Full Judgment Text
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PETITIONER:
SURAJ BHAN
Vs.
RESPONDENT:
OM PRAKASH AND ANR.
DATE OF JUDGMENT02/02/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
SINGH, JASWANT
CITATION:
1976 AIR 648 1976 SCR (3) 299
1976 SCC (1) 886
ACT:
Code of Criminal Procedure 1973 (Act 2 of 1974)-S. 428-
Scope of-Whether contemplates any challenge to conviction-
Procedure to invoke the section.
Practice-Interference by the Supreme Court under Art.
136 of the Constitution, when the Criminal Revision before
the High Court for enhancement of the sentence has become
infructuous, by virtue of a judgment in the Criminal Appeal
which has become final u/s 393 of Crl. P.C. 1973 (Act 2 of
1974) is not Droner.
HEADNOTE:
The respondent "OP" inflicted five stab wounds on the
appellant "S" on 19-4-1973 but the appellant survived thanks
to prompt medical attention and are immediate operation. The
trial court convicted "OP" under section 307 I.P.C. by its
judgment dated 26-2-74 and sentenced him to 10 years
rigorous imprisonment and also to a fine of Rs. 200/- The
accused "OP" filed a Criminal Appeal No. 442/74) in the
Punjab High Court on the ground that he was entitled to set
off u/s 428 of the Crl. P.C. 1973 (Act 2 of 1974), the
period of his detention as an under trial prisoner against
the period of imprisonment imposed upon him. The appellant
"S" also filed a Criminal Revision No. 606/ 74 74 in the
High Court for enhancement of the sentence against the
accused. Since there was no opposition from the State to the
plea in the criminal appeal, the High Court accepting the
appeal, reduced the sentence of the term of imprisonment to
that already undergone by him. Against the said appeal,
there was no further appeal either by the State or by "S"
and therefore the orders became final. The criminal revision
filed by "S" was however dismissed separately by the High
Court for the "reasons recorded in Criminal Appeal No.
442/74". Unable to obtain leave under Art. 134(1)(c) of the
Constitution, "S" obtained special leave after notice to the
accused "OP" and the State.
Dismissing the appeal, the Court
^
HELD: (1) It is clear from S. 428 of the Criminal
Procedure Code, 1973 (Act 2 of 1974) itself that even though
the conviction was prior to the enforcement of the code of
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criminal procedure benefit of Section 428 would be available
to such a conviction. Indeed S. 428 does not contemplate any
challenge to a conviction or a sentence. It confers a
benefit on a convict reducing his liability to undergo
imprisonment out of the sentence imposed for the period
which he had already served as an under trial prisoner.
[301H, 302A]
(2) The procedure to invoke Section 428 Criminal
Procedure Code could be a Miscellaneous application by the
accused to the court at any time while the sentence runs for
passing appropriate order reducing the term of imprisonment
which is the mandate of the section. [302A]
(3) In the instant case, in the absence of an appeal
against the judgment of the High Court in Criminal Appeal
No. 442/74 either by the State or by the injured, that
judgment has become final. The scope of criminal revision
before the High Court was whether the sentence of ten years
should be further enhanced, but that sentence itself
disappeared by virtue of the judgment of the High Court in
the Criminal Appeal. The criminal revision therefore became
infructuous and the Supreme Court can do nothing about it
while the judgment of the High Court remains operative.
1302D, E-P]
Obiter: The order of the High Court was clearly
unsustainable even in terms of section 428 Criminal
Procedure Code as the only set off which was
300
urged for under the section and which was admissible, was a
period of about nine months of pretrial detention.
[The Court disapproved of such a grossly lenient
sentence imposed by the High Court and deprecated that
the State ignored to take notice of such a grossly
lenient sentence and for not preferring an appeal to
the Court.]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
381 of 1975.
Appeal by Special Leave from the Judgment and order
dated the 10th January, 1973 of the Punjab and Haryana High
Court at Chandigharh in Criminal Revision No. 606 of 1974.
V. C. Mahajan, S. K. Mehta and K. R. Nagaraja for the
Appellant.
Ch. Ram Sarup and R. A. Gupta for Respondent No. 1
H. S. Marwah and S. P. Nayar for Respondent No. 2
The Judgment of the Court was delivered by j,
GOSWAMI, J.-On April 19, 1973, the respondent Om
Parkash (hereinafter to be described as the accused)
inflicted as many as five stab wounds on the appellant Suraj
Bhan. The injuries were very severe as will be found from
the description given below:-
"1. Incised wound 5 cm x 2 cm x oblique spindle
shape on the left side of the front of
abdomen, 8 cm below the xiphisternum and 6 cm
to the left of mid line. Depth ‘not probed
edges were fresh.
2. Incised wound 2 1/2 cm x 1 cm oblique, 6 cm
on the left and 2 cm above injury No. 1,
spindle J shaped. Edges were fresh and depth
was not probed.
3. Incised wound 2 1/2 cm x 1 cm horizontal,
spindle shaped 6 cm above the left anterior
superior iliac spine Depth was not probed and
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edges were fresh.
