STATE OF GUJARAT Vs. PANKAJBHAI

Special Court has not exercised the discretion judiciously and the reasons which are given by the learned Special Court while imposing the sentence minimum only are not germane and it can be said that by not awarding appropriate punishment commensurate with the gravity of the offence, it has resulted into grave miscarriage of justice and therefore, the sentence awarded by the learned Special Court is required to be interfered with.

GUJARAT HIGH COURT

DIVISION BENCH

( Before : M.R. Shah and Z.K. Saiyed, JJ. )

STATE OF GUJARAT — Appellant

Vs.

PANKAJBHAI — Respondent

Criminal Appeal (for Enhancement) No. 1404 of 2014

Decided on : 08-01-2016

Criminal Procedure Code, 1973 (CrPC) – Section 357
Penal Code, 1860 (IPC) – Section 307, Section 376, Section 376(1), Section 376(2), Section 376(2)(f)
Protection of Children from Sexual Offences Act, 2012 – Section 4

Counsel for Appearing Parties

Hardik Soni, Addl. Public Prosecutor, for the Appellant; Pratik B. Barot, Advocate, for the Respondent

JUDGMENT

M.R. Shah, J.—1.0 Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.09.2014 passed by the learned Special Judge (POCSO), Amreli (hereinafter referred to as “Special Court”) in Special POCSO Case No. 1/2014 insofar as not awarding the adequate punishment to the original accused who has been held guilty for the offence punishable under section 376 of the Indian Penal IPC, 1860 (hereinafter referred to as “IPC”) and section 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act, 2012”), the State has preferred the present Criminal Appeal for enhancement of the punishment and sentence imposed by the learned Special Court.

2.0 At the outset it is required to be noted that by impugned judgment and order the learned Special Court has as such convicted the original accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 and while convicting the original accused for the aforesaid offences, the learned Special Court has imposed the sentence of 7 years’ RI with fine of Rs. 10,000/- and in default of payment of fine to undergo further 1 year’s SI for the offence punishable under section 376 of the IPC and has sentenced the original accused to undergo 7 years’ RI with fine of Rs. 5000/- and in default of payment of fine to undergo further 6 month’s SI for the offence punishable under section 4 of the POCSO Act, 2012. The learned Special Court has also passed an order to pay Rs. 11,000/- out of the fine amount to the victim/prosecutrix towards compensation under section 357 of the Code of Criminal Procedure, 1973. The learned Special Court has also passed an order to undergo both the aforesaid sentences concurrently.

2.1 Having not satisfied with the sentenced imposed by the learned Special Court, the State has preferred the present Criminal Appeal for the enhancement of sentence and the sentence imposed by the learned Special Court.

3.0 At the outset it is required to be noted that so far as the impugned judgment and order of conviction passed by the learned Special Court convicting the original accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 is concerned, it has as such attained finality, as the accused has accepted the same and has not challenged the same by way of appeal. Therefore, the only question which is posed for consideration of this Court is whether in the facts and circumstances of the case the learned Special Court is justified in imposing the sentence of 7 years’ RI while convicting the original accused for the offence punishable under section 376 of the IPC and while imposing 7 years’ RI for the offence punishable under section 4 of the POCSO Act, 2012 and/or whether in the facts and circumstances of the case imposing the sentence of minimum provided under section 376 of the IPC and section 4 of the POCSO Act, 2012 can be said to be adequate punishment commensurate with the offences committed by the original accused?

4.0 Heard Shri Hardik Soni, learned Additional Public Prosecutor appearing on behalf of the appellant – State and Shri Pratik Barot, learned advocate appearing on behalf of the respondent herein – original accused, who has been appointed by the Gujarat High Court Legal Aid Committee.

4.1 We have gone through the impugned judgment and order passed by the learned Special Court and we have re-appreciated the entire evidence on record, both oral as well as documentary.

From the evidence on record and the judgment and order of conviction passed by the learned Special Court, it emerges and it is not in dispute that at the time of the incident/offence committed by the original accused, prosecutrix/victim was only 3 years of age. It also emerges that the age of the accused at the time of committing the offence was 25 years. That the incident had taken place at the house of the accused and that at the time of committing the offence, the original accused was under the influence of liquor/alcohol. It also emerges that the parents of the victim/prosecutrix were very poor, migrated to Gujarat from Uttar Pradesh for maintaining the family and for their survival and that the father of the victim/prosecutrix was selling panipuri. That the parents were hailing from village Purni, Uttar Pradesh. It is also required to be noted that during the trial, for whatever reason and may be because of the poverty and/or illiteracy, the original accused has been successful in winning over the material witnesses i.e. parents of the victim/prosecutrix and the parents have turned hostile. However, considering the medical evidences and other clinching evidences, the prosecution has been successful in proving the case against the accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 and thereby the learned Special Court as such by impugned judgment and order has convicted the accused for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012. Considering the aforesaid facts and circumstances, it is required to be considered whether the learned Special Court is justified in imposing minimum sentence provided under section 376 of the IPC and section 4 of the POCSO Act, 2012.

