Dilbag Singh Vs. State of Punjab
 INSC 20 (25 January 1979)
SEN, A.P. (J)
CITATION: 1979 AIR 680 1979 SCR (2)1134 1979
SCC (2) 103
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.
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
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
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.
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.
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,
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
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
"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
"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
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.