Madras High Court
K.C.Subramani (Died) vs State Rep.By on 22 December, 2021
Crl.R.C.No.1516 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.01.2022
Pronounced on : 09.02.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.1516 of 2013
1.K.C.Subramani (Died)
2.S.Vinayagam ... Petitioners
[ Impleaded as second petitioner as per order
of this Court in Crl.R.C.No.1516 of 2013
dated 22.12.2021]
Versus
1.State rep.by,
The Deputy Superintendent of Police,
Katpadi, Vellore District.
( Thiruvalam Police Station
in Crime No.306 of 2003)
2.Murugan
3.Krishnan ... Respondents
Prayer: Criminal Revision Petition is filed under Section 397
r/w 401 of Criminal Procedure Code, as against the Judgment dated
04.12.2006 in Spl.S.C.No.13 of 2005 made by the Learned Principal
District and Sessions Judge, Vellore (constituted as Special Court under
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989), in so far as the same imposed sentence of fine of Rs.200/-,
Rs.100, Rs.100/- and Rs.5000/- only for the respective charges for the
offences under Sections 447, 341, 294(b), 506(ii) of I.P.C., on the
respondents 2 and 3 herein, praying for enhancement of sentence.
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For Petitioners : Mr.S.Sathia Chandran
For Respondents : Mr.L.Baskaran, (for R1)
Govt., Advocate (crl.side)
: Mr.V.Karthikeyan (for R2 & R3)
ORDER
A. The Revision :
This Criminal Revision Case was originally filed by
Mr.K.C.Subramani, P.W.1/de-facto complainant in Spl.S.C.No.13 of 2015,
aggrieved by the Judgment of the Learned Principal District and Sessions
Judge, Vellore in Spl.S.C.No.13 of 2015, dated 04.12.2006, imposing the
sentence of only a fine of Rs.200/- each, for the offence under Section 447
3of I.P.C., in default to undergo, one week imprisonment; a fine of
Rs.100/- each, for the offence under Section 341 of I.P.C., in default to
undergo, one week imprisonment; a fine of Rs.100/- each, for the offence
under Section 294(b) of I.P.C., in default to undergo, one week
imprisonment; a fine of Rs.5,000/- each for the offence under Section
506(ii) of I.P.C., in default to undergo, three months imprisonment, and to
impose an appropriate sentence on the accused, who are guilty of the
offences.
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B. Remand by the Hon'ble Supreme Court of India :
2.The accused had paid their respective fine amounts and had
not preferred an appeal against the conviction and sentence. Originally, by
an order dated 24.10.2018, the Criminal revision was taken up by this
Court and the respondents 2 & 3/accused were not present. After
considering the case on merits the sentence was enhanced, imposing
imprisonment sentences for the offences proved. As against the order of
this Court the petitioner/accused preferred an appeal in
S.L.P.Crl.No.10306 of 2019. By order dated 29th November 2021, the
Hon'ble Supreme Court of India held that the action of this Court in
enhancing the sentence without the accused being represented by Legal
Aid Counsel is erroneous even if they had not engaged a counsel, and
remanded the matter back to this Court.
3.In the meanwhile, the original revision petitioner/
K.C.Subramani died and upon being furnished the particulars of the legal
heir, namely, his son Mr.S.Vinayagam, this Court impleaded him as the
second petitioner in the case. It is pertinent to state here that originally the
matter was before the Learned District and Session Judge, Vellore in
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Spl.S.C.No.13 of 2015 as the respondents 2 & 3/accused were also charged
for an offence under Section 3(1)(x) of the Scheduled Caste/Scheduled
Tribes (Prevention of Atrocities) Act and the Trial Court disbelieved the
case of the prosecution in respect of the said offence and acquitted the
respondents 2 & 3/accused of the said offences, however, no appeal is
preferred either by State or by P.W.1/de-facto complainant, or his legal
heirs as against the acquittal of the respondents 2 & 3/ accused in respect
of the said charges.
C. The Complaint & the trial :
4.On 06.11.2003, P.W.1/K.C.Subramani, went to Thiruvalam Police
Station, Vellore District and handed over a copy of the complaint dated
05.10.2003 along with the order of this Court in Crl.O.P.No.3667 of 2003
dated 23.10.2003, directing the respondent/Police, to consider the
complaint and register a case if offences are made out. In the complaint,
P.W.1 stated that he belonged to the scheduled caste, he was the owner of
the land in S.No.75/2. The owner of the adjacent land in S.No.75/2B viz.,
Kandhasamy gounder had encroached a portion of his land, therefore, he
had approached the Civil Court by way of O.S.No.616 of 1986 for
declaration and possession and the same was decreed in his favour on
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04.08.1999. Similarly, he had filed against one more person by name
Yelyonan, in respect of S.No.75/1 and he has surrendered the possession.
