Delhi High Court
Mahavir Singh vs Union Of India (Uoi) And Ors. on 12 November, 2002
Author: Khan
Bench: B Khan, B Chaturvedi
JUDGMENT
Khan, J.
1. Petitioner, an ASI and BSF, was accused of
outraging the modesty of a constable's wife and charged
under Section 40 of the BSF Act for an act prejudicial
to good order and discipline of the Force. He was tried
by the Summary Security Force Court (SSFC). He
allegedly entered plea of guilty and was dismissed from
service on 15.5.1998. He filed a statutory complaint
against this which was rejected. he has now filed this
petition in which notice was issued limited to the issue
of the disproportionality of punishment awarded to him in
the facts and circumstances of the case.
2. This disproportionality of the quantum of
punishment is, therefore, the only issue to be dealt
with. It is no more res integra that judicial review
was exercisable even in cases of sentence awarded by the
court martial where it was found that it was shocking to
judicial conscience in the facts and circumstances of
the case or afflicted by perversity and irrationality.
Dealing with the doctrine of proportionality the
Supreme Court held in Ranjit Thakuar v. Union :-
"The question of the choice and quantum of
punishment is within the jurisdiction and
discretion of the court-martial. But the sentence
has to suit the offence and the offender. It
should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence
as to shock the conscience and amount in itself to
conclusive evidence of bias. The doctrine of
proportionality, as part of the concept of
judicial review, would ensure that even on an
aspect which, otherwise, within the exclusive
province of outrageous defiance of logic, then the
sentence would not be immune from correction.
Irrationality and perversity are recognised
grounds of judicial review. In the present case
the punishment is so strikingly disproportionate
as to call for and justify interference."
3. The test laid down by the Supreme Court in the
judgment (supra) still occupies the field though it has
been repeatedly emphasised in the later judgments that
the courts should refrain from interfering in the
sentence punishment on compassionate grounds or for
harshness except for ex-facie perversity or
irrationality. In Union v. R.K. Sharma , the Supreme Court said:-
"While exercising power under Article
226/227 of Article 32, the High Court or the
Supreme Court should not interfere with the
punishment merely because it considers the
punishment to be disproportionate. It is only in
extreme cases, which on their face show perversity
or irrationality that there can be judicial
review. Merely on compassionate grounds, a court
should not interfere."
4. From all this, it is clear that the sentence
awarded by the court martial can't be upset, modified or
reduced on compassion or for its harshness. It is only
in extreme cases where perversity or irrationality is
writ large on the sentence or where it is so
disproportionate as to shock the judicial conscience
where interference would be called for and warranted.
This would, therefore, depend on the facts and
circumstances of each case. Where facts disclosed that
the accused was awarded maximum punishment on a
rediculous charge as in Ranjit Thakur's case, the court
would interfere to balance the scales of justice.
5. In the present case, petitioner was charged of
outraging the modesty of a constable's wife and in the
absence of her husband and in a drunken state which was
treated as prejudicial to good order and discipline of
the Force. He was ordered to be removed from service
for this after trial. Given regard to the nature of the
charge and the requirements of discipline of an armed
Force, it does not appear to us that the punishment
awarded to petitioner was attended by any irrationality
or perversity or that it was so strikingly
disproportionate as to shock the judicial conscience.
We, accordingly, find no scope to interfere and,
therefore, dismiss this petition.
