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2016 DIGILAW 367 (GUJ)

State of Gujarat v. Asharaful

2016-02-16

M.R.SHAH, MOHINDER PAL

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Addl. Sessions Judge, Court No. 3, Ahmedabad City passed in Sessions Case No. 246 of 2013 passed on 19.7.2014, the State has preferred the present appeal under Section 377 of the Criminal Procedure Code requesting to enhance the sentence imposed by the learned Trial Court, imposed while convicting the original accused for the offence under Section 489-B of the Indian Penal Code. 2. At the outset, it is required to be noted that so far as the impugned judgment and order of conviction passed by the learned Trial Court convicting the original accused for the offence under Section 489-B of the IPC is concerned, it has attained the finality as the original accused has accepted the said judgment and order of conviction and has not preferred any appeal against the order of conviction and as such it is reported that he has already undergone sentence imposed by the learned Trial Court. Under the circumstances, the only question which is required to be considered by this Court in the present appeal is, whether in the facts and circumstances of the case while convicting the original accused for the offence under Section 489-B of the IPC, the learned Trial Court is justified in imposing the sentence of 15 months of R.I. and fine of Rs. 3000/- and in default, to undergo further 3 months R.I.? 3. Shri L.B. Dabhi, learned APP appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the sentence imposed by the learned Trial Court while convicting the original accused for the offence under Section 489-B of the IPC is not adequate, sufficient and commensurate with the gravity of the offence. It is submitted that as such, while awarding the sentence, learned Trial Court has not properly appreciated the fact that the original accused was as such hailing from District: Malda, West Bengal and was as such circulating counterfeit currency note in Ahmedabad. 4. It is submitted that as such, while awarding the sentence, learned Trial Court has not properly appreciated the fact that the original accused was as such hailing from District: Malda, West Bengal and was as such circulating counterfeit currency note in Ahmedabad. 4. It is further submitted by Shri Dabhi, learned APP appearing on behalf of the State that while imposing sentence/punishment, learned Trial Court has not properly appreciated the fact that the offence under Section 489 is the offence against the society and the economy of the nation and therefore, strict view ought to have been taken by the learned Trial Court. It is further submitted by Shri Dabhi, learned APP appearing on behalf of the State that in the present case while awarding the punishment/sentence, the learned Trial Court has not exercised discretion at an initial stage. 5. Making above submissions and relying upon the recent decision of Division Bench of this Court in the case of State of Gujarat v. Sureshbhai Babubhai Chauhan made in Criminal Appeal No. 1099 of 2011, it is requested to enhance the sentence imposed by the learned Trial Court and consequently, impose the maximum punishment provided for the offence under section 489-B of the IPC. 6. Present appeal is vehemently opposed by Shri Aditya J. Pandya, learned advocate appearing for the respondent. 7. It is submitted that as such, in the present case, the sentence imposed by the learned Trial Court can be said to be adequate, sufficient and commensurate with the gravity of offence and therefore, the same is not required to be interfered by this Court. 8. It is further submitted by Shri Pandya, learned advocate appearing on behalf of the original accused that as such, the punishment provided for the offence under Section 489-B would be with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine. It is submitted that therefore there is a wide discretion conferred with the learned Trial Court to impose the sentence upto 10 years of R.I. and fine. It is submitted that therefore, while in exercise of such discretion conferred with the learned Trial Court, it has imposed the sentence of 15 months R.I., the same is not required to be interfered by this Court in exercise of the appellate jurisdiction. 9. It is submitted that therefore, while in exercise of such discretion conferred with the learned Trial Court, it has imposed the sentence of 15 months R.I., the same is not required to be interfered by this Court in exercise of the appellate jurisdiction. 9. It is further submitted that in the present case as such, only one currency note of Rs. 1000/- which was found to be counterfeit, was found from the possession of the original accused. It is submitted that therefore, in the facts and circumstances of the case, more particularly, considering the age of the accused and only one counterfeit currency note of Rs. 1000/- was found from the possession of the accused, awarding the sentence of 15 months R.I. with fine of Rs. 3000/- cannot be said to be disproportionate and/or inadequate which calls for interference of this Court. 10. Making above submissions, it is requested to dismiss the present appeal. 11. Heard learned advocates for the parties at length. 12. At the outset, it is required to be noted that the accused has been convicted for the offence under Section 489-B of the IPC and the sentence provided under the IPC for the offence under Section 489-Bwould be with imprisonment for life or with imprisonment for either description for a term which may extend to 10 years, and shall also be liable to fine. In the present case, it is required to be noted that as such by impugned judgment and order, the learned Trial Court while convicting the original accused has imposed the sentence of 15 months R.I. only. It is required to be noted that as such, at the time when the learned Judge passed the impugned judgment and order, the accused had already undergone approximately 14 months sentence. Therefore, when the learned Judge passed the impugned judgment and order only one month was required to be undergone by the accused. Therefore as such, it can be said that though not specifically passing the order of sentence already undergone, learned Judge has imposed sentence of 15 months R.I. Be that as it may, even in the facts and circumstances of the case, imposing the sentence of 15 months R.I. only for the offence under Section 489-B of the IPC, cannot be said to be adequate or sufficient or commensurate with the gravity of offence. 