5.0 Shri Hardik Soni, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned Special Court has materially erred in awarding the minimum sentence provided under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is submitted that as such the learned Special Court has convicted the original accused for the offence under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is vehemently submitted that while convicting the accused for the aforesaid offences the sentence which is imposed by the learned Special Court is inadequate and not commensurate with the offences which are held to have been committed by the accused.

5.1 It is further submitted by Shri Soni, learned Additional Public Prosecutor that even the reasons which are given by the learned Special Court while imposing the sentence are not germane and/or it cannot be said that cogent reasons have been given by the learned Special Court while awarding the sentence. It is vehemently submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that while not awarding appropriate and adequate punishment for the offences under section 376 of the IPC and section 4 of the POCSO Act, 2012, it cannot be said that the learned Special Court has failed to perform its duty and/or has failed to exercise the discretion judiciously.

5.2 Relying upon the recent decision of the Hon’ble Supreme Court in the case of Satish Kumar Jayantilal Dabgar v. State of Gujarat reported in , (2015) 7 SCC 359 and the decision of the Hon’ble Supreme Court in the case of Aero Traders (P) Ltd. v. Ravinder Kumar Suri reported in , (2004) 8 SCC 307 and in the case of Sumer Singh v. Surajbhan reported in , (2014) 7 SCC 323, he has vehemently submitted that while awarding the sentence not only the learned Special Court has not exercised the discretion judiciously but even has failed to appreciate and/or consider the purpose and object of imposing adequate sentence/punishment. Relying upon the aforesaid decisions it is submitted that in the aforesaid decision it is observed by the Hon’ble Supreme Court that when it is said that a matter is within the discretion of the Court it is to be exercised according to well-established judicial principles, according to reason and fair play, and not according to whim and caprice. It is submitted that in the said decision the Hon’ble Supreme Court has observed that discretion when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. Shri Soni, learned Additional Public Prosecutor has also heavily relied upon the decision of the Hon’ble Supreme Court in the case of Narinder Singh and others v. State of Punjab and another reported in , (2014) 6 SCC 466 (paras 14 to 17), in support of his submission that when the offence committed by the accused is against the society, it must be dealt with by iron hand and a strict view should be taken. It is further submitted that in the aforesaid decision the Hon’ble Supreme Court has specifically observed and held that in cases involving heinous crime with element of criminality against the society and not parties inter se, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. It is further submitted that in the aforesaid decision the Hon’ble Supreme Court has further observed that cases of murder, rape, or other sexual offences etc. would clearly fall in this category. Shri Soni, learned Additional Public Prosecutor has heavily relied upon the recent decision of the Hon’ble Supreme Court in the case of Prahlad and another v. State of Haryana reported in , (2015) 8 SCC 688, (para 16 to 18) more particularly para 17 and has submitted that the Hon’ble Supreme Court in the aforesaid decision has specifically observed and held that the offence of rape is basically an assault on the human rights of a victim and it is an attack on her individuality. It is submitted that in the aforesaid decision it is further held that sentence in support of offence of rape has to be in consonance with the law. It is further submitted that in the aforesaid decision it is further observed that with regard to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. It is submitted that in the aforesaid decision it is further observed that, perpetrator of the crime must realize that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.

5.3 Relying upon the decision of the Hon’ble Supreme Court in Criminal Appeal No. 1887/2008, in the case of State of Rajasthan v. Vinodkumar and another decision of the Hon’ble Supreme Court in the case of State of Rajasthan v. Hiralal reported in , (2012)6 SCC 770, it is submitted that in the aforesaid decision the Hon’ble Supreme Court has observed and held that punishment should also be proportionate and commensurate to the gravity of the offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. It is submitted that in the aforesaid decision it is further observed that, conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance and the Court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.

5.4 It is further submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that, as observed and held by the Hon’ble Supreme Court as well as this Court in catena of decisions, rape is a heinous crime, a crime against the society, a crime against human dignity. It is submitted that therefore when any offence/crime is against the society, it must be dealt with iron hand more particularly when the victim is the child victim.

5.5 It is further submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that in the present case while imposing adequate/appropriate punishment, the learned Special Court ought to have considered the following circumstances.

“(1) that the prosecutrix/victim was only 3 years of age;

(2) that the age of the original accused at the time of committing the offence was 25 years;

(3) the incident had taken place at the house of the accused;

(4) that the original accused was under the influence of liquor/alcohol;

(5) that during the trial the original accused has been successful in winning over the material witnesses i.e. the parents of the victim who were labourers and because of that the parents of the victim have turned hostile.”

It is further submitted that in the present case even the accused was to an extent successful in winning over the parents of the victim and for whatever reason, may be because of the poverty and/or illiteracy, the parents of the victim turned hostile and/or did not support the prosecution case. However, fortunately, the prosecution has been successful in proving the case against the accused by leading other cogent evidence such as medical evidences etc. and thereby the accused is held guilty for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is submitted that the attempt on the part of the accused to see that the material witnesses/parents of the victim turned hostile was required to be considered by the learned Special Court while imposing appropriate and adequate punishment. It is submitted that any attempt on the part of the accused to win over the witnesses must be dealt with strictly and with iron hand and maximum punishment should be imposed so that a message must go to the society at large that any attempt on the part of the accused to win over the witnesses and/or to see that the witnesses turn hostile shall ultimately not help the accused. It is submitted that therefore such conduct of the accused is a relevant consideration for awarding maximum sentence.

