Chandrakant Patil, Shyam K. Garikapatti, Subhash Singh Thak
Vs. State Through CBI, Govt. of National Capital Territory of Dact:  INSC 45 (2 February 1998)
Mukherjee, K.T. Thomas Thomas J.
appeal no. 445 of 1997 and criminal appeal no. 447 of 1997 and criminal appeal
no. 486 of 1997
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.
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.
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').
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 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.
423 of the old Code, while circumscribing the powers of the appellate court,
made an addition through sub-section 91-A) like this:
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.
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.
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
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.
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
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.
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.
aforesaid legal position has been recognized by the Constitution Bench of this
Court in Durga Shankar Mehta vs. 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].
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.
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.
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.
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:
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
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.
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.
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
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).
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.
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.
the appeals would stand this disposed of.