5.Pursuant to the decree against Kandhasamy gounder, an execution
petition was filed in which, possession was taken. On 05.10.2003 at 8.00
a.m., when he and his wife and his son were removing the vegetation/wild
growth and debris in their lands while making the bund, the sons of
Kandasamy viz., Murugan and Krishnan and some other persons came to
the spot and prevented them for carrying on their work and trespassed into
their land and attempted to remove the boundary stones and challenged
them by stating that the Order obtained from the Court will not bind them
and threatened them with dire consequences by mentioning their caste
name and he was scolded with extremely derogatory words and his wife
was also abused by using filthy and sexually abusive language and by
using her caste name and the accused also threw some stones on them. On
the said complaint a case in Crime No.306 of 2003 was registered by the
Sub-Inspector of Police, for the offence under Section 341, 447, 294(b)
and 506(ii) of I.P.C., read with Section 3(1) (x) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, P.W.11/
Anitha Husain, the Deputy Superintendent of Police, took up the case for
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investigation and laid a final report, proposing the respondents 2 &
3/accused guilty of the offences aforementioned.
6.The Learned Principal District and Sessions Judge, Vellore,
which is the Special Court under the Act, took the case on file in
Spl.SC.No.13 of 2015, furnished the copies to the accused as per Section
207 of Cr.P.C. Considering the submissions made by the Learned Public
Prosecutor and the Learned Counsel appearing for the accused and framed
charges under Section 447, 341, 294(b), 434, 506(ii) of I.P.C., and under
Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act. Upon questioning the respondents 2 & 3/accused, they
denied the charges and stood trial.
7.On behalf of the prosecution, the first informant,
Mr.K.C.Subramani, was examined as P.W.1, who spoke about the contents
of his complaint; his wife, the other victim viz., Vijaya as P.W.2, who
spoke about the acts of the respondents 2 & 3/accused abusing her by caste
name as well as in filthy language; one Yasodha, who is relative of P.W.1
and P.W.2./Vijaya, was the eye-witness for the incident was examined as
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P.W.3; One Subramani, who is again a relative to P.W.1 to P.W.2 is
another eye-witnesses of the incident was examined as P.W.4; One Mani,
who was sought to be examined as eye-witness, but, he turned as hostile as
P.W.5; One Gugan, witness of the Observation Mahazar as P.W.6, who
also turned as hostile; One Srinivasan, another witness to the Observation
Mahazar as P.W.7; One Parasuraman, Village Administrative Officer as
P.W.8, who spoke about the ownership of lands of various Survey
numbers; One Logasanjeevi, who was working as Tahisldhar as P.W.9,
who had issued the community certificate for P.W.1 and P.W.2; One
Palani, the then Sub-Inspector of Police, Thiruvalam Police Station, who
registered the First Information Report as P.W.10; One Anitha Hussain,
Deputy Superintendent of Police, who is the Investigating Officer as
P.W.11.
8.On behalf of the prosecution, a complaint given by P.W.1 was
marked as Ex.P-1; a copy of the order in Crl.O.P.No.36667 of 2003 was
marked as Ex.P-2; a certified copy of the Judgment in O.S.No.616 of 1986
on the file of the District Munsif Court, Gudiyatham was marked as Ex.P-
3; another complaint given by P.W.4/ Subramani before the Thiruvalam
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Police Station as Ex.P-5; the Observation Mahazar dated 07.11.2003 is
marked as Ex.P-6; the Seizure Mahazar of the boundary stone is marked as
Ex.P-7; the Citta, Adangal in respect of S.No.75/2A is marked as Ex.P-8;
another Citta, Adangal in respect of S.No.75/2A is marked as Ex.P-9; The
receipt issued by the Village Administrative Officer for payment of kist by
Ponnusamy is marked as Ex.P-10; the Community Certificate of P.W.1 is
Ex.P-11; the Community Certificate of P.W.2 is Ex.P-12; the community
certificate of Mr.Vinayagam, son of K.C.Subramani/de-facto complainant,
as Ex.P-13; the Community Certificate of the second respondent/first
accused is Ex.P-14; the Community Certificate of the third respondent/
second accused is Ex.P-15; The First Information Report in Crime No.306
of 2003 is Ex.P-16; the proceedings of the Superintendent of Police,
Vellore as Ex.P-17; the Rough Sketch as Ex.P-18. This apart, the
boundary stone was produced as M.O-1.
