Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
CHANDRAKANT PATIL, SHYAM K. GARIKAPATTI, SUBHASH SINGH THAKU
Vs.
RESPONDENT:
STATE THROUGH CBI, GOVT. OF NATIONAL CAPITAL TERRITORY OF DE
DATE OF JUDGMENT: 02/02/1998
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO. 445 OF 1997
AND
CRIMINAL APPEAL NO. 447 OF 1997
AND
CRIMINAL APPEAL NO. 486 OF 1997
J U D G M E N T
Thomas J.
After concurring with the finding that first accused
Subhash Singh Thakur, Second accused Jayendra. Thakur @ Bhai
Thakur; third accused Shyam Kishore Garikapati and fourth
accused Chandrakant Patil are guilty of the offence under
Section 5 of the Terrorist and Disruptive Activities
(Prevention ) Act, 1987, for short ’ the TADA’, and
confirming the confirming the conviction of that offence we
felt that the sentence of rigorous imprisonment for 5 years
awarded by the trial court to each of them is inadequate.
Hence we issued notice to them on the proposal to enhance
the sentence. The said accused, in reply to the notice,
filed detailed written submission. We heard the arguments
addressed by the senior counsel on behalf of those accused
and also Shri V. R. Reddy, Addl. Solicitor General who
argued for the Central Bureau of Investigation.
We may state at the outset that we would not, at this
stage, review the finding regarding the conviction of the
offence under Section 5 of TADA for the obvious reason that
we confirmed the finding after considering in detail the
contentions raised by the accused and the elaborate
arguments addressed by the learned counsel. Further, we have
already dismissed the petitions filed for review of the
findings arrived at by us adverse to those accused. Shri Ram
Jethmalani, learned senior counsel made an endeavor to
convince us that the accused have a right for re-canvassing
the aforesaid finding on a parity of the principle envisaged
in Section referred to hereinafter as ’ the present Code’).
According to the sub-ground of its inadequacy, the High
Court shall not enhance the enhance except after giving to
the accused a reasonable opportunity of sowing cause against
such enhancement and while showing cause, the accused may
plead for his acquittal or for the reduction of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
sentence."
Under the Code of Criminal Procedure, 1898 (the old
Code) High Court had the power to enhance a sentence even on
an appeal filed by the accused against his conviction.
Section 423 of the old Code, while circumscribing the powers
of the appellate court, made an addition through sub-section
91-A) like this:
"(1-A) Where an appeal from a
conviction lies to the High Court,
it may enhance the sentence,
notwithstanding anything
inconsistent therewith contained in
clause (b) of Sub-section (1)."
As against the said provision, the corresponding
section in the present Code contains restrictions imposed on
the appellate court for enhancing the sentence on an appeal
filed from a conviction. The said restriction is
incorporated in Section 386 (b) of the present Code that in
an appeal from conviction, the appellate court may reverse
the finding and sentence and acquit or discharge the accused
or alter the finding and maintain the sentence of with or
without altering the finding alter the nature or the extent
of the sentence "but not so as to enhance the same." While
incorporating the said restriction the present Code
conferred a new right on the State or Central Government by
Section 377 to present an appeal through the public
Prosecutor on the ground of inadequacy of Sentence. Such
appellate powers of the High Court are subject to the rider
that the accused should be given a reasonable opportunity of
showing cause against such enhancement and while showing
such cause the accused has the right to plead for acquittal
or for reduction of sentence.
On the strength of the principle so adumbrated in the
present Code learned counsel contended first that this Court
has no power to enhance the sentence as the present appeal
has been filed from a conviction, and second, that the
accused would get a right when there is a proposal to
enhance the sentence, to plead for his acquittal by
reviewing the finding already made.
We are unable to agree with the learned counsel that
the accused has a further right in the case to canvass for
reviewing the finding arrived at by this Court over again.
The right envisaged in Section 377(3) of the Present Code
shall be confined to appeals presented by Government to the
High Court against sentence on the ground of its inadequacy.
There is no scope to afford a further opportunity in the
appeal, at this stage, since the finding of the trial court
has already been considered elaborately by re-evaluating the
entire evidence in the light of the elaborate arguments
canvassed on behalf of the parties. A repetition of the
whole process over again is, apart from waste of time of
this Court, unnecessary and unwarranted by law.
Shri Ram Jethmalani, learned senior next contended that
the Supreme Court has no power to enhance sentence in the
absence of an appeal by the Government presented
specifically for that purpose more so because the Supreme
Court has no revisional powers which the High court and
Court of Sessions are conferred with by the present Code.
Powers of the Supreme Court in appeals filed under
article 136 of the Constitution are not restricted by the
appellate provisions enumerated under the Code of Criminal
Procedure or any other statue. When exercising appellate
jurisdiction, the Supreme Court has power to pass any order.
