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2019 DIGILAW 1895 (JHR)

Panchu Sao v. State of Bihar

2019-11-20

DEEPAK ROSHAN

body2019
JUDGMENT : Deepak Roshan, J. 1. The instant application is directed against the judgment dated 24.08.1996, passed by the learned Additional Session Judge, Gumla in Criminal Appeal No. 166 of 1982 whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge, Gumla vide its order dated 21.07.1982 in S.T. Case No. 43 of 1981, whereby the petitioner has been convicted for the offence under Section 307 IPC and was sentenced to undergo R.I. for seven years with fine of Rs. 1,500/- and in default of payment of fine, the petitioner was directed to undergo R.I. for 1 ½ years, has been affirmed. 2. At the outset, learned Senior counsel for the petitioner draws attention of this Court to the judgment passed by the learned appellate court by submitting that the same has been passed without hearing the counsel for the appellant (petitioner herein) and as such this itself is an error committed by the court below. He further submits that even if an advocate refuses to argue for the accused, the Court must, instead of summarily dismissing the appeal, appoint an amicus curiae then proceed to dispose of the appeal. On this argument, he relied upon the judgment passed by the Hon'ble Apex Court in the case of Khaili and Others Vs. State of Uttar Pradesh reported in 1981 (Supp.) SCC 75, where the law has been laid down as under: "It appears that at the time when Criminal Appeal No. 980 of 1975 came up for hearing before a Single Judge of the Allahabad High Court, the learned Advocate appearing on behalf of the appellants stated that he had no instructions in the case and he would not, therefore, argue it. The reason why he stated that he had no instructions in the case was that he had addressed a communication to the appellants intimating to them that their appeal would be taken up for hearing on August 20, 1979 and requiring them to reach immediately with his fees and expenses for the paper book so that the appeal could be argued. This communication, though correctly addressed to the appellants, did not reach them and an endorsement was made by the postal department on the envelope to the effect that "no person of this name lives in this area--returned". This communication, though correctly addressed to the appellants, did not reach them and an endorsement was made by the postal department on the envelope to the effect that "no person of this name lives in this area--returned". Now obviously this endorsement was incorrect because the appellants did live at the address at which the communication was sent by the Advocate. But since the communication was not received by them, they could not come to Allahabad and pay the necessary fees and expenses of the Advocate. But even though the fees and expenses were not paid, the Advocate should not, in our opinion, have refused to argue the case. It must be remembered by every advocate that he owes a duty to the court, particularly in a criminal case involving the liberty of the citizen, and even if he has not been paid his fees or expenses, he must argue the case and assist the court in reaching the correct decision. We can appreciate a situation where an advocate may be unable to argue the case in the absence of instructions from the client, but non-receipt of fees and expenses can never be a ground for refusing to argue the case. The learned Advocate in the present case, however, refused to argue the case and consequently the learned Judge went through the record of the case and decided the appeal. Now one thing is clear that howsoever diligent the learned Judge might have been and however careful and anxious to protect the interests of the appellants, his effort could not take the place of an argument by an advocate appearing on behalf of the appellants. We think that in a case such as this, what the learned Judge should have done was to appoint an advocate amicus curiae and then proceed to dispose of the appeal on merits." 3. Relying upon the aforesaid judgment, he reiterates his submission that the learned appellate court has committed a gross error in deciding the appeal without hearing the counsel for the appellant or the petitioner herein. 4. Relying upon the aforesaid judgment, he reiterates his submission that the learned appellate court has committed a gross error in deciding the appeal without hearing the counsel for the appellant or the petitioner herein. 4. He further submits that the parties have entered into a compromise and interlocutory application being I.A. No. 8273 of 2017 has been filed to that effect which clearly transpires that the informant of the case died about more than 20 years back and now with the intervention of well wishers, relatives, son of the informant and the accused/petitioner has amicably settled the dispute outside the Court. The said affidavit is part of record. On the second submission, the learned senior counsel relied upon the judgment of Hon'ble Apex Court in the case Hasi Mohan Barman and Another Vs. State of Assam and Another reported (2008) 1 SCC 184 and submits that the Hon'ble Court has held that if during pendency of the case, a compromise has been arrived at then it will be in the interest of justice if the sentence is reduced to the period already undergone even if the convict is charged for an offence which is non-compoundable. In this regard, para nos. 8, 9, 10, 11 and 12 is quoted hereinbelow: "8. Section 320 of the Code of Criminal Procedure says that the offences punishable under the sections of the Penal Code (45 of 1860) specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table. A perusal of Section 320 will show that the offence under Section 313 IPC is not compoundable. Therefore, the consent given by the wife, PW 1 or the affidavit filed by her cannot be utilised for the purpose of recording a finding of acquittal in favour of the appellants-accused. 9. There are some decisions of this Court wherein the factor of compromise between the accused and the complainant (or injured or person aggrieved) has been taken into consideration for reducing the sentence. 