to be mentioned in the judgment of the Court. However, if special and adequate reasons, peculiar to the facts of each accused in a given case, are not absent, in other words, are present, then the Court is obliged to consider and evaluate those reasons, peculiar to the accused for the purpose of exercising the discretion engrafted in the proviso, while undergoing the process of awarding sentence for the 'first offence', 45. We are surprised to learn from the submissions that the Courts of trial Magistrate have many times taken or have been led to, treat the aforesaid three decisions of the same learned single Judge, as if the trial Courts have no discretion to award less than minimum sentences, even, in absence of special and adequate reasons to be mentioned in the judgment of the Court, more so, when, "plea of guilty' has been raised. In fact, minimum sentence has to be awarded, only, in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, and when two negatives are employed in both the provisos, it would mean that in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the trial Court has real discretion to award less than the minimum sentence of imprisonment, as well as, fine. As such, this is the real and manifest statutory frame and purpose and object enshrined in the proviso by the legislature in its wisdom in B.P. Act.