5.6 It is submitted that in the present case the learned Presiding Judge is satisfied in awarding only minimum sentence provided under the IPC and the POCSO Act, 2012, which has resulted into miscarriage of the justice. It is submitted that it is the duty of every Presiding Judge to award adequate and appropriate punishment commensurate with the offence committed by the accused.

Making above submissions and relying upon following decisions, it is requested to impose maximum punishment provided under section 376 of the IPC and section 4 of the POCSO Act, 2012.

“(1) , (1995)6 SCC 230 State of A.P. v. Bodem Sundara Rao

(2) , (2005)2 SCC 710 State of M.P. v. Munna Choubey & Anr.

(3) , (2005)8 SCC 1 State of M.P. v. Bala @ Balaram

(4) , (2014)6 SCC 466 Narinder Singh & Ors. v. State of Punjab & Anr.

(5) , (2014)7 SCC 323 Sumer Singh v. Surajbhan Singh & Ors.

(6) , (2014)13 SCC 318 Shimbhu & Anr. v. State of Haryana

(7) , (2015)7 SCC 359 Satish Kumar Jayantilal Dabgar v. State of Gujarat

(8) , (2015)8 SCC 688 Prahlad & Anr. v. State of Haryana”

6.0 Present appeal is opposed by Shri Pratik Barot, learned advocate appearing on behalf of the original accused.

It is vehemently submitted by Shri Barot, learned advocate appearing on behalf of the original accused that as such while convicting the original accused the learned Special Court by assigning cogent reasons has already awarded the minimum sentence provided under the IPC and POCSO Act, 2012. It is submitted that there is always a discretion vested in the learned Presiding Judge to impose the sentence/punishment between the minimum and the maximum provided under the IPC and the POCSO Act, 2012. It is submitted that therefore when the learned Presiding Judge has exercised the discretion by giving cogent reasons, the same is not required to be interfered by this Court in exercise of the appellate jurisdiction.

6.1 It is submitted that as such merely because the parents of the victim turned hostile, from that itself it cannot be presumed that the accused has won over the said witnesses. It is submitted that there may be number of reasons due to which many a times prosecution witnesses do not support the case of the prosecution. It is, therefore, submitted that when the learned Special Court has imposed the sentence minimum provided under the IPC and the POCSO Act, 2012, in the facts and circumstances of the case, it can be said that the learned Special Court has imposed the adequate punishment/sentence, which may not be interfered with by this Court in exercise of the appellate jurisdiction.

Making above submissions it is requested to dismiss the present appeal by further submitting that in the present case as such the accused has accepted the impugned judgment and order of conviction and sentence and is undergoing the sentence imposed by the learned Special Court.

7.0 Heard learned advocates appearing for respective parties at length. As observed hereinabove, the present appeal has been preferred by the appellant State of Gujarat for enhancement of the sentence imposed by the learned Special Court, awarded while convicting the original accused for the offence under section 376 of the IPC and section 4 of the POCSO Act, 2012. That while convicting the original accused for the aforesaid offences, the learned Special Court has imposed the sentence of 7 years’ RI and fine of Rs. 10,000/- and in default of payment of fine to undergo further 1 year SI for the offence punishable under section 376 of the IPC and 7 years’ RI with fine of Rs. 5000/- and in default of payment of fine to undergo further 6 months’ SI for the offence punishable under section 4 of the POCSO Act, 2012. That the sentence provided for the offence under section 376 of the IPC if it falls within section 376(2) of the IPC is Rigorous Imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine and the sentence provided for the offence under section 4 of the POCSO Act, 2012 is imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Thus, while convicting the original accused for the offence punishable under section 376 of the IPC and imposing the sentence of seven years Rigorous Imprisonment, the learned Special Court has even imposed the sentence less than the minimum provided under section 376(2) of the IPC. That as the victim was only 3 years of age, the case would fall under section 376(2)(f) of the IPC and as observed hereinabove the minimum sentence provided for such offence would be ten years Rigorous Imprisonment which may extend to life imprisonment. Even the learned Special Court while convicting the original accused under section 4 of the POCSO Act, 2012 has awarded the sentence minimum provided under section 4 of the POCSO Act, 2012. From the reasoning given by the learned Special Court while not imposing the sentence above minimum provided under the IPC and POCSO Act, 2012, it appears that what has been weighed with the learned Special Court is that the accused is of young age. The aforesaid can hardly be said to be a cogent reason. As observed by the Hon’ble Supreme Court, age of the victim can also be said to be relevant consideration while imposing adequate and appropriate punishment. Under the circumstances, it can be said that learned Special Court has not exercised the discretion judiciously while not imposing the maximum sentence provided under the IPC and POCSO Act, 2012 and having satisfied with imposing the sentence minimum provided under the IPC and POCSO Act, 2012. While considering the aforesaid question passed for consideration of this Court and while considering the question whether the sentence imposed by the learned Special Court can be said to be adequate punishment commensurate with the offence committed by the accused, following decisions of the Hon’ble Supreme Court are required to be referred to and considered.

