PETITIONER:
DILBAG SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT25/01/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1979 AIR 680 1979 SCR (2)1134
1979 SCC (2) 103
ACT:
Sentence-Sentencing power under Section 248(2) and s.
235(2) of the Criminal Procedure Code, 1973 (Act II of
1974)-Need for non-institution alised sentencing and value
of pre-sentencing investigation reports while exercising the
right to sentence-Guidelines to be laid down-Purpose of s.
360 of Criminal Procedure Code highlighted.
HEADNOTE:
In the case of a trial before a court of session, under
s. 235(2) Criminal Procedure Code "if the accused is
convicted, the Judge shall, unless he proceeds in accordance
with the provisions of s. 360, hear the accused on the
question of sentence, and then pass sentence on him
according to law." Similarly, in the case of trial of
warrant cases by Magistrates, under s. 248 (2) of the Code,
"where the Magistrate finds the accused guilty, but does not
proceed in accordance with the provisions of s. 325 or s.
360, he shall after hearing the accused on the question of
sentence, pass sentence upon him according to law."
Section 361 of the Code mandates that "where in any
case, the court could have dealt with:-
(a) an accused person under s. 360 or under the
provisions of the Probation of Offenders' Act, 1958 (Act XX
of 1958) or;
(b) a youthful offender under the Children Act, 1960
(Act LX of 1960) or any other law for the time being in
force for the treatment, training or rehabilitation of
youthful offenders, but has not done so, it shall record in
its judgment, the special reasons for not having done so."
Thus, under the Criminal Procedure Code, 1973, recourse to
the provisions of s. 360 is a must.
In a trial against four persons charged by the Police
with offences under ss. 302, 324, 323 IPC, including
constructive liability under s. 34, two were, acquitted by
the trial court and two were convicted. The appellant was
sentenced to rigorous imprisonment for one year and a fine
of Rs. 200/- for causing simple injury to one Arjan Singh.
He was held vicariously guilty under ss. 324/34 IPC and
awarded two years rigorous imprisonment and a fine of Rs.
1000/-. In addition he was convicted under s. 323 IPC, for
causing hurt to the daughter of the deceased and on this
count punished with R.I. for one year together with a fine
of Rs. 200/-.
Releasing the appellant on probation, the Court
^
HELD: 1. Enacted law is guilty of inaction; because its
obscure presence on the statute book escapes the vigilance
of the Bar. Where even the Court ignores what is vital to
the little man the guarantee of sentencing legality becomes
a casualty. [1135H, 1136A]
1135
2. To jail an accused is mechanical farewell to the
finer sentencing sensitivity of the Judge of salvaging a
redeemable man by non-institutionalised treatment. If the
judge has before him a complete and accurate pre-sentence
investigation report which sets forth the conditions,
circumstances, background, and surrounding of the accused
and the circumstances underlying the offence which has been
committed, the judge could then impose sentence with greater
assurance that he has adopted the proper course. The purpose
of s. 360 of the Code is precisely this and the goal of s.
235(2) is just this. [1138H, 1140B-C]
3. Sentencing legality is violated when the judge
shirks. And the Bar is often alien to correctional
alternatives and concentrates its ammunition on culpability
and extenuatory scaling down of imprisonment. [1189F]
4. Calling pre-sentence investigation reports, bestowal
of intelligent care on the choice between institutional and
non-institutional disposition like probation, conditional
release and such community methods must form part of
innovative sentences. But this should be based on careful
study of the convict and his potentiality for reform; not
guess-work, nor insensitive assessments. [1137B-E]
Williams v. New York, 337 U.S. 241, 249; quoted with
approval.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
313 of 1978.
Appeal by Special Leave from the Judgment and Order
dated 22-3-78 of the Punjab and Haryana High Court in
Criminal Appeal No. 189/75.
A. S. Sohal and S. K. Jain for the Appellant.
Hardev Singh for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. Every litigative appeal has a docket
number but beneath the paper lurks a human factor, often
forgotten in the forensic pugilists but now and then brought
to the fore, as in this criminal appeal limited to the issue
of appropriate sentence.