4. Incised wound 1 cm X 1/4 cm X 2 mm deep,
horizontal 6 cm inner to end at the level of
f left anterior superior iliac spine, edges
were fresh.
5. Penetrating wound 5 cm x 2 1/2 cm x cavity
deep, horizontal on the front of abdomen 2 cm
to the right of mid line 10 cm below the
level of xiphisternum, edges were clean cut
and fresh the coils of small intestine
protruding through the wound."
The appellant had also to under-go an operation. There is no
doubt that prompt and proper medical attention alone saved
the i‘ appellant from death.
The accused was convicted under section 307 IPC by the
trial court by its judgment dated February 26, 1974 and
sentenced to 10 years’ rigorous imprisonment and also to a
fine of Rs. 200/- in default rigorous imprisonment for one
year. Although the accused gave his
301
age as 19 years, according to the trial court he appeared to
be aged about 23 years.
The accused appealed to the High Court against his
conviction and sentence. The appeal was numbered as Criminal
Appeal No. 442 of 1974. The injured Suraj Bhan also filed a
Criminal Revision Application being numbered as 606 of 1974
for enhancement of the sentence passed on the accused. The
appeal was decided by a learned single Judge of the High
Court of Punjab and Haryana on January 10, 1975. It appears
from the judgment of the High Court in that appeal that
conviction of the accused was not challenged. The only point
that was argued was that the accused was entitled to set off
the period of his detention as an under trial prisoner
against the period of imprisonment imposed upon him under
section 428 of the Criminal Procedure Code 1973 (Act No. 2
of 1974) which came into force from April 1, 1974. It
appears also from the judgment that the State did not oppose
the aforesaid submission on behalf of the accused. The
learned single Judge, therefore, passed the order in the
following terms:-
There is force in this submission of the learned
counsel which is not opposed by the State counsel. I am
of the view that the ends of justice will be met if the
term of imprisonment of the convict-appellant is
reduced to that already undergone by him."
Having said. so the learned single Judge dismissed the
appeal maintaining the conviction and reduced the accused’s
term of imprisonment to that already undergo by him and also
maintained the sentence of fine. Including’ the pre-
conviction detention the accused served only one year and
eight months of the sentence.
It appears the State did not choose to prefer any
appeal against the grossly inadequate sentence passed by the
High Court. On the other hand the injured Suraj‘ Bhan made
an application to the High Court for a certificate of
fitness for leave to appeal to this Court under article
134(1)(c) of the Constitution without success and thereafter
obtained special leave from this Court after notice to the
respondents including the State to show cause why special
leave to appeal should not be granted.
We have described the above facts in some detail as we
fail to appreciate why the State in this case should have
ordinarily ignored to take notice of such a grossly lenient
sentence. G
The order of the High Court was clearly unsustainable
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even in terms of section 428, Criminal Procedure Code, as
the only set off which was urged for under the section and
which was admissible, was a period of about nine months
which the accused had served as an under trial prisoner
prior to the conviction.
It is also clear from section 428, Criminal Procedure
Code itself that even though the conviction was prior to the
enforcement of the Code of Criminal Procedure, benefit of
section 428 would be avail able to such a conviction. Indeed
section 428 does not contemplate any
5-L522SCI/76
302
challenge to a conviction or a sentence. It confers a
benefit on a convict reducing his liability to undergo
imprisonment out of the sentence imposed for the period
which he had already served as an under trial prisoner. The
procedure to invoke section 428, Criminal Procedure Code,
could be a miscellaneous application by the accused to the
court at any time while the sentence runs for passing an
appropriate order for reducing the term of imprisonment
which is the mandate of the section.
In the appeal before the High Court there was no scope
for the High Court to reduce the sentence only to the period
already under gone under section 428, Criminal Procedure
Code, in view of the only point argued before it.
Since in an attempt to murder hurt was caused, the
maximum punishment under second part of section 307 IPC
would be imprisonment for life. The injured was not
satisfied with the maximum punishment of ten years contained
in the first part of the section and moved the High Court in
revision for enhancement of the sentence. The revision was
separately discussed by the High Court for the "reasons
recorded in Criminal Appeal No. 442 of 1974" and it is this
order of the High Court in revision that special leave was
obtained by the appellant.
In the absence of an appeal against the judgment of the
High Court in Criminal Appeal No. 442 of 1974. either by the
State or by the injured, that Judgment has become final
which means that the accused’s sentence remains to be for a
period of one year and eight months and a fine of Rs. 200/-
in default rigorous imprisonment for one year.
The scope of the criminal revision before the High
Court was whether the sentence of ten years should be
further enhanced but that sentence itself disappeared by
virtue of the Judgment of the High Court in the criminal
appeal. The criminal revision, therefore, be came
infructuous and we can do nothing about it while the
Judgment of the High Court remains operative. Unfortunately
that judgment in the criminal appeal is not before us in
this Court. Although, therefore, we cannot approve of such a
grossly lenient sentence in the present case, we have no
other alternative than to dismiss the present appeal. The
appeal is, therefore, dismissed.
S.R. Appeal dismissed.
303