7.1 In the case of State of M.P. v. Bala alias Balaram reported in , (2005) 8 SCC 1, the Hon’ble Supreme Court has observed and held that, “rape is a heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal.” It is further observed that, “to view such an offence once it is proved, lightly, is itself an affront to society.” It is further observed and held that, “though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative.” It is further observed that, “the proviso to Sections 376(1) and 376(2) of the IPC 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 reason must be relevant to the exercise of such discretion vested in the Court.” It is further observed that, “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.” In the aforesaid decision it is further observed and held by the Hon’ble Supreme Court that, “the punishment prescribed by the Penal IPC reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence.” While considering its earlier decision in the case of State of M.P. v. Munna Choubey reported in , (2005)2 SCC 710, it is further observed that, “imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise.” It is further observed that, “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.” In the aforesaid decision Hon’ble Supreme Court in para 11 to 17 has observed and held as under:

“11. 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.

12. The punishments prescribed by the Penal IPC 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.

13. 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.

14. 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.

15. 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 v. State of Karnataka [, (1983) 2 S.C.C. 330] this Court observed,

“A sentence or pattern of sentence which in view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs 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 offenders.”

In Rajendra Prasad v. State of Uttar Pradesh [, (1979) 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.”

16. It is not necessary to multiply authorities. In a recent decision in State of M.P. v. Munna Choubey and Another [, (2005) 2 S.C.C. 710], this question has again been dealt with. This Court observed:

“15. 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 sentence 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 an strengthened by string of deterrence inbuilt in the sentencing system.”

17. 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.”

7.2 In the case of Sumer Singh v. Surajbhan Singh and others reported in , (2014)7 SCC 323, the Hon’ble Supreme Court had an occasion to consider the principle of sentencing proportionality and adequacy of sentence. In the aforesaid decision while emphasizing the need for appropriate punishment in paragraph- 36 the Hon’ble Supreme Court has observed and held as under:–

“36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the IPC would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial Judge.”

7.3 Again in the case of Narinder Singh and others v. State of Punjab and another reported in , (2014) 6 SCC 466, the Hon’ble Supreme Court had an occasion to consider the sentencing policy, the purpose/jurisprudential justification of awarding sentence (deterrence, retribution or rehabilitation) vis-�-vis nature of crime. In para 14, 16 and 17 the Hon’ble Supreme Court has observed as under:

“14. The Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing.

16. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the IPC.

19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case.”

7.4 In the case of State of Karnataka v. Krishnappa reported in , (2000)4 SCC 75 in paras 12 to 16 has observed and held as under:

“12. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but, it may extend to life and also to fine. The proviso to S. 376(2), I.P.C., of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years R.I. though in exceptional cases “for special and adequate reasons” sentence of less than 10 years R.I. can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for “special and adequate reasons” and not in a casual manner. Whether there exist any “special and adequate reasons” would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application.

13. The approach of the High Court in this case, to say the least, was most casual and inappropriate. There are no good reasons given by the High Court to reduce the sentence, let alone “special or adequate reasons.” The High Court exhibited lack of sensitivity towards the victim of rape and the society by reducing the substantive sentence in the established facts and circumstances of the case. The Courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others.

14. In State of A.P. v. Bodem Sundara Rao, , (1995) 6 SCC 230 : (1995 AIR SCW 4435 : AIR 1996 SC 530), while dealing with a case of reduction of sentence from 10 years R.I. to 4 years R.I. by the High Court in the case of rape of a girl aged between 13 and 14 years, it was observed (para 9 of AIR):

“9. In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court’s verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane.” (Emphasis supplied)

The sentence as accordingly enhanced to 7 years R.I. in the said case.

15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends herself-esteem and dignity – it degrades and humilitates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh, , (1996) 2 SCC 384 : (1996 AIR SCW 998 : AIR 1996 SC 1393 : 1996 cri LJ 1728) observed (para 20 of AIR):

“21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.”

16. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”

7.5 Applying the law laid down by the Hon’ble Supreme Court in the aforesaid decisions to the facts of the case on hand, awarding minimum sentence of 7 years for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 cannot be said to be adequate punishment commensurate with the gravity of the offence. In the present case at the time of commission of the offence, victim was aged only 3 years and the accused was aged 25 years of age. The accused was a neighbour and the victim went to the place of the accused to play and taking the disadvantage of the situation, the accused committed the offence. Committing the offence of rape on the victim aged 3 years is a heinous crime and is required to be dealt with sternly and with iron hand. In such a case awarding the sentence minimum provided under the IPC and POCSO Act, 2012 only cannot be said to be adequate punishment commensurate with the gravity of the offence. Merely because the accused is young, can hardly be a ground not to impose adequate punishment and/or to impose the sentence minimum provided under the IPC and POCSO Act, 2012 only. In the present case even for whatever reason as such the accused was able to see that the parents of the victim who were from the lower strata of the society and migrated from Uttar Pradesh for earning, turned hostile and the accused can be said to be successful to that extent in getting the parents of the victim turn hostile. Therefore also, the learned Special Court ought to have impose the maximum punishment and ought not to have satisfied with imposing the sentence minimum provided under the IPC and POCSO Act, 2012 only. A strong message must go to such an accused and to the society that any such attempt would be dealt with sternly and with iron hand.