9.Upon being questioned about the material evidence and
adverse circumstances on record as per Section 313 of Cr.P.C., the accused
denied the same as false. However, no oral or documentary evidence was
let in on behalf of the defence. Under these circumstances, the Trial Court
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proceeded to hear the Learned Special Public Prosecutor for the
prosecution and the Learned Counsel appearing for the accused and by its
Judgment dated 04.12.2006 the Trial Court found that in view of the
Judgment of the Civil Court, it is clear that the land belongs to P.W.2 and
the counter-complaint given by P.W.1 that he had encroached his land is
incorrect. From Community Certificate, it is clear that P.W.1 and P.W.2
belonged to schedule caste and the respondents 2 & 3/accused belonged to
the Most backward caste. Before the Court P.W.1 to P.W.4 have cogently
deposed about the occurrence, therefore, since the respondents 2 &
3/accused entered into the lands belonging to P.W.1, the offence under
Section 447 is made out.
10.Similarly, from the evidence of P.W.1, P.W.2 & P.W.3, it is
clear that the accused have used obscene words, therefore the offence
under Section 294 (b) is made out. Since P.W.1 has been prevented from
the further movement, the offence under Section 341 is proved. However,
considering the earliest complaint in Ex.P-1 that specific caste name was
not mentioned, the Trial Court refused to believe the evidence of P.W.1 to
P.W.4 in respect of calling by caste name and acquitted the respondents 2
& 3/accused of the offence under Section 3(1) (x) of the SC/ST (POA)
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Act, 1989.
11.Similarly, the Trial Court disbelieved the evidence of the
prosecution that respondents 2 & 3/ accused have removed the boundary
stones and consequently acquitted the respondents 2 & 3/accused for the
offence under Section 434 of I.P.C. Further, upon considering the
complaint given by P.W.1 and the oral and documentary evidence of
P.W.1, P.W.2 and P.W.5, the Trial Court found that the respondents 2 & 3/
accused are guilty of the offence under Section 506(ii) of I.P.C., Upon the
said findings the Trial Court imposed only fine as the sentence as
mentioned in paragraph 1 above. Aggrieved by the quantum of sentence,
P.W.1/de-facto complainant has laid the present revision before this Court.
D. The Contentions in the Revision :
12.Heard Mr.S.Sathia Chandran, Learned Counsel for the
petitioners. After filing detailed written submissions and also producing
an additional typed set of papers containing the connected proceedings
relating to other criminal cases etc., between the petitioner and the
respondents 2 & 3/ accused and with their family members, the Learned
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Counsel took this Court through the Judgment of the Trial Court and the
evidence on record and submitted that in a case of this nature, even though
they have not preferred any appeal as against the acquittal of the
respondents 2 & 3/accused in respect of the offence under Section 3(1)(x)
of the SC/ST (POA), Act, would submit that it is clear case where P.W.1,
P.W.2 and their family members were victimised not only by way of
depriving of their property, even after obtaining valid decree from the
Civil Court, they were subjected to grave amount of mental trauma and
physical violence. But, the Trial Court, without considering the seriousness
of this case, in a casual manner without imposing any sentence of
imprisonment had imposed the fine amount alone in respect of proved
offences. This according to the Learned Counsel for the petitioner is
directly violative of the principles of sentencing enunciated by the Hon'ble
Supreme Court of India in State of Madhya Pradesh Vs. Suresh1 , more
specifically, by relying upon paragraph Nos.14 and 15, which is extracted
hereunder:-
“14. Proportion between crime and punishment is a
goal respected in principle, and in spite of errant
notions, it remains a strong influence in the
determination of sentences. The practice of punishing all
1 CDJ 2019
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serious crimes with equal severity is now unknown in
civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the
law only in recent times. Even now for a single grave
infraction drastic sentences are imposed. Anything less
than a penalty of greatest severity for any serious crime
is thought then to be a measure of toleration that is
unwarranted and unwise. But in fact, quite apart from
those considerations that make punishment unjustifiable
when it is out of proportion to the crime, uniformly
disproportionate punishment has some very undesirable
practical consequences.
15. After giving due consideration to the facts and
circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in
which a crime has been committed are to be delicately
balanced on the basis of really relevant circumstances in
a dispassionate manner by the court. Such act of
balancing is indeed a difficult task. It has been very
aptly indicated in Dennis Councle MCGautha v. State of
California: 402 US 183: 28 L Ed 2d 711 (1071) that no
formula of a foolproof nature is possible that would
provide a reasonable criterion in determining a just and
appropriate punishment in the infinite variety of
circumstances that may affect the gravity of the crime. In
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the absence of any foolproof formula which may provide
any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of
gravity of crime, the discretionary judgment in the facts
of each case is the only way in which such judgment may
be equitably distinguished.”
