STATE OF MADHYA PRADESH versus VIKRAM DAS on 8 February 2019

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STATE OF MADHYA PRADESH

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v.

VIKRAM DAS

(Criminal Appeal No. 208 of 2019)

FEBRUARY 08, 2019

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[DR. DHANANJAYA Y. CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – s.3(1)(xi) – Trial court convicted therespondent for an offence under s.3(1)(xi) and sentenced him toundergo 6 months RI with fine of Rs.500/- – Conviction was notdisputed by the respondent before the High Court and only quantumof punishment was disputed – High Court modified sentence of 6months RI to the extent of sentence already undergone, however, itenhanced the fine amount of Rs.500/- to Rs.3000/- – Appeal byState on the ground that sentence, less than minimum sentence,cannot be granted – Held: Where minimum sentence is providedfor, the Court cannot impose less than the minimum sentence – Theprovisions of Art.142 of the Constitution cannot be resorted to imposesentence less than the minimum sentence – s.3(1) of the Act providesfor a punishment for a term which shall not be less than six monthsbut which may extend to five years and with fine – Therefore, HighCourt could not have awarded sentence less than the minimumsentence contemplated by the Statute – The order passed by HighCourt is set aside – The respondent is directed to undergo theremaining sentence imposed by the trial court for offence unders.3(1)(xi) of the Act – Sentence/Sentencing – Constitution of India– Art.142.

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Narendra Champaklal Trivedi v. State of Gujarat (2012)7 SCC 80 : [2012] 6 SCR 165; State v. Ratan Lal Arora(2004) 4 SCC 590 : [2004] 1 Suppl. SCR 631; Mohd.Hashim v. State of Uttar Pradesh and Others (2017) 2SCC 198 : [2016] 9 SCR 953 – relied on G

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.208 of 2019.

From the Judgment and Order dated 08.05.2012 of the HighCourt of Madhya Pradesh at Jabalpur in Criminal Appeal No. 654 of2007.B

Vaibhav Srivastava, Dy. AG, Varun Chopra, AAG, Mrs.Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar, Ms. IndiraBhakar, Santanu Singh, Advs. for the Appellant.

Harmeet Singh Ruprah, Navjyot Singh, Anup Jain, Pranav Pathak,Advs. for the Respondent.C

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. The State is in appeal challenging theOrder dated 08.05.2012 passed by the High Court of Judicature ofMadhya Pradesh at Jabalpur, sentencing the respondent for an offenceDunder Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989[1] to the sentence already undergone,but enhancing the fine from Rs. 500/- to Rs. 3000/-.

2. The aforesaid Order of the High Court was passed in appealfiled by the respondent herein against the Order dated 12.03.2007 passedEby the trial court whereby the respondent was convicted for the offenceunder Section 3(1)(xi) of the Act and was sentenced to undergo rigorousimprisonment for six months with fine of Rs. 500/-.

3. In appeal, the High Court has recorded the statement of thecounsel for the respondent that he does not wish to press the appeal onFmerit and confines his argument to the sentence part only. It was onsuch statement; the appeal was disposed of. The relevant extract fromthe order of the High Court reads as under:- “(2) Learned counsel for the appellant, at the outset, submittedthat he does not wish to press the appeal on merit and confine hisGarguments to the sentence Part only. He has challenged onlyquantum of punishment. He has submitted that, appellant hasdeposited the fine amount of Rs. 500/- and has been undergonesentence for 11 days during the course of trial…...

(5) Accordingly, the appeal filed by the appellant is partly allowed.The order of conviction passed against the appellant is maintained.However, the sentence of six months R.I. awarded to the appellantis modified to the extent of sentence already undergone by him.His jail sentence is hereby set aside. The fine of Rs. 500/- imposedby the trial court is hereby enhanced to Rs. 3,000/- (Rs. ThreeThousand only)…….”

4. Section 3(1) of the Act provides for a punishment for a termwhich shall not be less than six months but which may extend to fiveyears and with fine. Therefore, the only question is whether the HighCourt could award sentence less than the minimum sentencecontemplated by the Statute. The relevant Section 3(1)(xi), as it existedprior to amendment by Central Act No. 1 of 2016, reads as under:- “3. Punishments for offences of atrocities.- (1) Whoever, not beinga member of a Scheduled Caste or a Scheduled Tribe, —

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(xi) assaults or uses force to any woman belonging to a ScheduledCaste or a Scheduled Tribe with intent to dishonour or outrageher modesty;

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Shall be punishable with imprisonment for a term which shall notbe less than six months but which may extend to five years andwith fine.”

5. Learned counsel for the appellant relies upon judgment of thisCourt in Narendra Champaklal Trivedi v. State of Gujarat[2] whereinan argument raised by the appellant was rejected that sentence lessthan minimum sentence can be awarded in exercise of the powersconferred under Article 142 of the Constitution. The Court held as under:- “27. The submission of the learned counsel for the appellants, ifwe correctly understand, in essence, is that the power under Article142 of the Constitution should be invoked. In this context, we mayrefer with profit to the decision of this Court in VishweshwaraiahIron & Steel Ltd. v. Abdul Gani[3] wherein it has been held thatthe constitutional powers under Article 142 of the Constitution 2 (2012) 7 SCC 80

3 (1997) 8 SCC 713

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cannot, in any way, be controlled by any statutory provision but atthe same time, these powers are not meant to be exercised whentheir exercise may come directly in conflict with what has beenexpressly provided for in any statute dealing expressly with thesubject. It was also made clear in the said decision that this Courtcannot altogether ignore the substantive provisions of a statute.