Surely, ‘the law must keep its promises.’ Justice
Holmes expressed the obvious when he said this, but the
breach of promise by the law on delivering criminal justice
is daily experience, from police arrest to prison trauma.
The focus in this case is on the sentencing alternatives in
the Criminal Procedure Code; and the grievance pressed by
counsel, when traditional grounds on the merits failed, was
that the compassion of s. 360 professionally suffering
benign neglect, be kindled and he be released. Enacted law
is guilty of inaction, because its obscure presence on the
statute book escapes the vigilance of the Bar. Where even
the court ignores what is vital to the little man the
guarantee of
1136
sentencing legality becomes a casualty. This case is an
instance in point.
Now the brief story which enlivens the ‘sentencing’
submissions. Four villagers of rural Punjab, of whom the
appellant is one, set upon Arjan Singh, a small official,
while on his way back home. The sound and fury of the attack
with sticks brought out the ill-starred, innocent Srimati
Rakhi, Arjan Singh’s brother’s wife. Her daughter too came
to the spot attracted by the fracas. Arjan Singh received
blows, being the angry target of the assailants. But poor
Rakhi, who came in accidentally, was hit on the head with a
takua by Jagir Singh, one of the accused. She eventually
died; and her daughter and Arjan Singh were hurt by the
beating.
Four persons were charged by the police with offences
under s. 302, 324 and 323 I.P.C. including constructive
liability under s. 34. Two of them were acquitted by the
trial court and the other two were convicted but appealed to
the High Court. The man who dealt the fatal cut was Jagir
Singh. His conviction under s. 302 I.P.C. and award of life
imprisonment by the Sessions Court was converted into one
under s. 304 Part 1, I.P.C. with a consequential reduction
of sentence to seven years’ rigorous imprisonment. His
conviction on certain other counts was maintained but we are
not concerned with him at all, since the appellant in this
Court is the other accused Dilbag Singh. His role was lesser
and related to causing simple injury to Arjan Singh for
which he was sentenced to rigorous imprisonment for one year
and a fine of Rs. 200/-. He was held vicariously guilty
under ss. 324/34 I.P.C. and awarded two years’ rigorous
imprisonment and a fine of Rs. 1000/-. In addition he was
convicted under s. 323 I.P.C. for causing hurt to the
daughter of the deceased and on this count punished with
R.I. for one year together with a fine of Rs. 200/-.
Having declined leave on the question of guilt, we
confine our attention to the contentions on the sentence. We
proceed on the footing of the facts found and ask ourselves
whether any basic flaw in sentencing technology affords
appellate intervention and re-designing of reformatory
treatment in the conspectus of circumstances present in the
case.
The courts in our country consult the punitive tariffs
prescribed in the Penal Code, consult the prison period
awarded in practice for such offences and with marginal
variations mechanise the process. Judged by that test,
conviction under s. 324 I.P.C. read with s. 34 plus
substantive guilt under s. 323 I.P.C. is visited with two
years for the former and one year R.I. especially when the
incident has ended in death. But penal humanitarianism,
strategies of non-institutional rehabilitation and
1137
a complex of other considerations in making an offender a
non-offender have revolutionized the judicial repertory in
re-socializing the criminal. The sentence hearing for which
the Criminal Procedure Code, 1973 provides in s. 248(2) and
s. 235(2) has hardly received the serious concern of the
Courts despite the International Probation Year and
therapeutic accent in penological literature. ‘If the
criminal law as a whole is the Cinderella of jurisprudence,
then the law of sentencing is Cinderella’s illegitimate
baby’. Pre-sentence investigation reports, bestowal of
intelligent care on the choice between institutional and non
institutional disposition and habitual neglect of new
avenues open to the court have constrained us to grant leave
in the case so that guidelines may be laid down and
probation and community-oriented methods lying in the legal
limbs may be re-activated. Our prisons are overcrowded, our
prisoners are subjected to iatrogenic incarceration, our
penal drills are self-defeatingly callous to correctional
measures and our jail budgets bulge without countervailing
community benefits because the Bench and the Bar have
dismissed as below judicial visibility such patterns as
probation, conditional release. The time has come for Courts
to abandon the Monroe Doctrine towards penology and concern
itself with innovative sentences.
