National Commission Of Women vs State Of Delhi & Anr

S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. 2506 OF 2009

NATIONAL COMISSION OF WOMEN ..... PETITIONER (S)

vs.

STATE OF DELHI & ANR. ..... RESPONDENT(S)

O R D E R

1. This Special Leave Petition has been filed by the

National Commission for Women (hereinafter called the

`Commission') statedly under the inherent powers of this

Court challenging the order of the High Court dated 9th

February, 2009, whereby the respondent No.2 has been

acquitted for the offence under Section 306 of the Indian

Penal Code and while maintaining his conviction under

Section 376 of the Indian Penal Code, the sentence has been S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 2

reduced to that already undergone, which is said to be

about five years and six months.

2. The facts are as under:

3.1 Sunita then aged 21 years, committed suicide by

consuming aluminium phosphide tablets on 14th April, 2003.

A suicide note Ex. P.4 (G) found near her body was proved

to be written in her hand. In the suicide note, she

pointed out that she had taken tuitions from the accused,

Amit, at her residence in Rajgarh Colony and during that

period had developed a deep friendship with him leading to

physical relations as well. He also held out a promise of

marriage but later backed off and when she remonstrated

with him and reminded him of his promise he threatened to

expose and defame her in case she insisted on meeting him.

She stated in the suicide note that the accused continued

to have sexual relations with her but also compelled her to

have sexual relations with others as well. Frustrated and

feeling exploited, Sunita thus committed suicide.

2.2 The learned Additional Sessions Judge, Karkardooma

Courts, Delhi, by his judgment dated 21st April, 2008,

relying primarily on the dying declaration which was the

suicide note, convicted the accused under Section 306 of

the IPC and sentenced him to rigorous imprisonment for 10 S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 3

years with a fine of Rs.5,000/- and in default of payment

of fine, to undergo rigorous imprisonment for six months in

addition, and to imprisonment for life under Section 376 of

the IPC and a fine of Rs.5000/- and in default, to undergo

rigorous imprisonment for six months; both the sentences to

run concurrently.

2.3 An appeal was thereafter taken by the accused to the

High Court. The High Court vide the impugned judgment

held that a case under Section 306 was not made out and the

accused was entitled to acquittal under that provision

but on the question of the offence under Section 376

observed as under:

"We note that Sunita was aged 21 years and the appellant was aged 20 years when they indulged in a promiscuous relationship.

At the age of 21, Sunita was matured enough to understand the moral worth of her acts. She was conscious that by having repeated sex with the appellant she could become pregnant and hence the appellant had told her to take Mala-D tablets.

There is some participative act committed by Sunita. It is not a case where the appellant forced herself on Sunita. There is no evidence that the appellant compelled Sunita to have sex with the other person. We note that the Sunita has only written that the appellant was S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 4

compelling her to have sex with a third person. She has not written that she was actually made to have sex with a third person.

Considering the totality of the circumstances and noting that the appellant has suffered incarceration for five years and six months and would be entitled to remissions on account of his good conduct in jail; noting further that the appellant has redeemed himself in jail evidenced by the fact that he took his civil services examinations and qualified for being appointed to the Indian Administrative Services; we are of the opinion that the custodial sentence already suffered by the appellant would meet the ends of justice as a requisite punishment."

2.4 An order reducing the term of imprisonment for life

to that already undergone was, accordingly, made.

3. The present Special Leave Petition has been filed by

the National Commission for Women and the only plea raised

is that the reasons given by the High Court for reducing

the sentence awarded under Section 376 of the IPC were not

acceptable as a helpless girl had been cruelly exploited

and cheated by the accused. This matter came up for motion

hearing before a Bench of this Court and permission to file

the Special Leave Petition was granted and notice was

issued on 2nd April 2009. Respondent No.1, that is the

State of Delhi, has filed a counter affidavit, in effect

supporting the case of the Commission although it has been S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 5

conveyed to us by the learned Additional Solicitor General

that the State does not propose to file an application for

leave to appeal against the impugned judgment. The accused

has also been served by publication but has not chosen to

appear in response thereto.

4. Ms. Priya Hingorani, the learned counsel for the

petitioner, has forcefully argued that notwithstanding the

fact that the State had not filed an appeal in the present

matter an appeal at the instance of the Commission was

maintainable under the inherent powers of this Court more

particularly, as leave to file the Special Leave Petition

had already been granted by order dated 2nd April, 2009.

It has, accordingly, being submitted that it was not now

open to this Court to retract on the earlier order and

revoke the permission and to doubt the very

maintainability of the Special Leave Petition. On merits,

it has been submitted that the discretion exercised by the

High Court while reducing the sentence for the offence

under Section 376 of the IPC was not called for and merely

because the accused had, in the meanwhile, cleared the

Indian Administrative Services Examination was not a

relevant consideration. We are unable to accept the plea S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 6

raised by the learned counsel.