12.1 In the case of Dhananjoy Chatterjee v. State of W.B. reported in (1994) 2 SCC 220 in para 15, the Hon'ble Supreme Court while considering the imposition of appropriate punishment has held in para 15 as under: "....Imposition of appropriate punishment is the manner in which the courts respond to the societys cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime." 12.2 In the recent decision in the case of Shantilal Meena (supra) whatever the factors which are required to be considered by the Court while imposing of the sentence, the Hon'ble Supreme Court in para 13 to 19 and 21 and 22 has observed and held as under: 13. In Ahmed Hussein Vali Mohammed Saiyed and another v. State of Gujarat, at paragraph-99, this Court reiterated the position in the following words It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 14. In a recent decision in State of Madhya Pradesh v. Bablu, it was held as follows: 10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers. 15. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers. 15. After extensively referring to the objects of punishment in State of Punjab v. Bawa Singh, at paragraph-16, this Court held that 16...... undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence.... 16. In Mahesh s/o Ram Narain and others v. State of Madhya Pradesh, while referring to the cruel acts of the convicted accused, this Court observed that; 6. to give the lesser punishment for the appellants would be to render the justice system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. 17. In Ravi alias Ram Chandra v. State of Rajasthan, this Court held that the sentence should reflect the social conscience of society and that the sentencing process has to be stern, where it should be. 18. In Shailesh Jasvantbhai and another v. State of Gujarat and others, at paragraph-7, it was held that ....protection of society and stamping out criminal proclivity must be the object which must be achieved by imposing appropriate sentence. 19. In Hazara Singh v. Raj Kumar and others, this Court took the view that 20. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. 21. To quote Friedmann, Generally, the philosophy of deterrence still prevails in modern criminology. We continue to be concerned with preventing, by appropriate punitive sanctions, both the individual offender and other members of society from the repetition of crime, or the imitation on the part of others by similar actions. 22. 21. To quote Friedmann, Generally, the philosophy of deterrence still prevails in modern criminology. We continue to be concerned with preventing, by appropriate punitive sanctions, both the individual offender and other members of society from the repetition of crime, or the imitation on the part of others by similar actions. 22. Unless the courts award appropriately deterrent punishment taking note of the nature of the offence under the PC Act and the status of the public servant at the relevant time, people will lose faith in the justice delivery system and the very object of the legislation on prevention of corruption will be defeated. The court is the conscience of the statute and hence its judgments should project and promote the policy aims of punishment, lest it should shake the faith of common man in courts. The judgment on sentence shall not shock the common man. It should reflect the public abhorrence of the crime. The court has thus a duty to protect and promote public interest and build up public confidence in efficacy of rule of law. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity, affecting the credibility of its verdict. Thus, while awarding sentence in cases under the PC Act, the court should bear in mind the expectation of the people of its paramount duty to prevent corruption in society by providing prompt conviction and stern sentence. 12.3 In the case of Shimbhu and Another v. State of Hariyana reported in (2014) 13 SCC 318 , while considering the sentencing policy, the Hon'ble Supreme Court has observed in para 11 as under: "The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed." 12.4 In the case of State of M.P. v. Bala Alias Balaram reported in (2005) 8 SCC 1 in para 13 to 16, the Hon'ble Supreme Court has observed and held as under: "13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. 14. Even in the time of Kautilya, the need for awarding just punishment was recognized. According to Kautilya, "whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well being and pleasures of the senses." (See Kautilyan Jurisprudence by V.K. Gupta under the head 'Nature and Scope of punishment'). This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind. 15. This Court has on a number of occasions indicated that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. In Earabhadrappa v. State of Karnataka [ (1983) 2 S.C.C. 330 ] this Court observed, "A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. In Earabhadrappa v. State of Karnataka [ (1983) 2 S.C.C. 330 ] this Court observed, "A sentence or pattern of sentence which fails to take due account 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." In Rajendra Prasad v. State of Uttar Pradesh [ (1979) 3 S.C.C. 646 ] Justice Sen stated, "Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders." 16. It is not necessary to multiply authorities. In a recent decision in State of M.P. v. Munna Choubey & Another [ (2005) 2 S.C.C. 710 ], this question has again been dealt with. This Court observed: "Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system." 12.5 In the case of Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323 , the Hon'ble Supreme Court had an occasion to consider the principle of sentencing proportionality and adequacy of sentence. In the aforesaid decision while emphasizing the need for appropriate punishment in paragraph-36 the Hon'ble Supreme Court has observed and held as under:- "36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. In the aforesaid decision while emphasizing the need for appropriate punishment in paragraph-36 the Hon'ble Supreme Court has observed and held as under:- "36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial Judge." 