But this involves careful study of the convict and his
potentiality for reform, not guess-work nor insensitive
assessments. Therefore, we directed, right at the start, the
Chief Probation Officer, Punjab, to make a report to this
Court “as to the social circumstances and other relevant
factors bearing on the consideration of eligibility of the
petitioner to probation.” That report has been received and
its contents indicate competent advertence to pertinent
criteria which we may briefly sum up.
The appellant is 32 years old. His behavioral attitude
is stated to be “obedient and law-respecting in nature”. The
officer goes on to state that the prisoner’s character is
fairly good, that he is upright, alert and interested in
rural games. Of course, he seems to be wrestler of the
locality which is good if it is practised as a game but
dangerous if he exercises his muscles on other people’s
flesh. More importantly are the social influences that bear
upon restraint and good behaviour. He is a petty farmer who
left school in his teens, has ten acres of land belonging to
the joint family of himself and five brothers and the
mother. Being a cultivator and living in the joint family
circumstances the officer finds no adverse remarks against
him in the locality. On the other hand, the report refers to
his great respect for the former Sarpanch of the village.
His family circumstances evoke commiseration because his
father is dead having been murdered in 1960. His mother is
alive
1138
and has to be maintained by himself and his two brothers who
are truck drivers and the third a jawan. He has his own
nuclear family to maintain with a young wife and four
children. A pitiable factor is that his elder daughter is
paralytic from birth. His social position shows that he
belongs to a lower middle class family, lives by
agriculture, loves his mother and brothers and has earned
the good-will of his neighbours who think that the
occurrence was induced by an irritating land issue and
temporary intoxication. A Sense of remorse has overcome him
according to the Probation Officer who says that he is a
first offender and not a recidivist. It is a painful fact,
as noted in the report that this criminal case has cost him
a tidy sum, loss of prestige and even family separation.
In the unrefined English of the Probation Officer we
may summarise his assessment of the offender:
“It was met of an accident as offender-client
Dilbagh Singh seems to be law abiding and God fearing.
His one weakness is wine and that is the route cause of
the present diviation, otherwise on the whole
offender’s behaviour is normal and adjustable. The
offender is in curable stage as crime has not gone deep
into him. He can be adjustable amicably within his
normal and natural environmental factors. The client
can easily be reformed as he is neither professional
criminal nor exhibits any tendency to future
deviation.”
The social milieu, the domestic responsibilities, the
respect for the former Sarpanch he shows, the general
goodwill he commands are plus points. The tragic fact of his
father’s murder and the running misfortune of his young
daughter’s paralysed limbs are sour facets of his life. The
circumstance that he is gainfully employed as agriculturist
and his brothers, though in diverse occupations, remain
joint family members, are hopeful factors. The aggressive
episode which led to his conviction was induced by the
company of his cousin who serves a seven year sentence and
the inebriation due to drinking habit. This simple villager
responsible and gentle, sad and burdened, repentant and
drained of his little wealth by the criminal case, has a
long way to go in life being in his early thirtys. The
drinks vice was the minus point. Many a peaceable person, on
slight irritation, suffers bellicose switch-over under
alcoholic consumption.
How does judicial discretion operate in this skew of
circumstances? To jail him is mechanical farewell to the
finer sentencing sensitivity of the judge of salvaging a
redeemable man by non-institutionalised treatment. The human
consequences of the confinement process here will
1139
be no good to society and much injury to the miserable
family and, above all, hardening a young man into bad
behaviour, with prestige punctured, family injured, and
society ill-served. Nor was the crime such, so far as his
part was involved, as to deserve long deterrent
incarceration. Our prison system, until humane and
purposeful reforms pervades, surely injures, never improves.
Prison justice has promises to keep, and ethological changes
geared to curative goals are still alien-from dress and bed,
refusal of frequent parole and insistence of mechanical
chores, bonded labour, nocturnal tensions, and no scheme to
reform and many traditions to repress-such is the zoological
institutional realism and rehabilitative bankruptcy which
inflict social and financial costs upon the State.(1) It is
wasted sadism to lug this man into counter-productive
imprisonment for one year.