7.6 The submission of Shri Barot, learned advocate appearing on behalf of the original accused that in the present case there is a wide discretion vested in the learned Special Court to impose the sentence between minimum and maximum provided under the IPC and therefore, when the learned Special Court has exercised the discretion while imposing the sentence minimum provided under the IPC, same is not required to be interfered with by the appellate Court is concerned, it is required to be noted that the Presiding Judge having discretion vested in it is required to exercise the discretion judiciously and cogent and valid and adequate reasons are required to be given by the learned Presiding Judge while exercising the discretion. Considering the facts of the case on hand and while imposing the sentence minimum provided under the IPC and POCSO Act, 2012 only and not awarding any punishment/sentence more than the minimum provided under the IPC and POCSO Act, 2012, it can be said that the learned Special Court has not exercised the discretion judiciously and the reasons which are given by the learned Special Court while imposing the sentence minimum only are not germane and it can be said that by not awarding appropriate punishment commensurate with the gravity of the offence, it has resulted into grave miscarriage of justice and therefore, the sentence awarded by the learned Special Court is required to be interfered with.

8.0 In view of the above and for the reasons stated above, the impugned judgment and order passed by the learned Special Judge (POCSO) Amreli dated 29.09.2014 in Special POCSO Case No. 1/2014 is hereby modified to the extent while convicting the original accused for the offence punishable under Section 376 of the IPC and Section 4 of the POCSO Act, 2012, the original accused is directed to undergo sentence of 10 years’ RI with fine of Rs. 50,000/- and in default to undergo 2 years’ RI under Section 376 of the IPC and is also directed to undergo sentence of 10 years’ RI with fine of Rs. 50,000/- and in default to undergo further 2 years’ RI for the offence punishable under Section 4 of the POCSO Act, 2012. Both the aforesaid sentences to run concurrently. On deposit of the fine imposed as above, the entire amount of fine, both for the offences punishable under Section 376 of the IPC and Section 4 of the POCSO Act, 2012, to be paid to the victim under Section 357 of the Code of Criminal Procedure, 1973 and the learned Special Court is directed to see that the said amount is invested in Fixed Deposit in the name of the victim till she becomes major. However, she shall be entitled to the periodical interest on the same, which shall be used for her education and maintenance.


(2016) CriLJ 1744 : (2016) 3 Crimes 379 : (2016) 2 GLR 1046

Cases Referred

Aero Traders P Ltd. Vs. Ravinder Kumar Suri, (2004) 8 SCC 307
Earabhadrappa Vs. State of Karnataka, (1983) 2 S.C.C. 330
Narinder Singh Vs. State of Punjab, (2014) 6 SCC 466
Prahlad Vs. State of Haryana, (2015) 8 SCC 688
Rajendra Prasad Vs. State of Uttar Pradesh, (1979) 3 S.C.C. 646
Satish Kumar Jayantilal Dabgar Vs. State of Gujarat, (2015) 7 SCC 359
Shimbhu Vs. State of Haryan, (2014) 13 SCC 318
State of A.P. Vs. Bodem Sundara Rao, (1995) 6 SCC 230
State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75
State of M.P. Vs. Bala @ Balaram, (2005) 8 SCC 1
State of M.P. Vs. Munna Choubey, (2005) 2 S.C.C. 710
State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384
State of Rajasthan Vs. Hiralal, (2012) 6 SCC 770
Sumer Singh Vs. Surajbhan Singh, (2014) 7 SCC 323

Union of India & Ors. Vs. Ram Lakhan Sharma [ ALL SC 2018 JULY]

KEYWORDS:- RAPE- Removal from service- disciplinary inquiry – natural Justice-

  • The question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case.
  • The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.
  • When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

DATE: JULY 02, 2018

ACTS: Section 376 IPC -CRPF Rules, 1955

SUPREME COURT OF INDIA

Union of India & Ors. Vs. Ram Lakhan Sharma

[Civil Appeal No. 2608 of 2012]

[Civil Appeal No.6745 of 2013]

[Civil Appeal No.9373-9374 of 2013]

[Civil Appeal No.1800 of 2014]

ASHOK BHUSHAN, J.

1. These appeals have been filed by the Union of India questioning the judgments of the Gauhati High Court by which writ petitions filed by the respondents challenging their orders of removal were allowed by setting aside the removal/dismissal orders and the respondents were directed to be reinstated. The High Court had allowed the writ petitions filed by the respondents on more or less similar grounds, hence, it shall be sufficient to notice the facts and pleadings in detail in Civil Appeal No.2608 of 2012 for deciding this batch of appeals.

2. The respondent- Ram Lakhan Sharma was appointed as constable in the Central Reserve Police Force (hereinafter referred to as “CRPF”) on 10.04.1991. On 23.10.1999 while he was posted as constable 11 Bn., CRPF at Agartala, Tripura he went out from Guard duty at 09.00 a.m. and returned back at 09.50 a.m. In the afternoon, an allegation was made by one lady Smt. Gita Paul making allegation of rape against the respondent and First Information Report was registered on 23.10.1999 at the Police Station under Section 376 IPC.

