State of M.P. Vs. Bala @
Balaram [2005] Insc 528 (3 October 2005)
P.K. Balasubramanyan
(Arising out of Special Leave Petition (Crl.) No./2005) (Crl. M.P. No. 6542) P.K.
Balasubramanyan, J.
I respectfully agree. My excuse for adding these few words is the perception
that the awarding of inadequate punishments by courts is becoming disturbingly
frequent.
2. The crime here is rape. It is a particularly heinous crime, a crime
against society, a crime against human dignity, one that reduces a man to an
animal. The penal statute has prescribed a maximum and a minimum punishment for
an offence under Section 376 I.P.C. To view such an offence once it is proved,
lightly, is itself an affront to society.
Though the award of maximum punishment may depend on the circumstances of
the case, the award of the minimum punishment, generally, is imperative. The
provisos to Section 376(1) and 376(2) I.P.C. give the power to the court to
award a sentence lesser than the minimum for adequate and special reasons. The
power under the proviso is not to be used indiscriminately or routinely. It is
to be used sparingly and only in cases where special facts and circumstances
justify a reduction. The reasons must be relevant to the exercise of such
discretion vested in the court. The reasons must be set out clearly and
cogently. The mere existence of a discretion by itself does not justify its
exercise. The long pendency of the criminal trial or the offer of the rapist to
marry the victim are not relevant reasons. Nor is the age of the offender by
itself an adequate reason.
3. The punishments prescribed by the Penal Code reflect the legislative
recognition of the social needs, the gravity of the concerned offence, its
impact on the society and what the legislature considers as a punishment
suitable for the particular offence. It is necessary for the courts to imbibe
that legislative wisdom and to respect it.
4. The rationale for advocating the award of a punishment commensurate with
the gravity of the offence and its impact on society, is to ensure that a
civilized society does not revert to the days of 'an eye for an eye and a tooth
for a tooth'. Not awarding a just punishment might provoke the victim or its
relatives to retaliate in kind and that is what exactly is sought to be prevented
by the criminal justice system we have adopted.
5. Even in the time of Kautilya, the need for awarding just punishment was
recognized. According to Kautilya, "whoever imposes severe punishment
becomes repulsive to people, while he who awards mild punishment becomes
contemptible. The ruler just with the rod is honoured. When deserved punishment
is given, it endows the subjects with spiritual good, material well being and
pleasures of the senses." (See Kautilyan Jurisprudence by V.K. Gupta under
the head 'Nature and Scope of punishment'). This philosophy is woven into our
statute and our jurisprudence and it is the duty of those who administer the
law to bear this in mind.
6. This Court has on a number of occasions indicated that the punishment
must fit the crime and that it is the duty of the court to impose a proper
punishment depending on the degree of criminality and desirability for imposing
such punishment. In Earabhadrappa sentence or pattern of sentence which fails
to take due account of the gravity of the offence can seriously undermine
respect for law. It is the duty of the court to impose a proper punishment
depending upon the degree of criminality and desirability to impose such
punishment as a measure of social necessity as a means of deterring other
potential 3 S.C.C. 646] Justice Sen stated, "Judges are entitled to hold
their own views, but it is the bounden duty of the Court to impose a proper
punishment, depending upon the degree of criminality and the desirability to
impose such punishment as a measure of social necessity, as a means of
deterring other potential offenders."
7. It is not necessary to multiply authorities. In a recent S.C.C. 710],
this question has again been dealt with. This Court observed:
"Imposition of sentence without considering its effect on the social
order in many cases may be in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other offences involving moral
turpitude or moral delinquency which have great impact on social order and
public interest, cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre sentences or taking too
sympathetic view merely on account of lapse of time in respect of such offences
will be resultwise counterproductive in the long run and against societal
interest which needs to be cared for and strengthened by string of deterrence
inbuilt in the sentencing system."
8. It is true that reformation as a theory of punishment is in fashion but
under the guise of applying such theory, courts cannot forget their duty to
society and to the victim. The Court has to consider the plight of the victim
in a case involving rape and the social stigma that may follow the victim to
the grave and which in most cases, practically ruins all prospects of a normal
life for the victim. Could a Court afford to forget these aspects while
imposing a punishment on the aggressor? I think not. The Court has to do
justice to the society and to the victim on the one hand and to the offender on
the other. The proper balance must be taken to have been stuck by the
legislature.
Hence, the legislative wisdom reflected by the statute has to be respected
by the Court and the permitted departure therefrom made only for compelling and
convincing reasons.
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