Thus, he would urge this Court to enhance and award maximum sentences
to the respondents 2 & 3/accused for the offences, in view of the above
pronouncement of law of the Hon'ble Supreme Court of India.
13.Opposing the said submissions, Mr.V.Karthikeyan, Learned
Counsel appearing for the respondents 2 & 3/accused would submit that
first of all in view of the amendment to Section 372 of the Code of
Criminal Procedure, the petitioner/victim has the right to file an appeal and
therefore, the revision is not maintainable. In respect of his submissions,
he would rely upon the Judgment of the Hon'ble Supreme Court of India,
in Joseph Stephen and Ors. Vs. Santhanasamy and Ors.,2. Further, the
Learned Counsel would submit that even assuming that the revision is
treated as an appeal by this Court, as per the aforementioned Judgment of
the Hon'ble Supreme Court of India, or even if the revision is taken up as
2 2022
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Crl.R.C.No.1516 of 2013
such for enhancement of sentence, he would submit that inspite of the fact
that the respondents 2 & 3/accused have paid the fine and did not file any
appeal against the conviction, will still be entitled to canvass that they are
innocent and that the offences alleged by the prosecution are not made out
and that they are entitled to the acquittal from this Court. It is the
submission of the Learned Counsel that this is the case where P.W.1 and
his family members were involved in repeatedly lodging false cases under
SC/ST (POA)Act and on an earlier occasion, they were acquitted by the
Trial Court.
14. He would further submit that as a matter of fact, a subsequent
complaint has also been given by them. He would submit that even taking
the evidence of P.W.1, P.W.2 and P.W.3 on its face value, there is no
evidence on record for: a) trespass b) for wrongful restrain, c) for the
offence under Section 294(b) of I.P.C., therefore, he would submit that
straight away the respondents 2 & 3/accused are entitled for acquittal in
respect of the said offences.
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15.As far as the offence under Section 506(ii) of I.P.C., is
concerned, it is the submission of the Learned Counsel that mere uttering
of the words “ I will kill you” is not enough for making out the offence
under Section 506(ii) of I.P.C. The threat should be serious, impending and
real and given the nature of the evidence, especially, when all the other
offences in the complaint are being disbelieved, the respondents 2 &
3/accused are entitled for acquittal for the offence under Section 506(ii) of
I.P.C., also.
16.In support of his submissions, the Learned Counsel would
rely upon the Judgment of this Court in Rajan Vs. State, represented by
the Inspector of Police, Central Crime Branch, Thiruppur3, by relying on
the paragraph Nos.10 & 11, which are extracted hereunder:-
“10.In a similar case, the Punjab & Haryana High
Court quashed the proceedings in repsect of the offence
under Section 506(ii) of IPC in a case in Usha Bala V.
State of Punjab (P&H), 2002 (2) C.C.Cases 320 (P&H),
that,-
“Empty threats does not prima facie mean
that the vcase u/S. 506, IPC is made out against the
Petitioner. Hence, in face no case is made out
3 (2008)
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Crl.R.C.No.1516 of 2013
against the Petitioner.
Consequently, FIR No.313 dated
15.7.1999 u/S. 406/498-A, IPC of police Station,
Sadar, Patiala is quashed qua the Petitioner only.”
11.It is seen even in the instant case, except a
vague and bald allegation of criminal intimidation, the de
facto complainant has not stated that there was any threat to
his life or sought for any police protection. Therefore, this
Court is of the considered view that even the offence under
Section 506(i) I.P.C is not maintainable”
And he would submit that in view of the above, the offence under Section
506(ii) of I.P.C., is not made out.
17.The Learned Counsel, further relied upon the Judgment of the
Hon'ble Supreme Court of India in Manik Taneja and Another Vs. State
of Karnataka and Another4, wherein it was held as follows in paragraphs
Nos.11 & 12 :-
“11.Section 506 IPC prescribes punishment for the
offence of criminal intimidation. “Criminal intimidation” as
defined in Section 503 IPC is as under:-
4 (2015)
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"503.Criminal intimidation.—Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one
in whom that person is interested, with intent to
cause alarm to that person, or to cause that person
to do any act which he is not legally bound to do, or
to omit to do any act which that person is legally
entitled to do, as the means of avoiding the
execution of such threat, commits criminal
intimidation.
Explanation.—A threat to injure the reputation of
any deceased person in whom the person threatened
is interested, is within this section."
A reading of the definition of “criminal intimidation” would
indicate that there must be an act of threatening to another
person, of causing an injury to the person, reputation, or
property of the person threatened, or to the person in whom
the threatened person is interested and the threat must be
with the intent to cause alarm to the person threatened or it
must be to do any act which he is not legally bound to do or
omit to do an act which he is legally entitled to do.