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30. In view of the aforesaid pronouncement of law, where theminimum sentence is provided, we think it would not be at allappropriate to exercise jurisdiction under Article 142 of theConstitution of India to reduce the sentence on the ground of theso-called mitigating factors as that would tantamount to supplantingstatutory mandate and further it would amount to ignoring thesubstantive statutory provision that prescribes minimum sentencefor a criminal act relating to demand and acceptance of bribe.The amount may be small but to curb and repress this kind ofproclivity the legislature has prescribed the minimum sentence. Itshould be paramountly borne in mind that corruption at any leveldoes not deserve either sympathy or leniency. In fact, reductionof the sentence would be adding a premium. The law does not socountenance and, rightly so, because corruption corrodes the spineof a nation and in the ultimate eventuality makes the economysterile.”

6. In State v. Ratan Lal Arora[4], this Court was considering thegrant of benefit of Probation of the Offenders Act, 1958[5] to a convict ofthe offences under Prevention of Corruption Act, 1988[6]. It was heldthat in cases where an enactment enacted after the Probation Actprescribes minimum sentence of imprisonment, the provisions of theProbation Act cannot be invoked. The Court held as under:-

“12. That apart, Section 7 as well as Section 13 of the Act providefor a minimum sentence of six months and one year respectivelyin addition to the maximum sentences as well as imposition offine. Section 28 further stipulates that the provisions of the Actshall be in addition to and not in derogation of any other law for 4 (2004) 4 SCC 590

5 Probation Act

6 Corruption Act

the time being in force. In the case of Supdt., CentralExcise v. Bahubali[7] while dealing with Rule 126-P(2)(ii) of theDefence of India Rules which prescribed a minimum sentenceand Section 43 of the Defence of India Act, 1962 almost similarto the purport enshrined in Section 28 of the Act in the context ofa claim for granting relief under the Probation Act, this Courtobserved that in cases where a specific enactment enacted afterthe Probation Act prescribes a minimum sentence of imprisonment,the provisions of the Probation Act cannot be invoked if the specialAct contains any provision to enforce the same without referenceto any other Act containing a provision, in derogation of the specialenactment, there is no scope for extending the benefit of theProbation Act to the accused………….”

7. In the case of Mohd. Hashim v. State of Uttar Pradesh andOthers[8], the question examined was in relation to minimum sentenceprovided for an offence under Section 4 of the Dowry Prohibition Act,1961[9], providing for minimum sentence of six months. It was held thatbenefit of the Probation Act cannot be extended where minimum sentenceis provided. The Court held as under:- “19. The learned counsel would submit that the legislature hasstipulated for imposition of sentence of imprisonment for a termwhich shall not be less than six months and the proviso only statesthat sentence can be reduced for a term of less than six monthsand, therefore, it has to be construed as minimum sentence. Thesaid submission does not impress us in view of the authoritiesin Arvind Mohan Sinha[10]and Ratan Lal Arora[11] . We mayfurther elaborate that when the legislature has prescribed minimumsentence without discretion, the same cannot be reduced by thecourts. In such cases, imposition of minimum sentence, be itimprisonment or fine, is mandatory and leaves no discretion to thecourt. However, sometimes the legislation prescribes a minimumsentence but grants discretion and the courts, for reasons to berecorded in writing, may award a lower sentence or not award asentence of imprisonment. Such discretion includes the discretion 7 (1979) 2 SCC 279

8 (2017) 2 SCC 198

9 Act of 1961

10 (1974) 4 SCC 222

11 (2004) 4 SCC 590

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Anot to send the accused to prison. Minimum sentence means asentence which must be imposed without leaving any discretionto the court. It means a quantum of punishment which cannot bereduced below the period fixed. If the sentence can be reducedto nil, then the statute does not prescribe a minimum sentence. Aprovision that gives discretion to the court not to award minimumBsentence cannot be equated with a provision which prescribesminimum sentence. The two provisions, therefore, are not identicaland have different implications, which should be recognised andaccepted for the PO Act.

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24. At this juncture, the learned counsel for the respondents wouldsubmit that no arguments on merits were advanced before theappellate court except seeking release under the PO Act. Wehave made it clear that there is no minimum sentence, and hence,the provisions of the PO Act would apply. We have also opinedDthat the court has to be guided by the provisions of the PO Actand the precedents of this Court. Regard being had to the factsand circumstances in entirety, we are also inclined to accept thesubmission of the learned counsel for the respondents that it willbe open for them to raise all points before the appellate court onmerits including seeking release under the PO Act.”E

8. In view of aforesaid judgments that where minimum sentenceis provided for, the Court cannot impose less than the minimum sentence.It is also held that provisions of Article 142 of the Constitution cannot beresorted to impose sentence less than the minimum sentence.

9. The conviction has not been disputed by the respondent beforeFthe High Court as the quantum of punishment alone was disputed. Thus,the High Court could not award sentence less than the minimum sentence contemplated by the Statute in view of the judgments referred to above.

10. Therefore, the present appeal is allowed. The order passedby the High Court is set aside. The respondent shall undergo theGremaining sentence imposed by the trial court for an offence under Section3(1)(xi) of the Act. The respondent shall surrender before the Courtwithin four weeks.

Devika GujralH