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2022 Supreme(Cal) 339
IN THE HIGH COURT OF CALCUTTA
Siddhartha Roy Chowdhury, J.
Basudeb Sharma And Others - Appellant
Versus
State Of West Bengal - Respondent
CRR 345 of 2002 & CRAN 1 of 2002
Decided On : 12-09-2022
Mr. Prabir Majumder, Adv., for the Appellant; Mr. N.P. Agarwala, Adv., Mr. Pratick Bose, Adv., for the Respondent
The mandatory nature of Section 360 and 361 of the Cr.P.C. in sentencing decisions and the importance of considering the legislative mandate in such cases.
Headnote:
Section 323/324 - Offence against Uttam Sharma and Monoranjan Sharma - I.P.C. - Section 147/325/34, Section 360, Section 361 - The court discussed the provisions of Section 360 and 361 of the Cr.P.C. and their mandatory nature, as well as the sentencing alternatives in the Criminal Procedure Code. The court highlighted the importance of considering the legislative mandate engrafted in Section 360 and 361 of the Cr.P.C. in sentencing decisions.
Fact of the Case:
The petitioners were convicted for committing offences under Section 323/324 of the I.P.C. for attacking individuals constructing a temple, resulting in injuries. The petitioners sought to quash the judgment affirming their conviction.
Finding of the Court:
The court found the petitioners guilty of the offences but noted that both the Trial Court and the Appellate Court failed to consider the mandatory provisions of Section 360 and 361 of the Cr.P.C. in imposing the sentence.
Issues: The critical question of sentence and the failure of the lower courts to consider the provisions of Section 360 and 361 of the Cr.P.C.
Ratio Decidendi: The court emphasized the mandatory nature of Section 360 and 361 of the Cr.P.C. in sentencing decisions and the importance of considering the legislative mandate in such cases.
Final Decision: The court altered the sentence imposed on the petitioners and directed their release on entering into a bond, considering the failure of the lower courts to act in consonance with the legislative mandate engrafted in Section 360 and 361 of the Cr.P.C.
JUDGMENT
Siddhartha Roy Chowdhury, J. - This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioners suffering an order of conviction for committing offence under Section 323/324 of the I.P.C.
2. Briefly stated, on 10th April, 1994, the petitioners herein being armed way with lathi, axe, attacked Uttam Sharma and Monoranjan Sharma, who were constructing a temple of Lord Shiva by the road side. Rabin Sharma landed blow of lathi on the head of Uttam Sharma. Basudeb Sharma assaulted Uttam Sharma with an axe. Monoranjan Sharma was assaulted by other accused persons. Both Uttam Sharma and Monoranjan Sharma sustained injuries and admitted to hospital. Mother of the victim Smt. Sudevi Sharma set the criminal administration of justice into motion and Karimpur P.S. Case No. 97 of 1994 dated 10th April, 1994 was registered against 9 accused persons.
3. Police took up investigation that culminated into submission of charge sheet. The accused persons pleaded their innocence being charged under Section 147/325/34 of the I.P.C. and claimed to be tried.
4. To bring home charges the prosecution examined 8 witnesses including the victims and learned Trial Court after considering the evidence on record both oral and documentary was pleased to record an order of conviction against all the accused persons. Accused Basudeb Sharma was found to have committed the offence under Section 324 of the I.P.C. and was sentenced to suffer rigorous imprisonment for two years while rest eight accused persons were sentence to suffer simple imprisonment for six month and to pay fine of Rs. 500/- each for committing offence under Section 323 of the I.P.C. The convicts were unsuccessful in challenging the said order of conviction before the learned Additional Sessions Judge, 4th Court Nadia.
5. The petition under consideration is filed seeking order to quash the judgement passed by learned Appellate Court upholding the order of conviction.
6. Mr. Prabir Majumder, learned Advocate for the petitioners strenuously argued to underscore the infirmities in the judgement passed by learned Appellate Court affirming the order of conviction passed by the learned Trial Court. According to Mr. Majumder prosecution case has not been proved beyond reasonable doubt because of the yawning gap between the injury report as to the nature of weapon used and nature of injury found on the person of Uttam Sharma.
7. Drawing my attention to the judgement passed by learned Trial Court, Mr. Majumder argued that the accused persons are not habitual offenders. While imposing sentence learned Trial Court did not look into the provision of Section 360 of the Cr.P.C. Section 361 of the Code of Criminal Procedure indicates that if the Court decides not to exercise its jurisdiction under Section 360 of the Cr.P.C. then it is obligatory to record the reasons as to why the benefit of provision of Section 360 Cr.P.C. is being denied.
According to Mr. Majumder the provision of Section 361 is peremptory in nature and by not indicating such provision of Section 360 of the Cr.P.C. both learned Trial Court and learned Appellate Court committed grave mistake resulting into miscarriage of justice.
8. To buttress his submission Mr. Majumder, learned Counsel placed his reliance upon a decision of Hon'ble Supreme Court in the case of Om Prakash & Ors. Vs. State Of Haryana reported in (2001) 10 SCC 477.
9. Concurrent findings of learned Trial Court and learned Appellate Court towards culpability of the petitioners in committing the offence, persuade me to consider the critical question of sentence. Admittedly offence was committed on 10th April, 1994 and the petitioners were found guilty on 29th January, 1998. The order of conviction was affirmed by learned Appellate Court on 24th September, 2001.
Therefore, the petitioners are suffering the proceeding for nearly 24 years.
10. In DILBAG SINGH VS. STATE OF PUNJAB reported in AIR 1979 SC 680 Hon'ble Justice V.R. K