3. On 23.10.1999 the appellant was placed under suspension. On 04.12.1999 chargesheet was issued to the respondent containing articles of charges I and II. First charge was that the appellant remained absent without proper permission of competent authority with consent of his Guard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930 hrs. 3 Second charge was that he while functioning as constable (Guard) has committed an act of misconduct in his capacity as a member of the force in that he tried to do sexual intercourse with a woman with mutual consent by giving money which amounts to indiscipline/moral turpitude.

4. The disciplinary authority appointed one Shri S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry Officer. The Inquiry Officer recorded the prosecution evidence. The Inquiry Report was submitted which was also supplied to the delinquent vide letter dated 07.02.2000 asking the respondent to submit reply within 15 days. The Commandant, 11 Bn passed an order on 19.03.2000 imposing penalty of removal from service w.e.f. 19.03.2000 under Section 11(1) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1955.

5. On the basis of First Information Report registered against the respondent a chargesheet was submitted in the Court of Sessions Judge, Tripura, Agartala. Learned Sessions Judge after completing the trial on 20.09.2001 acquitted the respondent from 4 charges levelled against him. After acquittal from criminal case the respondent filed a Writ Petition No.6778 of 2000 in the High Court of Allahabad challenging his order of removal. The High Court by order dated 20.05.2004 disposed of the writ petition giving liberty to the respondent to file an appeal under CRPF Rules, 1955 within two weeks. In pursuance of the order of the High Court an appeal was filed before D.I.G.R., CRPF, Patna.

The Appellate Authority rejected the appeal by its order dated 22.07.2004 against which order a revision was filed before the Inspector General of Police, CRPF which too was rejected on 02.03.2005. Challenging the order of removal as well as orders passed in appeal and revision the respondent filed Writ Petition (C) No.14 of 2006. Learned Single Judge vide judgment dated 12.04.2010 allowed the writ petition by setting aside the removal order and directed for reinstatement of the respondent. The learned Single Judge also permitted the appellant to initiate the disciplinary inquiry afresh from the stage of appointing Presenting Officer.

It was further directed that if the departmental proceeding is required to be started afresh, the respondent shall be placed under suspension and during the period of suspension, subsistence allowance should be paid. It was left to the wisdom of the authority to decide on arrear pay and allowances of the respondent.

6. Union of India filed an appeal against the judgment of the learned Single Judge being Writ Appeal No.25 of 2010. The Division Bench of the High Court by its judgment dated 10.01.2011 dismissed the writ appeal aggrieved by which order Civil Appeal No.2608 of 2012 has been filed by the Union of India.

7. The facts and pleadings in other civil appeals being more or less similar they need to be only briefly noted.

8. Union of India has filed this appeal challenging the judgment of the Division Bench dated 18.01.2013 by which Writ Appeal No.1 of 2013 filed by the Union of India questioning the judgment of the learned Single Judge was dismissed. The respondent, Shri T. Lupheng while posted at Manipur on 24.03.2008 sought 6 permission from his senior during his duty hours for going to the Bank to withdraw his salary.

He was allowed to go and directed to report back to his duties. On his return he was found under the influence of alcohol. On 07.04.2008 the personnel was suspended. On four articles of charges inquiry was held. The Inquiry Officer recorded the evidence of prosecution. The inquiry was completed and report was submitted on 19.06.2008. The disciplinary authority vide its order dated 05.07.2008 awarded the punishment of dismissal from service. An appeal was filed which was dismissed by DIG, CRPF on 07.11.2008. The revision was also dismissed by IGP-C/S, CRPF on 05.06.2009. Writ Petition No.556 of 2009 was filed in the Gauhati High Court which was allowed by the learned Single Judge by judgment dated 04.08.2012.

A writ appeal was filed by the Union of India which was dismissed by the Division Bench on 18.01.2013 against which this appeal has been filed.

9. These appeals have been filed by the Union of India against the Division Bench judgment dated 7 24.08.2012 by which the appeal filed by the Union of India questioning the judgment dated 08.02.2012 has been dismissed. The respondent was serving as constable in F/27 Bn CRPF. It was alleged that on 13.04.2000 he left lines without seeking prior permission, consumed liquor and created nuisance in the market. The chargesheet was issued to the respondent containing two articles of charges.

The Inquiry Officer was appointed. Inquiry Officer recorded the statement of prosecution witnesses. By an order dated 30.08.2000 the respondent was dismissed from services. There were two other delinquents apart from the respondent who were proceeded with and dismissed by the common order. Learned Single Judge relying on an order of the High Court in Writ Petition (C) No.297 of 2002 (Sri Mutum Shanti Kumar Singh vs. Union of India) on 08.02.2012 set aside the order of the dismissal and directed reinstatement of the respondent. Union of India filed Writ Appeal No.32 of 2012 challenging the order of Learned Single Judge before the Gauhati High Court.

The Division Bench of the High Court by order dated 8 24.08.2012 dismissed the writ appeal. Review petition was filed by the Union of India which too was dismissed on 18.01.2013. Consequently, these appeals have been filed by the Union of India.

