Delhi Administration vs Goverdhan Lal

Dua, J.—This is an appeal by the Delhi Administration directed from the order of acquittal passed by the learned Additional Sessions Judge, Delhi, acquitting Goverdhan Lal of the charge of theft of which he had been convicted by a learned Magistrate and sentenced to undergo rigorous imprisonment for one year. One of the distressing features of this case which I shall like to state at the outset is that a Bench of this Court while admitting the present appeal directed bailable warrants to the satisfaction of the District Magistrate u/s 427, Criminal Procedure Code, on 11th February 1963. A letter dated 4th September 1963 from the District Magistrate''s office to the Deputy Registrar of this Court shows that the warrants were duly executed. On 15th April 1964 the Deputy Registrar of this Court wrote to Shri Dilbagh Rai, Advocate, urging to him to defend amicus curiae Goverdhan Lal accused and a copy thereof was forwarded to the Superintendent, Central Jail, New Delhi, for information of the accused who is supposed to be still in custody. This would suggest that right from the time of his arrest in execution of warrants issued in pursuance of this Court''s order, he-has been in custody in the Central Jail, New Delhi. This state of affairs is far from happy or even satisfactory. It would have been desirable for the counsel for the Delhi Administration to have expedited the hearing of this appeal in view of the fact that the accused was in custody and no one had come forward to stand bail for him.

In so far as the merits of the case go, it appears to us that the accused was virtually caught red handed and the statements by the witnesses for the prosecution amply establish his guilt. Tulsi Ram, P.W. 1, had deposed that on 27th March 1962 at about 8-30 P.M. when he had come for lunch, he saw the accused coming down from the staircase with the witness''s durri and blanket in his hand. He identified these two articles to belong to him. On his raising an alaram, the dhobi, who was ironing the clothes outside, caught hold of the accused. Some persons gathered there and the police also arrived soon. There was no cross-examination by the accused. Mool Chand, P.W. 2, is the dhobi who has corroborated the statement by P.W. 1. On Tulsi Ram''s raising an alarm, this witness caught hold of the accused known as Gowardhan together with the durri and the blanket. This witness has also not been cross examined. Shri Lal Man, Head Constable, has proved the first information report exhibit P.A. The statement of the ac�cused was thereupon recorded and he answered every question put to him in the negative, also giving no reason for the case against him. He of course admitted having been caught outside, apparently meaning outside the house of the complainant.

It is obvious that there can hardly be a clearer case than this one. The learned Additional Sessions Judge somehow appears to have felt that a serious case like the present one should not have been entrusted to an Honorary Magistrate and may be under the influence of this feeling he has not attached to the prosecution evidence the importance it deserved. In my opinion, the learned Additional Sessions Judge was not right in holding the evidence to be insufficient for bringing home to the accused the offence charged.

The learned Additional Sessions also seems to me to have been not quite right in taking the view that the learned Magistrate had imposed an enhanced penalty on the appellant on account of his previous convictions. Section 3S0, Indian Penal Code, prescribes maximum imprisonment of either description for seven years and fine for an offence of theft mentioned therein. The sentence imposed by the learned Magistrate only extended to rigorous imprisonment for one year The fact that in view of the admitted previous convictions, the Court felt that a somewhat severer sentence, but within the limits laid down in section 380. Indian Penal Code, was called for, does not, in my opinion, attract the provisions of section 251 A(13), Criminal Procedure Code. This clause provides that in a case where a previous conviction is charged under the provisions of section 221(7), Criminal Procedure Code and the accused does not admit his previous conviction, as alleged in the charge, the Magistrate may. after he has convicted the accused under sub-section (5) or (12) of section 251-A, take evidence in respect of the alleged previous conviction, and shall record a finding thereon. In the present case, it is clear that the accused had admitted his previous conviction. Section 221(7), Criminal Procedure Code, provides that if the accused having been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment or to punishment of a different kind for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such a statement is omitted, it is open to the Court to add it at any time before the sentence is passed. In the case in hand, as the order of the learned Additional Sessions Judge itself shows, no charge u/s 75, Indian Penal Code, was framed and it is also the view of the Court below that the Magistrate had not intended to impose the enhanced punishment under the said section. The learned Additional Sessions Judge has expressed the view that the learned Magistrate had been prejudiced against the appellant because of his admission of his previous conviction. This perhaps is so because the learned Magistrate has stated that the case does not deserve a very lenient vie v and has, therefore, imposed a sentence of rigorous imprisonment for one year which was considered sufficient u/s 380, Indian Penal Code, which prescribes the maximum penalty of seven years. Resort to the provisions relating to the cases in which the Court considers to impose enhanced penalty because of previous convictions was not necessitated merely by the imposition of sentence of one year''s rigorous imprisonment in the case in hand; more so because the factum of previous conviction was not denied by the accused.

After going through the evidence, I find that the guilt of the accused has been fully brought home to him and the learned Additional Sessions Judge was in error in holding that the prosecution evidence to be contradictory and, therefore, insufficient to sustain the conviction of the accused. The prosecution witnesses have made statements in a very straight forward manner and the explanation at the accused, which can legitimately be considered by the Court, leaves no doubt in our mind that the commission of the offence has been fully established on the existing record. Merely because the accused was undefended and, therefore, the prosecution witnesses were not cross-examined, does not mean that the prosecution evidence should be looked at with unfounded suspicion, had the accused given some plausible explanation appealing to the Court''s mind either throwing some reasonable doubt on the veracity of the witnesses or otherwise suggesting some unfairness during the investigation or some motive for falsely implicating the accused, the circumstance of the accused being undefended might well have been given greater importance in evaluating the prosecution evidence. On the exiting record, however, I have not been able to find any factor which cast any adverse reflection on the prosecution case.

We have, therefore, no hesitation in allowing the appeal and setting aside the order of acquittal passed by the learned Additional Sessions Judge and in convicting the accused for an offence u/s 380. Indian Penal Cede.

In so far as the question of sentence is concerned, as already observed, this case has brought out a very distressing feature, in that, the accused against whose acquittal an appeal was filed in this Court has remained in custody without being released on bail at least from 19th July 1963 up to date. Had the State appeal been dismissed, the result would have been that in spite of the acquittal of the accused he would have remained in custody for a very substantial period of his sentence, This prominently brings out a very unsatisfactory feature in criminal administration of justice in Delhi. Liberty of the citizen is, in my opinion, one of the cherished objectives in this Republic and the State is expected to be careful in seeing that no citizen loses his liberty except in accordance with law and for the minimum period necessary. One would have expected the law officers of the Delhi State to have taken steps to expedite the hearing of this appear and, in my opinion, a mere request to this Court stating all the circumstances would have secured a priority for the hearing of this appeal It seems to be due to indifference towards the fate of the accused person that no attention has been paid to this aspect by the authorities and other officers concerned. Be that as it may, in our opinion, the sentence must be reduced to that already undergone and the accused must be set at liberty forthwith unless he is required in connection with some other case.

Before closing the judgment, I also consider it appropriate to point out that criticism of subordinate Courts in judgments deserves to be couched in moderate restrained and sober language and justice must be administered without emotion or passion which is compatible with its very nature : when emotion or passion comes in at the door justice would seem to fly out at the window. Anger or indignation however righteous unless tempered by cool and sober reflection may tend, even, unconsciously, to create an impression that the approach of the Court has perhaps not been objective and detached. Scales of justice, it may be remembered, should not even appear to be inclined.

For the foregoing discussion, this appeal is allowed but the sentence is reduced to that already undergone.

D.K. Mahajan, J.

I agree to the order proposed in this case and have nothing to add.