The aforesaid legal position has been recognized by the
Constitution Bench of this Court in Durga Shankar Mehta vs.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
Thakur Raghuraj Singh and ors., 1995 (1) SCR 267 and later
followed in a series of decisions. [vide Arunachalam vs. PSR
Sadhanantham & anr., 1979 (2) SCC 297, Delhi Judicial
Service Association vs. State of Gujarat & Ors., 1991 (4)
SCC 406].
The present appeals have not been filed under Article
136 of the Constitution, but under Section 19 of TADA. Hence
it was contended that while dealing with a statutory appeal,
plenary powers of the Supreme Court cannot be exercised.
Accepting the said contention we may point out that even
otherwise this Court has wide and residual powers to deal
with the situation like this, which are well enclosed in
Article 142 of the Constitution.
It is now well nigh settled that Supreme Court’s powers
under Article 142 of the Constitution are vastly broad
based. That power in its exercise is circumscribed only by
two conditions, first is that it can be exercised only when
Supreme court other wise exercises its jurisdiction and the
other is that the order which Supreme Court passes must be
necessary for doing complete justice in the cause or matter
pending before it. the first condition is satisfied here as
the appellate jurisdiction of the Supreme Court is
exercisable by virtue of Section 19 of TADA.
In Delhi Judicial Service Association vs. State of
Gujarat (supra) as also in Union Carbide Corporation vs.
Union of India, 1991 (5) SCC 584, this Court made the
position clear that power under Article 142 of the
Constitution is entirely of different level and is of a
different quality which cannot be limited or restricted by
provisions contained in statutory law. No enactment made by
the Central or State legislature can limit or restrict the
power of this Court under Article 142, though while
exercising it the court may have regard to statutory
provisions. In Mohammed Anis vs. Union of India, 1994
Supple. (1) Scc 145, Ahmadi ]. (es the learned Chief Justice
then was ) by following the dictum in the above mentioned
decisions has observed in paragraph 6, as follows:
"This power has been conferred on
the Apex Court only and the
exercise of that power is not
dependent or conditioned by any
statutory provision. The
Constitutional plenitude of the
powers of the Apex Court is to
ensure due and proper
administration of justice and is
intended to be co-extensive in each
case with the need of justice of a
given case and to meeting any
exigency. Very wide powers have
been conferred on this Court for
due and proper administration of
justice and whenever the court sees
that the demand of justice warrants
exercise of such powers, it will
reach out to ensure that justice is
done by resorting to this
extraordinary power conferred to
meet precisely such a situation."
In E.K. Chandrasenan vs. State of Kerala 1995 (2) SCC
99, this Court has traced its power in Article 142 for the
purpose of enhancing the sentence awarded to the accused who
filed the appeal challenging the conviction passed by the
High Court. The following observations in the said decision
are apposite:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
"What is contained in Article 142
would in any case provide
sufficient power to this Court to
pass an order like the one at hand,
if this Court were to be of the
view that the same is necessary for
doing complete justice."
Shri Ram Jethmalani, learned senior counsel, cautioned
us by reminding that recourse to Article 142 should not be
made for too often since those powers are specifically
reserved for using in exceptional exigencies. According to
him the instances when resort was made to Article 142 by the
Court in the past were far and few between and that too in
cases of very rare eventualities.
We are aware that powers under Article 142 are not to
be exercised frequently but only sparingly. The occurrence
described in this case is not the usual type of crimes
reaching this Court. When all the four accused were caught
red handed while making nocturnal movements towards some
targeted destination in the densely crowded city with highly
lethal and quickly explosive articles, it is a matter of
reasonable imagination that, had they not been timely
intercepted by the alert and vigilant police force, the
consequences would have been disastrous and calamitous. We
have no manner of doubt that sentence of imprisonment of
five years for the offence under Section 5 of the TADA in
the circumstances of this case is too inadequate and it
warrants enhancement.
The next question to be considered is, what should be
the extent of the sentence. Section 5 of TADA prescribes
punishment of "imprisonment for a term which shall not be
less than five years, but which may extend to imprisonment
for life" besides fine. When we found that the minimum
sentence prescribed is too inadequate, we have to consider
whether the maximum prescribed is attracted.
Christopher J. Emmins MA in his ’A Practical Approach
to Sentencing’. has suggested that the maximum sentence
should be reserved for the gravest instances of offence
likely to occur as a principle of commonsense (vide p. 110).
We do not think that the maximum sentence prescribed in the
section need be awarded in this case since on a
consideration of all aspects of the case we feel that the
said upper limit is on the higher side. Nevertheless, after
be sowing our serious consideration in the matter we are of
the definite opinion that imprisonment for period of at
least 10 years would be necessary to meet the ends of
justice looking at the manner in which the offence was
perpetrated by the four accused persons.
In the result, we enhance the sentence of imprisonment
from 5 years as awarded by the Designated Court, to 10 years
for all the for accused A- 1 Subhash Singh Thakur, A- 2
Jayendra Thakur @ Bhai Thakur, A- 3 Shyam Kishore
Garikapati, and Chandrakant Patil. Ordered accordingly.
All the appeals would stand this disposed of.