10. This appeal has been filed by the Union of India against the Division Bench judgment of the High Court dated 29.05.2013 by which writ petition filed by the respondent challenging the disciplinary proceedings for dismissal of the respondent was allowed.

The respondent while serving at Chothegaon, Bishnupur (Manipur) on 12.03.2007 deserted from line without permission of competent authority. Subsequently, an FIR was lodged on 12.03.2007. A warrant was issued to apprehend him on 29.07.2007 but he could not be apprehended. A Court of Inquiry was conducted and the respondent was declared “DESERTER” w.e.f. 12.03.2007 vide order dated 13.07.2007. A Departmental proceeding was initiated with articles of charges on 12.11.2007. Since, the respondent had not reported in the Unit, the inquiry proceeded ex parte. Charges levelled against the respondent were found proved. An order dated 20.05.2008 was passed awarding dismissal from service to the respondent. Thereafter, he submitted appeal before DIG, CRPF. A writ petition was filed by the respondent. The writ petition was disposed of on 29.05.2013 setting aside the dismissal order and directing for reinstatement. The appeal has been filed against the above said judgment.

11. The Gauhati High Court had allowed the writ petition filed by the respondents on the ground that in the disciplinary inquiry the principles of natural justice were violated. The High Court found that no Presenting Officer was appointed and the Inquiry Officer acted as prosecutor which violates the principles of natural justice and the entire inquiry was set aside on the aforesaid ground with liberty to the respondent to hold afresh inquiry from the stage of appointing of the Presenting Officer.

12. All the appeals filed by the Union of India raises almost similar question of law and facts and the learned counsel for the Union of India has also raised common submission in all the appeals.

13. Learned counsel for the appellant, Shri Vikramjit Banerjee, Addl. Solicitor General contends that the High Court committed error in setting aside the dismissal order on the ground of non-appointment of Presenting Officer. It is submitted that Rule 27 of CRPF Rules, 1955 which provides for holding of disciplinary inquiry does not provide for appointment of Presenting Officer. The appellants have followed the requirement of Rule 27 in holding disciplinary inquiry in consonance with principles of natural justice, hence, there was no occasion to set aside the dismissal order. It is submitted that the respondents were given full opportunity in the disciplinary inquiry including serving chargesheet, giving opportunity to cross-examine the witnesses, opportunity to lead evidence and submit a reply to the Inquiry Report.

14. Learned counsel for the appellant submits that Rule 27 does not mandate the appointment of Presenting Officer to hold disciplinary inquiry. It is further submitted that even if it is assumed that while non-appointment of Presenting Officer, principles of natural justice have been violated, respondents have to show what prejudice has been caused due to non-appointment of the Presenting Officer in the department enquiry. No prejudice having been caused to any of the respondents, they were not entitled for grant of relief as has been granted by the High Court.

15. Learned counsel appearing for the respondents refuting the above submissions contends that the High Court has rightly set aside the dismissal/removal orders of the respondents. In the facts and circumstances of the present case, appointment of Presenting Officer was necessary to ensure compliance of principles of natural justice which having not been done the respondents have been seriously prejudiced. It is submitted that Inquiry Officer himself acted as prosecutor by putting questions to the prosecution witnesses. Inquiry Officer having become prosecutor with entire approach towards inquiry was tainted with bias and has rightly been interfered by the High Court. It is submitted that Inquiry Officer having acted as a prosecutor no further prejudice needs to be proved.

16. We have considered the submissions of the learned counsel for the parties and perused the records.

17. Before we proceed to consider the rival submissions of the learned counsel for the parties, it is relevant to look into the reasons given by the High Court for allowing the writ petitions filed by the respondents.

18. In Civil Appeal No.2608 of 2012(leading appeal) judgment of learned Single Judge allowing the writ petition is dated 12.04.2010 which is filed at Annexure P-7 to the appeal. After elaborately considering the facts of the case, the nature of charges and affidavit filed in the writ petition, learned Judge proceeded to decide the writ petition. Learned Single Judge had directed to make available the proceedings of the disciplinary inquiry and on perusal of the proceedings of the disciplinary inquiry Learned Single Judge came to the conclusion that no Presenting Officer was appointed in the said proceedings and the Enquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further came to the conclusion that Enquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. It is useful to extract paragraphs 9 and 10 of the judgment which are to the following effect:

“(9) This Court directed the learned Asstt. S.G. appearing for the respondents to make available the proceedings of the disciplinary enquiry against the petitioner. On perusal of the proceeding, it is crystal clear that no Presenting Officer was appointed in the said proceedings and the Enquiry Officer himself led the examination in chief of the prosecution witness by putting questions. This fact is not disputed by the learned Asstt. S.G. appearing for the respondents, but his only submission is that all opportunities were given to the writ petitioner to put up his defence case and also the writ petitioner had pleaded guilty for both the charges levelled against him.

(10) It is, therefore, crystal clear that the Enquiry Officer acted himself as Prosecutor and Judge in the said disciplinary enquiry against the writ petitioner. From this admitted fact, it may not be wrong to infer that there were no fair procedures in the disciplinary proceedings as a result of which principle of natural justice was undisputedly denied to the writ petitioner.”