10. The first decision on this point was rendered by this Court in Ram Pujan v. State of U.P. wherein the trial court had convicted the accused under Section 326 IPC which is a non-compoundable offence and had sentenced the accused to four years' RI. 10. The first decision on this point was rendered by this Court in Ram Pujan v. State of U.P. wherein the trial court had convicted the accused under Section 326 IPC which is a non-compoundable offence and had sentenced the accused to four years' RI. The High Court took into consideration the compromise between the appellant-accused and the injured and reduced the sentence to two years' RI. This Court, after observing that the fact of compromise can be taken into account for determining the quantum of sentence, reduced the sentence to the period already undergone which was little more than four months and further imposed a fine of Rs. 1500/- on each of the appellants. Surendra Nath Mohanty v. State of Orissa is a decision of a Bench of three learned Judges. It was observed that in view of the legislative mandate contained in Section 320 CrPC an offence can be compounded only in accordance with the provisions of the said section. The Court followed the 1 view taken in Ram Pujan and having regard to the fact that the parties had compromised and a period of ten years had elapsed from the date of the incident reduced the sentence of five years' RI imposed under Sections 307 and 326 IPC to the period of sentence already undergone which was three months and also imposed fine of Rs. 5000. 11. There are several other decisions of this Court wherein factor of compromise has been taken into consideration and the sentence has been reduced mostly to the period already undergone and they are Bankat v. State of Maharashtra, Badrilal v. State of M.P. and Jetha Ram v. State of Rajasthan 12. Following the view taken in the abovenoted cases we are of the opinion that the complainant and the principal accused having already married it will be in the interest of justice if the sentence is reduced to the period already undergone. The appeal is accordingly partly allowed. The conviction of the appellants under Section 313 IPC is maintained but the sentence is reduced to the period already undergone which appears to be about ten months. The fine imposed upon the appellants is also set aside. The appellants are on bail. Their sureties and bail bonds are discharged." 5. The appeal is accordingly partly allowed. The conviction of the appellants under Section 313 IPC is maintained but the sentence is reduced to the period already undergone which appears to be about ten months. The fine imposed upon the appellants is also set aside. The appellants are on bail. Their sureties and bail bonds are discharged." 5. Per contra, the learned APP though supports the impugned order but could not dispute the fact that the counsel of the appellant/petitioner was not heard before the learned appellate court and the matter was summarily rejected. He also submits that since the compromise has been arrived at between the parties, no fruitful purpose would be served in sending the petitioner back to prison. 6. Heard learned counsel for the parties and perused the impugned orders. From perusal of the judgment passed by the learned appellate court it is crystal clear that the case has been decided only on the basis of argument advanced by the State. As such, the instant judgment is bad in law on this score alone. Further from the interlocutory application it is evident that the son of the informant (now deceased) and the petitioner have settled their dispute outside the Court. It is true that the conviction of the petitioner is under Section 307 IPC which is admittedly non-compoundable under Section 320 of Code of Criminal Procedure which gives a detail chart, however, following the view taken in the case of Hasi Mohan Barman (supra), it will be in the interest of justice, if the sentence is reduced to the period already undergone. 7. In view of the aforesaid discussions, so far as conviction of the petitioner is concerned, no fruitful purpose would be served to interfere with the finding given by the learned trial court as such the same is confirmed. However, it is observed that the learned appellate court has committed a gross error in not appointing an advocate amicus curiae and then to proceed with the case rather proceeding with the case, without hearing the appellant-petitioner, only on the basis of argument adduced by the learned A.P.P. for the State. 8. However, it is observed that the learned appellate court has committed a gross error in not appointing an advocate amicus curiae and then to proceed with the case rather proceeding with the case, without hearing the appellant-petitioner, only on the basis of argument adduced by the learned A.P.P. for the State. 8. So far as sentence is concerned, it is apparent from record that the incident is of the year 1979 and 40 years have elapsed and the petitioner must have suffered the rigors of litigation for the last 40 years and also remained in custody for about 96 days. It is not stated that the petitioner has ever misused the privilege of bail. Further, from the supplementary affidavit it is also apparent that both the parties wishes to keep an end to the litigation. In a situation of this nature, I am of the opinion that it may not be proper for this Court to send the accused person back to prison. In this way, I find it is expedient in the interest of justice that the sentence already undergone will suffice for the ends of justice for the alleged offence. 9. Thus, the sentence passed by the Court below is, hereby, modified to the extent that the petitioner is sentenced to undergo for the period already undergone. 10. With the aforesaid observations, directions and modification in sentence only, this revision application is disposed of. 11. I.A. No. 8273 of 2017 also stands disposed of. 12. The petitioner is discharged from the liability of his bail bonds. 13. Let a copy of this order and the lower court record be sent to the concerned court forthwith.