Reshma
Devi & ANR. Vs. State of Punjab & ANR. [2010] INSC 661 (25 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION REVIEW PETITION (CRL.)
NO.627 OF 2009 IN CRIMINAL APPEAL NO.1731 OF 2008 Reshma Devi & Anr. ... Appellants
State of Pubjab & Anr. ... Respondents
1.
R. V. Raveendran J., Petitioners (accused 2 and 1 respectively)
and three others were tried for an offence punishable under 304-B of Indian
Penal Code (for short, `IPC') relating to the death of Anju Rani, wife of
accused No.1 - Jolly Singla. Accused No.2 (Reshma Devi) is the mother of
Accused No.1; third and fourth accused are the brothers of accused No.1; and
fifth accused is the wife of the third accused. The Sessions Court, Patiala by
its judgment dated 13.6.2002 convicted all the five accused under section 304-B
of IPC and sentenced them to undergo rigorous imprisonment for seven years and
pay a 2 fine of Rs.5,000/- each and in default undergo further imprisonment of
eight months. Two appeals were filed against the said judgment - Crl.Appeal
No.992-SB of 2002 by accused nos. 1, 2, 3 and 5 and Crl.Appeal No. 1012- SB of
2002 by accused no.4. Both appeals were heard together and disposed of by the
Madhya Pradesh High Court by common judgment dated 31.10.2006. The High Court
acquitted accused 3, 4 and 5. It dismissed the appeal filed by the accused 1
and 2 (petitioners 2 and 1 herein) and confirmed their conviction and sentence.
The High Court while so dismissing the appeal of accused 1 and 2 observed as follows
in the operative portion of the judgment:
"Jolly
Singla is stated to have already undergone imprisonment and released".
"Accused-appellant
Reshma Devi shall surrender to undergo the remaining sentence. Her bail bonds
are cancelled."
2.
The said judgment was challenged by the second respondent herein
(father of the deceased, the complainant). In the first part of the Special
Leave Petition, the State was made the first respondent and accused 1, 3 and 5
were shown as respondents 2 to 4. In the second part of the Special Leave
Petition, the State was shown as the first respondent and accused no.4 was
shown as the second respondent. The second accused (Reshma Devi) was not
impleaded as a respondent before this court, presumably because the 3 High
Court had affirmed her conviction and sentence and directed her to surrender to
undergo the remaining sentence. The appellant before this court had thus no
grievance in regard to the High Court judgment in so far as Reshma Devi
(accused No.2) was concerned.
3.
A Division Bench of this Court presided over by C.K. Thakker J.,
granted leave and allowed the appeals in part by judgment dated 5.11.2008.
This
Court held that there was no infirmity in the reasoning of the High Court as
also the conclusions therein and therefore, there was no ground to interfere
with the order of acquittal recorded in regard to accused 3 to 5. This Court
also held that the dismissal of the appeal filed by accused no.1 and accused
no.2 by the High Court by confirming the order of conviction and sentence did
not call for interference. This Court however further observed :
"In
our opinion, however, the High Court was wrong in observing that the respondent
no.2 herein (accused no.1) husband of Anju Devi had already undergone the
sentence.........When we asked the learned counsel for Respondent 2 as to how
the High Court recorded the above finding, he could not give satisfactory reply
on what basis it was stated before the High Court that Accused 1 husband had
already undergone imprisonment and was released. We, therefore, asked the
learned advocate for the State of Punjab to file an affidavit stating the basis
of the statement and release of Accused 1. Such affidavit was filed on behalf
of the State and the learned Government Pleader stated that it was as per the
Order dated 14-8- 2002 issued by the Government of Punjab, Department of Home
Affairs and Justice (Jails Branch) that Accused 1 was treated as having
undergone imprisonment for seven years."
4 It then
examined the said Government Order dated 14.8.2002 referred in the affidavit
and held as follows :
"21.
The order was issued by the Government of Punjab in exercise of power conferred
by Section 432 of the Code of Criminal Procedure, 1973 and Article 161 of the
Constitution. Clause A provides for remission of sentence of imprisonment for
life in certain cases. It is, however, expressly stated that the benefits
referred to in that part of the order would not apply to certain cases. The
said head reads thus:
"These
benefits are not admissible in the following cases."