19. The Division Bench of the High Court in writ appeal against the aforesaid judgment also affirmed the aforesaid view of the learned Single Judge while dismissing the writ appeal.

20. As noted above there are two principal submissions raised by the learned counsel for the appellant, they are:

(i) The disciplinary inquiry is required to be conducted under Rule 27 of 1955 Rules which does not contemplate appointment of a Presenting Officer. Hence, the inquiry proceedings are not vitiated by the non-appointment of Presenting Officer.

(ii) The disciplinary inquiry has been held against the respondents by complying with the principles of natural justice. No principle of natural justice is violated by non-appointment of Presenting Officer. No prejudice has been caused to the respondents by non-appointment of Presenting Officer.

21. Rule 27 sub-rule (c) of the CRPF Rules, 1955 provides for the procedure for conducting a departmental enquiry which is as follows:

“Rule 27(c) The procedure for conducting a departmental enquiry shall be as follows:-

(1) The substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least hrs. before the commencement of the enquiry.

(2) At the commencement of the enquiry the accused shall be asked to enter a plea of Guilty or Not Guilty after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral:

(i) it shall be direct:

(ii) it shall be recorded by the Officer conducting, the enquiry himself in the presence of the accused:

(iii) the accused shall be allowed to cross examine the witnesses.

(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads “Not guilty”, he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.

(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings to the Commandant who shall record his findings and pass order where he has power to do so.”

22. A perusal of the aforesaid Rule does not indicate that Rule contemplates appointment of Presenting Officer. Service conditions including punishment and appeal procedure of an employee are governed by statutory rules. The CRPF Act, 1949 has been enacted by the Parliament for the constitution and regulation of an armed Central Reserve Police Force. Section 18 of the Act empowers the Central Government to make rules for carrying out the purposes of this Act.

23. The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.

24. Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. Its all facets are steps to ensure justice and fair play. This Court in Suresh Koshy George vs. University of Kerala and others, AIR 1969 SC 198 had occasion to consider the principles of natural justice in the context of a case where 18 disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In paragraph 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the rules under which it functions. Following was held in paragraphs 7 and 8:

“7….The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. 8. In Russel v. Duke of Norfolk, Tucker, L. J. observed:

“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”

25. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak and others vs. Union of India and others, AIR 1970 SC 150. This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognised as consisting of two principles that is no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognised. In paragraph following has been held:

“20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria 20 causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably….”

26. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772, this Court had laid down that inquiry officer is a quasi-judicial authority, he has to act as independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held:

“28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

27. When the statutory rule does not contemplate appointment of Presenting Officer whether non-appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.

28. Justice M. Rama Jois of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 366. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9: “8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable.

There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See : Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.

9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer. The relevant part of the findings reads : “The Learned Counsel for the workman further contended that the questions put by the Enquiry Officer to the Management’s witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management’s witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna.

The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry,”

As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair.

See : Munchandani Electric and Radio Industries Ltd. v. Their Workman.”

29. This Court had occasion to observe in Workmen of Lambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2) LLJ 315, that if Inquiry Officer did not keep his function as Inquiry Officer but becomes prosecutor, the inquiry is vitiated. Following was observed: “The inquiry which was held by the management on the first charge was presided over by the manager himself. It was conducted in the presence of the assistant manager and two others.

The enquiry was not correct in its procedure. The manager recorded the statements, cross-examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory.”

30. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Inquiry Officer starts himself acting as prosecutor in Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP 821. In the above case the Court considered Rule 9(9) (c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well recognised facets in paragraph 7 of the judgment which is to the following effect:

“7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:

(i) The adjudicator shall be impartial and free from bias,

(ii) The adjudicator shall not be the prosecutor,

(iii) The complainant shall not be an adjudicator,

(iv) A witness cannot be the Adjudicator,

(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,

(vi) The Adjudicator shall not decide on the dictates of his Superiors or others,

(vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated.”

31. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:

“9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor.

If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the 27 employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind.”

32. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:

“16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry. Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases.

Be that as it may.”

33. We fully endorse the principles as enumerated above, however, the principles have to be carefully 29 applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited.

When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. In this context reference is made of a case of this Court in Punjab National Bank and others vs. Kunj Behari Misra, 1998 (7) SCC 84. In the above case, this Court had occasion to consider the provisions of Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations, 1977. Regulation 7 provides for action on the enquiry report. Regulation 7 as extracted in paragraph 10 of the judgment is as follows:

“7. Action on the enquiry report.-

(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.

(2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.”

34. The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though rule does not specifically require hearing of delinquent officer. In paragraph 19 following was held:

“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

35. Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9 and 10 of the judgment of the High court giving rise to Civil Appeal No.2608 of 2012.

36. The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right  in setting aside the dismissal orders by giving liberty to the appellants to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases.

37. In result, all the appeals are dismissed subject to the liberty as granted by the High Court that it shall be open for the appellants to proceed with the inquiry afresh from the stage as directed by the High Court and it shall be open for the appellant to decide on arrear pay and allowances of the respondents.

…………………J. (ADARSH KUMAR GOEL)

…………………J. (ASHOK BHUSHAN)

NEW DELHI,

JULY 02, 2018.