12.In the instant case, the allegation is that the
appellants have abused the complainant and obstructed the
second respondent from discharging his public duties and
spoiled the integrity of the second respondent. It is the
intention of the accused that has to be considered in
deciding as to whether what he has stated comes within the
meaning of “criminal intimidation”. The threat must be with
intention to cause alarm to the complainant to cause that
person to do or omit to do any work. Mere expression of any
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words without any intention to cause alarm would not be
sufficient to bring in the application of this section. But
material has to be placed on record to show that the
intention is to cause alarm to the complainant. From the
facts and circumstances of the case, it appears that there
was no intention on the part of the appellants to cause alarm
in the mind of the second respondent causing obstruction in
discharge of his duty. As far as the comments posted on
Facebook are concerned, it appears that it is a public forum
meant for helping the public and the act of the appellants
posting a comment on Facebook may not attract ingredients
of criminal intimidation in Section 503 IPC.”
18.Therefore, he would submit that in the instant case also even
though the words are re-produced, the evidence available on record are not
suffice to hold that there was actually criminal intimidation. The Learned
Counsel also relied upon the Judgment of the Hon'ble Supreme Court of
India in Parminder Kaur alias P.P.Kaur alias Soni Vs. State of Punjab5,
by relying upon paragraph No.26, which is reproduced hereunder:-
“ V. Charge of criminal intimidation
26.Proving the intention of the appellant to cause
alarm or compel doing/abstaining from some act, and not
mere utterances of words, is a prerequisite of successful
5 (2020)
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conviction under Section 506 IPC [Manik Taneja v. State of
Karnataka, (2015) 7 SCC 423, para 12 : (2015) 3 SCC (Cri)
132] . The trial court has undertaken no such separate
analysis or recorded any finding on this count, thus calling
into question the conviction for criminal intimidation.
Further, the nature of this charge is such that it is a
derivative of the main charge of “procuration of minor
girls”. Given the facts of this case where the common
testimony of PW 1 on both charges has been doubted, it
would be unwise to rely upon it as the sole piece of evidence
to convict the appellant for criminal intimidation without
any other corroboration [Kamij Shaikh v. Emperor, 1946
SCC OnLine Pat 182 : AIR 1948 Pat 73, para 5]. ”
Therefore, he would contend that when the Court disbelieves/acquits the
accused for the other offences, it would be unwise to rely upon the sole
piece of evidence and convict the accused for criminal intimidation alone.
Therefore, he would submit that even in this revision filed by the petitioner
/ P.W.1, this Court should acquit the accused of all the offences.
19.Mr.L.Baskaran, Learned Government Advocate (Crl.side)
appearing for the first respondent would submit that the prosecution has
proved the offences beyond any reasonable doubt and in the absence of
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appeal by the respondents 2 & 3/accused persons, the submissions of the
Learned Counsel for the respondents 2 & 3/accused need not be
considered.
20. In reply to the submissions made by the Learned Counsel for
the respondents 2 & 3/accused, Mr.Sathia Chandran, Learned Counsel for
the petitioner would submit that the respondents 2 & 3/accused have
accepted the sentences and paid the fine amount, the principles enshrined
under Section 115 of the Evidence Act, are applicable. Therefore, the
respondents 2 & 3/accused should be estopped from pleading acquittal.
This apart, he would submit that the principles containing in the sub-
section 4 of Section 401 of Cr.P.C., would be equally applicable in this
case, since the petitioners are pleading for acquittal in the revision without
filing an appeal, when the appeal remedy is available to them. Therefore,
he would submit that the contention of the Learned Counsel appearing for
the respondents 2 & 3/accused should not be accepted.
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E. The Questions :
21.I have considered the rival contentions of the Learned
Counsel on either side. I have gone through the material evidence on
records and the Judgment of the Court below. Upon considering the
submissions, the following questions arise for determination in this
criminal revision:-
i) Whether or not the revision is filed by the
victim/P.W.1 is maintainable, in view of the amendment to
Section 372 of Cr.P.C.,?
ii) Whether in the revision filed by the
victim/P.W.1 for enhancement of sentence, the Court can
consider the plea of the accused for acquittal in the absence
of any appeal filed by the accused persons in this case?
iii) If so, whether the findings of the Trial Court
in respect of guilt of the offences under Section 447, 341,
294(b) and 506(ii) of I.P.C., requires interference by this
Court?
iv) Whether if the accused is guilty of the above
offences, whether the sentencing by the Trial Court is
proper and requires enhancement?