5. Chapter XXIX of the Code of Criminal Procedure deals

with "Appeal"(s). Section 372 specifically provides that

no appeal shall lie from a judgment or order of a Criminal

Court except as provided by the Code or by any other law

which authorizes an appeal. The proviso inserted by

Section 372 (Act 5 of 2009) w.e.f. 31st December, 2009,

gives a limited right to the victim to file an appeal in

the High Court against any order of a Criminal Court

acquitting the accused or convicting him for a lesser

offence or the imposition of inadequate compensation. The

proviso may not thus be applicable as it came in the year

2009 (long after the present incident) and, in any case,

would confer a right only on a victim and also does not

envisage an appeal against an inadequate sentence. An

appeal would thus be maintainable only under Section 377

to the High Court as it is effectively challenging the

quantum of sentence. Section 377 is reproduced below:

"377. Appeal by the State Government against sentence:(1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 7

sentence on the ground of its inadequacy--

(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than the Code, [the Central Government may also direct] the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy--

(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(3) When an appeal has been filed against the sentence on the ground of the inadequacy the Court of Session, or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."

6. This Section specifically provides that it is the

State Government or the Central Government which can issue

a direction to the Public Prosecutor to present an appeal

before the Court of Session or the High Court on the ground

of inadequacy of the sentence. This Section does not in any

manner authorize an appeal to the Supreme Court. We are, S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 8

therefore, unable to comprehend as to how the Commission

was entitled to maintain an appeal in the Supreme Court

against the order of the High Court. An appeal is a

creature of a Statute and cannot lie under any inherent

power. This Court does undoubtedly grant leave to the

appeal under the discretionary power conferred under

Article 136 of the Constitution of India at the behest of

the State or an affected private individual but to permit

anybody or an organization pro-bono publico to file an

appeal would be a dangerous doctrine and would cause utter

confusion in the criminal justice system. We are

,therefore, of the opinion that the Special Leave Petition

itself was not maintainable.

7. In Pritam Singh v. State AIR (37) 1950 SC 169 , this

Court while dealing with a criminal matter (after the grant

of leave under Article 136 of the Constitution) considered

the scope and ambit of this Article and observed:

"9. On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases on1y, and as far as possible a more or less uniform standard S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 9

should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist........It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against."

8. In P.S.R. Sadhanantham v. Arunachalm And Another (1980)

3 SCC 141, this Court was dealing with the locus standi of a

private person in this case a victim's brother, who was

neither a complainant nor a first informant in the criminal

case but had filed a petition under Article 136 of the

Constitution of India. This Court observed that the

strictest vigilance was required to be maintained to prevent

the abuse of the process of the Court, more particularly, in S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 10

criminal matters, and ordinarily a private party other than

the complainant, should not be permitted to file an appeal

under Article 136, though the broad scope of the Article

postulated an exception in suitable cases. It was spelt out

as under:-

"7. Specificity being essential to legality, let us if the broad spectrum spread out of Article 136 fills the bill from the point of view of "procedure established by law". In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Article 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 11

very terms of Article 136 that it shall be exercised by the highest judges of th land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity."

The Court then examined the implications of completely

shutting out a private party from filing a petition under

Article 136 on the locus standi and observed thus:

"Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation o criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of lis may well justify it. While "the criminal law should not be used as a weapon in personal vendettas between private individuals", as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression 'standing' is necessary for Article 136 to further its mission."

9. A reading of the aforesaid excerpts from the two

judgments would reveal that while an appeal by a private

individual can be entertained but it should be done

sparingly and after due vigilance and particularly in a case

where the remedy has been shut out for the victims due to

malafides on the part of the state functionaries or due to S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 12

inability of the victims to approach the Court. In the

present matter, we find that neither the State which is the

complainant nor the heirs of the deceased have chosen to

file a petition in the High Court. As this responsibility

has been taken up by the Commission at its own volition this

is clearly not permissible in the light of the aforesaid

judgments.

10. Ms. Priya Hingorani's submission with regard to the

reasons which weighed with the Court while reducing the

sentence must now be dealt with. Sub-section (1) of 376 of

the IPC provides for the imposition of a sentence of upto

ten years or life but the proviso says that the Court may

for adequate and special reasons, impose a lesser sentence.

We are of the opinion that the discretion exercised by a

Court, particularly a superior court, should not be lightly

interfered with. We have quoted from the judgment of the

High Court hereinabove and find that several factors had

been taken into account while imposing a lesser sentence

and it would be improper for us to interfere in the High

Court's discretion on the quantum of sentence except in

extraordinary circumstances. We do not see any such

circumstance. We, accordingly, dismiss the Special Leave

Petition as not maintainable. The permission to file the S.L.P. (Crl.) No. 2506 of 2009 REPORTABLE 13

Special Leave Petition granted vide this Court's order

dated 2nd April, 2009, is, accordingly, revoked.

.......................J. (HARJIT SINGH BEDI)

.......................J. (CHANDRAMAULI KR. PRASAD) New Delhi, July 23, 2010.