12.6 Again in the case of Narinder Singh and others v. State of Punjab and another, (2014) 6 SCC 466 , the Hon'ble Supreme Court had an occasion to consider the sentencing policy, the purpose/jurisprudential justification of awarding sentence (deterrence, retribution or rehabilitation) vis-à-vis nature of crime. In para 14, 16 and 17 the Hon'ble Supreme Court has observed as under:-- "14. The Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. 16. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code. 19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case." 13.1 Even otherwise, while awarding suitable punishment a Presiding Officer/Judge is required to consider the object and purpose of the enactment of a particular Act and/of Statute. As observed by the Hon'ble Supreme Court in the reported in (2005) 1 SCC 237 the object of the Legislature in enacting Section 489-B of the Indian Penal Code is not only to protect the economy of the protect the economy of the country but also provide adequate protection to currency note and bank notes. 13.2 It is to be noted that the offence under Section 489B of the Indian Penal Code is an economic offence which as such is against the national economy and national interest. 13.3 In the case of State of Gujarat v. Mohanlal Jitamalji Porwal and Ors reported in (1987) 2 SCC 364 , it is observed by the Hon'ble Supreme Court that the Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The Community or the State is not a person-non-grata whose cause may be treated with disdain. It is further observed that the entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. The murder may be committed in the heat of moment upon passions being aroused. The Community or the State is not a person-non-grata whose cause may be treated with disdain. It is further observed that the entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. The murder may be committed in the heat of moment upon passions being aroused. However, an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. 13.4 In the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra reported in, AIR 1978 SC 1548 , the Hon'ble Supreme Court has criticized giving life sentence for white collar crime. In the said decision that soft sentencing justice is gross injustice where many innocents are the potential victims. 13.5 In the case reported in, (1996) 6 SCC 255 , the Hon'ble Supreme Court has observed that there shall not be any leniency in economic offence. 13.6 Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and the object and purpose of Section 489 B of the Indian Penal Code, the sentence imposed by the learned Presiding Officer/Judge cannot be said to be adequate and/or sufficient punishment commensurate with the gravity of the offence. It should be noted that such offence of fake currency are increasing and the country has faced severe economic imbalance. Notwithstanding stringent legislation having been made it has not been possible to eradicate the evil. Any leniency therefore, in economic offence will send a wrong signal. On the contrary, a massage must reach to such offenders that there shall not be any leniency shown with respect to such activities and/or offence and the same shall be dealt with Iron hand. All these aspects have not been addressed and/or considered by the learned Presiding Officer/Judge while awarding punishment/sentence to the respondent herein original accused for the offence under Section 489 B of the Indian Penal Code. All these aspects have not been addressed and/or considered by the learned Presiding Officer/Judge while awarding punishment/sentence to the respondent herein original accused for the offence under Section 489 B of the Indian Penal Code. Therefore, interference of this Court with the impugned judgment and order passed by the learned trial Court is called for and the sentence imposed by the learned trial Court is required to be interfered with and is required to be enhanced. 14. Considering the aforesaid facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and when the accused is found to be circulating counterfeit notes of Rs. 1000/- and that too at Ahmedabad though he belongs to Village: Malda, West Bengal and he had not even explained from where he got the said counterfeit note, we are of the firm opinion that sentence imposed by the learned Trial Court while convicting the original accused under Section 489-Bcannot be said to be an adequate, sufficient and commensurate with the gravity of offence. In facts and circumstances of the case, we are of the opinion that if the original accused is sentenced to undergo 5 years R.I. with fine imposed by the learned Trial Court maintain, it can be said to be just and adequate punishment commensurate with the gravity of the offence. To the aforesaid extent, the impugned judgment and order passed by the learned Trial Court is required to be modified and the present appeal is required to be partly allowed to the aforesaid extent. 15. In view of the above and for the reasons stated above, present appeal partly succeeds. The impugned judgment and order passed by the learned Addl. Sessions Judge, Court No. 3, Ahmedabad in Sessions Case No. 246 of 2013 is hereby modified to the extent imposing the sentence while convicting the respondent herein-original accused for the offence under Section 489-B of the Indian Penal Code and the respondent herein - original accused is hereby sentenced to undergo 5 years RI with fine of Rs. 5000/- and in default of payment of fine, to undergo further six months' RI for the offence under Section 489-B of the Indian Penal Code. Consequently, now, the respondent herein- original accused to surrender before the concerned jail authority to undergo the enhanced sentence. 5000/- and in default of payment of fine, to undergo further six months' RI for the offence under Section 489-B of the Indian Penal Code. Consequently, now, the respondent herein- original accused to surrender before the concerned jail authority to undergo the enhanced sentence. Time to surrender to the original accused is hereby granted upto 17.03.2016.