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Question No.1:
22.After filing of this criminal revision, in the year 2007, by
Central Act 5 of 2009, a proviso was added to Section 372 of Cr.P.C.,
which reads as follows:-
“Section 372 : No appeal to lie unless otherwise
provided. -
No appeal shall lie from any Judgment or Order
of a Criminal Court except as provided for by this Code or
by any other law for the time being in force:
[Provided that the victim shall have a right ot
prefer an appal against any order passed by the Court
acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily lies against
the Order of conviction of such Court.] 1.Ins.by Act 5 of
2009, Section 29 (w.e.f. 31.12.2009]”
It may be seen that the proviso is very clear and categorical that it accords
to the victim right to prefer the appeal;
(i) against the order of acquitting the accused;
(ii) convicting for lesser offenses; and
(iii) Thirdly, for inadequate compensation.
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Therefore, on plain reading of the said proviso, it is clear that it does not
provide an appeal for enhancement. The Judgment of the Hon'ble Supreme
Court of India relied upon by the Learned Counsel for the respondents 2 &
3/accused in Joseph Stephen and Ors. Vs. Santhanasamy and Ors., is an
authority for proposition that as against the order of acquittal, an appeal is
under Section 372 of Cr.P.C., therefore, in view of Section 401(4) of
Cr.P.C., when there is appeal remedy, without filing an appeal, the revision
is not maintainable and if appeal and revision are to be filed in the High
Court itself, the High Court has to first pass an order treating the the
revision as an appeal under Section 401(5) of Cr.P.C., without which it
cannot entertain the revision.
23.On the other hand, the Hon'ble Supreme Court of India, in
Parvinder Kansal Vs. State of NCT of Delhi and Another 6, while
considering the proviso to Section 372 of Cr.P.C., has held that the right of
appeal of the victim is confined to only the above three eventualities and
the victim has no right to file an appeal on the ground of inadequate
sentence. It is useful to extract paragraph No.10 of the said Judgment,
which reads hereunder:-
6 2020
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“10.A reading of the proviso makes it clear that so far
as victim's right of appeal is concerned, same is restricted
to three eventualities, namely, acquittal of the accused;
conviction of the accused for lesser offence; or for
imposing inadequate compensation. While the victim is
given opportunity to prefer appeal in the event of
imposing inadequate compensation, but at the same time
there is no provision for appeal by the victim for
questioning the order of sentence as inadequate, whereas
Section 377, Cr.PC gives the power to the State
Government to prefer appeal for enhancement of sentence.
While it is open for the State Government to prefer appeal
for inadequate sentence under Section 377, Cr.PC but
similarly no appeal can be maintained by victim under
Section 372, Cr.PC on the ground of inadequate sentence.
It is fairly well settled that the remedy of appeal is
creature of the Statute. Unless same is provided either
under Code of Criminal Procedure or by any other law for
the time being in force no appeal, seeking enhancement of
sentence at the instance of the victim, is maintainable.
Further we are of the view that the High Court while
referring to the judgment of this Court in the case of
National Commission for Women v. State of Delhi (2010)
12 SCC 599 has rightly relied on the same and dismissed
the appeal, as not maintainable.”
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Therefore, I hold that there is no provision to file an appeal for
enhancement of sentence, therefore, only a revision is maintainable and the
present revision is in order.
Question No.2:
24.To consider the question as to whether it will be open for the
accused and the High Court to consider the plea of acquittal of the offence
complained of in the revision filed by the victim / P.W.1 for enhancement
of sentence, when the accused have paid the fine and have not chosen to
file any appeal, firstly, it is the contention of the Learned Counsel
appearing on behalf of the petitioner that by the act of the accused, paying
a fine and not filing an appeal, it should be deemed that they have accepted
the verdict and therefore, by virtue of Section 115 of the Evidence Act,
1872, on the principles of estoppel they must be precluded in contending
otherwise. I reject this contention for two reasons:- (i)As stated by the
Hon'ble Supreme Court of India, in the above Judgment of Parvinder
Kansal Vs. State of NCT of Delhi and Another case, remedies of appeal,
revision etc., are creatures of the statutes. Therefore, one has to look into
the scheme of the statute providing the remedies of appeal or revision and
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decide and Section 115 viz., estoppel being a rule of evidence or as a rule
of prudence have no play in the matter; (ii) Secondly, even in the proviso
under Section 357(2) Cr.P.C., payment of fine is mandatory before the
filing of an appeal and such payment of fine cannot be taken as a conduct
of the accused of admitting the verdict. In a given case, even though a
person may be aggrieved by the finding of guilt may not choose to file an
appeal considering the only fine is imposed as punishment. But, however,
once the State or the victim seeks to enhance the punishment, he may
choose to canvas the finding of the guilt.