Long years ago, Franklin D. Roosevelt, in a forward-
looking speech on John Day, said:
“If the criminal’s past history gives good reason
to believe that he is not of the naturally criminal
type, that he is capable of real reform and of becoming
a useful citizen, there is no doubt that probation,
viewed from the selfish standpoint of protection to
society alone, is the most efficient method that we
have. And yet it is the least understood, the least
developed, the least appreciated of all our efforts to
rid society of the criminal.”(2)
The appellant has served a substantial part of his
sentence in jail because of judicial innocence of the normae
in the area of non-institutional disposition. It is easy to
imprison, hard to individualise punishment. Sentencing
legality is violated when the judge shirks. And the Bar is
often alien to correctional alternatives and concentrates
its ammunition on culpability and extenuatory scaling down
of imprisonment.
The observations of the United States Supreme Court in
Williams v. New York (337 U.S. 241, 249) lay the right
stress on pre-sentence reports:
“have been given a high value by conscientious
judges who want to sentence persons on the best
available information rather than on guess-work and
inadequate infor-
1140
mation. To deprive sentencing judges of this kind of
information would undermine modern penological
procedural policies that have been cautiously adopted
throughout the nation after careful consideration and
experimentation.”
Judge F. Rayan Duffy has written:
“If the judge has before him a complete and
accurate pre-sentence investigation report which sets
forth the conditions, circumstances, background, and
surroundings of the defendant, and the circumstances
underlying the offense which has been committed, the
judge can then impose sentence with greater assurance
that he has adopted the proper course. He can do so
with much greater peace of mind.”(1)
The purpose of s. 360 of the Code is precisely this;
the goal of s. 235(2) is just this. And yet, the exacting
art is more honoured in the breach than in the observance if
we many wrongly use a Shakespearean passage to drive home
our point. We stress the legal position so that subordinate
courts may not treat conviction as the terminal point but
the end of one chapter. We are mindful of the complexity and
remove the impression that easy resort to s. 360 is right.
No; it is wrong. Two quotes set the record straight.
“Imprisonment is the appropriate sentence when the
offender must be isolated from the community in order
to protect society or if he can learn to readjust his
attitudes and patterns of behaviour only in a closely
controlled environment.”(2)
“The consequences of a sentence are of the highest
order. If too short or of the wrong type, it can
deprive the law of its effectiveness and result in the
premature release of a dangerous criminal. If too
severe or improperly conceived, it can reinforce the
criminal tendencies of the defendant and lead to a new
offence by one who otherwise might not have offended so
seriously again.
The decision which is presented at sentencing is
also enormously complex. It properly is concerned, and
often predominantly, with the future which can be
predicted for the particular offender. But any single-
valued approach to sentencing is misdirected. A
sentence which is not in some
1141
fashion limited in accordance with the particular
offence can lead to a system of incomparable brutality.
Per contra, a sentence or pattern of sentence which
fails to take due account of the gravity of the offence
can seriously undermine respect for law.”(1)
In this case, after perusal of the report of the
Probation Officer, counsel for the State, Sri Hardev Singh,
with fair candour and shared correctness, consented to a
release of the prisoner under S. 360. We agree. But one fact
needs emphasis. The close nexus between violence and alcohol
is a call to the State in every criminal investigation to
identify the role of alcohol in the commission of the
offence and in every prisoner’s treatment to provide for
anti-alcoholic therapy. To fail here is vicarious guilt of
the State to Society. We direct release of the appellant
forthwith. He will enter into a bond before the trial court
together with Shri Dilbag Singh S/o Babu Singh as surety in
the amount of Rs. 1000/- within two weeks of his release to
keep the peace, be of good behaviour, to abjure alcohol and
not to commit offence for a period of three years and to
appear and receive sentence, if called upon in the meantime.
The appeal is allowed with this direction which is the
Q.E.D. of sentencing justice.
V.D.K. Appeal allowed.
1142