Sub-clause
(vii) of that part deals with offences under Section 304-B IPC i.e. a dowry
death.
22. It
is, therefore, clear that in case of dowry death, an offence punishable under
Section 304-B IPC, the benefit of remission of the government order does not
apply. If it is so, in our opinion, the benefit could not be granted to
Respondent 2 husband. Hence, even if Accused 1 or Accused 2 had been released
before completion of seven years, such action could not be said to be legal and
lawful. If it is so, obviously, the appeal deserves to be allowed to that
extent.
23. For
the foregoing reasons, the appeal deserves to be partly allowed and is allowed
by directing Respondent 2 Jolly Singla to surrender to custody and to remain in
jail for a period of seven years which he had to undergo as per the order of
the trial court. If such benefit is granted to Accused 2, she also had to
surrender to custody till the period of seven years is over.
24. The
appeal is accordingly allowed to the above extent."
3.
Aggrieved by the directions in paras 22 and 23, accused nos.2 and 1
(petitioners 1 and 2) have filed this review petition inter alia contending as
follows :
5 (i)
Reshma Devi - Accused no.2 (petitioner no.1 herein) had not been impleaded as a
party in the criminal appeal filed by the complainant before this Court.
Therefore, this Court ought not to have made any observation or order adverse
to her interest. Consequently, the observation that "if such benefit is
granted to accused no.2, she had to surrender to custody till the period of
seven years is over" is liable to be deleted.
(ii) The
Government Order dated 14.8.2002 had been misread by this Court and the
observation that the benefits of remission under the said notification was not
available to accused 1 and 2 was contrary to the said Government order.
4.
There is considerable force in both the contentions. Accused no.2
(petitioner no.1) was not a party to the appeal before this court. But while
disposing of the appeal, this Court directed that if she had been granted the
benefit under the Government Order dated 14.8.2002, she also has to surrender
to custody till the period of seven years is over. Obviously as accused no.2
was not a party and as she was not heard, no observation could have been made
in the judgment of this Court nor any direction could have been given to her
detriment, that too in regard to a matter which was not the subject matter of
the appeal.
5.
We may next consider the second contention with reference to the
Government Order dated 14.8.2002. The said Government Order dated 14.8.2002
contains two parts. Part A relates to "Remission of balance of sentence of
imprisonment for life as on 15.8.2002" in regard to four categories of
prisoners. The Government order provides that the benefit under Part A would
not be admissible in respect of eight categories of offences enumerated
therein, including serial no.(vii) pertaining to "offences under section
304-B of IPC that is a dowry death". The said provision that the benefit
of remission is not available in regard to offence under section 304-B of IPC
is with reference to remission of balance of sentence of imprisonment for life
under Part A. Therefore, Part A of the Government Order dated 14.8.2002
relating to remission of balance of sentence of imprisonment for life and the
exceptions thereto are wholly inapplicable in regard to cases where the
sentence is not imprisonment for life. In this case, the sentence was not for
imprisonment for life. The sentence was rigorous imprisonment for seven years.
Part B of the said Government Order relates to special remission of one year to
prisoners who have been convicted by the courts of criminal jurisdiction in the
State of Punjab and confined in jail as on 15.8.2002. The said remission under
Part B is made inapplicable to nine types of offences enumerated therein. The
exclusion list does not contain or 7 refer to offences under section 304-B of
the Code. Thus, the special remission of one year under the Government Order
dated 14.8.2002 was available to persons convicted for a term of seven years
for the offence under section 304-B of IPC. This court, while disposing of the
criminal appeal, under the erroneous assumption that the case fell under Part A
and not Part B of the Government Order dated 14.8.2002, had observed that the
benefit of the said Government Order was not available to accused 1 and 2,
overlooking the fact that benefit of remission under Part B thereof was in fact
available.
6.
In view of the above, the judgment dated 5.11.2008 in Criminal
Appeal No.1731/2008 is reviewed and paras 18 to 24 of the said judgment are
deleted and instead the following is added: "The appeals are therefore
dismissed." If accused nos.(1) and (2) had been extended the benefit of
Part B of Government Order dated 14.8.2002, the same shall not be disturbed.
................................J. (R V Raveendran)
..............................J.
New Delhi;
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