25.Now, coming to the scheme of the Code of Criminal
Procedure, Section 397 provides that the High Court or any Sessions Court
may call for and examine any proceedings before any inferior Criminal
Court within its local jurisdiction for the purpose of satisfying itself or
himself as to the correctness of legality or priority of any finding or
sentence or order recorded by or passed and as to the regularity of any such
inferior Court.
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26.Section 401 of Cr.P.C., provides that in the case of any
proceedings the record which has been called by itself or which otherwise
comes to its knowledge, the High Court may in its discretion exercise any
of the powers of the Court of appeal under Sections 386, 389, 390, 391 of
Cr.P.C., there are only three embargoes in Section 401(2)(3)(4) of Cr.P.C.,
whereby,
(i) Firstly, sub-section 2, no order can be made to the prejudice
of the accused unless he has had an opportunity of being heard either
personally or by pleader in his own defence.
(ii) The second embargo is that in exercise of power of revision,
the High Court cannot convert acquittal into one of conviction.
(iii) The third embargo is that if an appeal lies against the order
under revision and no appeal is filed, revision is not maintainable.
Sub-section (5) of 401 also vests the power of the High Court that in a
given case, if a person has to file an appeal to the High Court and if he has
erroneously filed a revision, the High Court can treat the Revision as an
appeal. Thus, the powers exercisable in the revision are the powers
exercisable by the Appellate Court . Therefore, as per Section 386(c) of
Cr.P.C., in an appeal for an enhancement of a sentence, the High Court can
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reverse the finding and sentence and acquit or discharge the accused or
order him to be retried by a Court competent to try the offence.
27.The above being the statutory provision, let us consider the
precedents on the subject. As early as in the year 1955, the Hon'ble
Supreme Court of India, in the case of Pilot U.J.S. Chopra Vs. State of
Bombay9, held that it is a well-established position in law that during the
hearing of the notice for enhancement of sentence, the accused will have
the right also to show-cause against his conviction. But, it has to be noted
that the said judgment of the Hon'ble Supreme Court of India is based on
Section 439(6) of the old Cr.P.C., which read as follows:-
“ Notwithstanding anything contained in this section,
any convicted person to whom an opportunity has been
given under sub-section (2) of showing cause why his
sentence should not be enhanced shall, in showing cause, be
entitled also to show cause against his conviction.] ”
However, the Original Section 439 of Cr.P.C., was substituted
by the Amending Act to the old code, the following was the
recommendation of the 41st Report of Law Commission, based on
which the provision was amended:
9 1955
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“32.13. Sub-section(6) of section 439 says that a
person required to show cause why his sentence should not
be enhanced is entitled to show that his conviction is
unsustainable although he may not have appealed against
his conviction. The principle underlying this rule is sound;
but as we are separately providing for “enhancement of
sentence” through an appeal,3 this sub-section would be
redundant, and we, therefore, propose to omit it.
There was a suggestion4 that the High Court
should have power under section 439 to convert an order
of acquittal into one of conviction. We do not think that
that would be at all proper. An order of acquittal is, on
appeal, capable of being altered to an order of conviction 5,
and that is sufficient for dealing with erroneous acquittals.
No other change is necessary in the scheme of
revisional powers. [3.See para 31.39 to 31.43 above. 4.Home
Ministry File No.F.27/3/55-Judl, II, App.1, Item 76 (Suggestion
of the Inspector General of Police, Orissa). 5.Section 417.] ”
Thereafter, when the new code came into force, as stated above, Section
401 provided for the powers exercisable by the appellate court.
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28.Considering the new provisions as such, the Allahabad High
Court in Hardeep Singh Vs. State of Uttar Pradesh7 had held that if even
though the Revision was admitted on the point of sentence only, but, on
account of technical defect pointed out, the conviction cannot be sustained.
Hence, the Court is bound to interfere with the conviction. In Deo Narain
Mandal Vs. State of U.P8, the Hon'ble Supreme Court of India opined
since notice of enhancement of sentence issued, it is but proper in law that
the Court should hear the accused on merits of the case, also even the
accused had not pressed his appeal on merits before the High Court in that
case, as a matter fact, the accused had preferred an appeal against reduced
conviction before this Court. It is useful to extract paragraph No.5 of the
judgment which is hereunder:-
“5.Not being satisfied with the said reduced
conviction, the appellant has preferred this appeal. When
this appeal came for preliminary hearing, this Court on 8-
8-2003, while issuing notice on the SLP also issued notice
to the appellant asking why the sentence awarded by the
High Court should not be enhanced. Since the High Court
has recorded that the appellant has not pressed his appeal
on merits in the ordinary course, we would have accepted
that statement recorded by the High Court and would have
7 1991 SCC Online All 195 : (1991) 28 ACC 250 (1)
8 (2004) 7 SCC 257
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dismissed the appeal without going into the question on
merits. However, since there is a notice in enhancement of
the sentence by this Court, it is but proper in law that we
should hear the appellant on merits of the case also.”
Therefore, it is clear that even though the Revision is filed by P.W.1/victim
for enhancement of sentence while showing cause for the sentence should
be enhanced, the accused is entitled to show cause as to how the
conviction is also unsustainable and how he is entitled for acquittal.
29.Mr.S.Sathia Chandran, Learned Counsel for the petitioner
would make yet another objection basing on the Sub-Section(4) of 401 of
Cr.P.C., that if they did not file an appeal they could not have filed a
revision and therefore, he should not be allowed to plead for acquittal in
the revision. This contention is not acceptable, because Section 401(4) of
Cr.P.C., only prohibits the filing of revision, without filing an appeal. It
does not in any manner curtail the power of the High Court to deal with the
revision and the right of the accused to show cause against the conviction
as such is not taken away by this provision.
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30.For all the above reasons, I answer the question that in the
revision is filed by the victim/de-facto complainant for enhancement of
sentence, the accused, who have not filed any appeal are entitled to show
cause as to how the conviction itself is erroneous and the High Court will
be well within its powers to consider the said plea and grant acquittal /
discharge or to order re-trial as the case may be, but, however in tune with
the principles of interference in exercise of the revisional jurisdiction.
Question No.3:
31.Now, coming to the plea of the respondents 2 & 3/accused
canvasing the correctness of the conviction in respect of the various
offences by the Trial Court, first, P.W.1 has deposed that after the
Judgment in O.S.No.616 of 1986 when they were working on their land,
the accused were standing on the public road and shouting at him,
mentioning his caste name, and also threatening to kill him. P.W.2 has
deposed that the accused removed the boundary stone and attempted to
throw the same at them and using caste name and also using filthy
language the accused abused them. The same is repeated by other
witnesses P.W.3 and P.W.4 and they also had deposed that even while
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coming on the road, the accused had threatened by using caste name and
threatening to eliminate P.W.1 and P.W.2. On the strength of the above
evidence, by taking the evidence in Chief as correct, even without
considering the defence of the accused about the falsity of the evidence ,
on the face of it, there is no evidence for criminal trespass. Similarly, there
is no evidence at all for wrongful restraint. Therefore, the conviction by
the Trial Court as well as the First Appellate Court for the offences under
Section 447, 341 are absolutely unsustainable.
32.Coming to the submissions in respect of the offence under
Section 294(b) of I.P.C., the Learned Counsel appearing for the
respondents 2 & 3/accused would submit that firstly, except for the victims
themselves and other relatives, who are all interested witnesses, there was
no other public person in the place of occurrence, therefore, the offence
under Section 294(b) of I.P.C., is not made out. The abuse should be by
using sexually abusive / obscene words. In this case, P.W.1 has not
mentioned of use of any other words except the caste name and only P.W.2
has mentioned two sexually obscene/filthy words. In this regard,
P.W.11/the Investigating Officer has been cross-examined in which, he has
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stated as follows:-
“xxxx xxxxx, xxxxx xxxxxx vd;W rhl;rp tp$ahit
jpl;oajhf vd; tprhuizapy; brhy;ytpy;iy/ xxxx, xxxx, xxx xxxx
vd;w thh;j;ijfs; vd; tprhuizapy; brhy;ytpy;iy/”
Therefore, when the contradiction is clearly brought on record and when
P.W.1 and P.W.2 have not stated about the usage of any obscene words in
their 161 Statements, which is brought on record of cross-examination of
the Investigating Officer, the Trial Court as well as the First Appellate
Court simply brushed aside this material contradiction and therefore, the
conviction for the offence under Section 294(b) is also unsustainable.
33.Now, coming to the offence under Section 506(ii) of I.P.C.,
the threat made by the respondents 2 & 3/accused has been consistently
spoken P.W.1, P.W.2 and P.W.3 and it is also contained in the complaint
/Ex.P-1. The contention of the Learned Counsel appearing for the
respondents 2 & 3 /accused firstly is that empty threats should not be taken
into account as intimidation. In this regard, the wholesome reading of the
evidence, considering the background of the case, there is boundary
dispute between the parties and that there are connected Civil and Criminal
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proceedings between the parties and when there is an order of possession
in the Execution Petition and when P.W.1 and P.W.2, attempted to remove
the vegetation/wild growth, when the accused persons in an aggressive
manner approaching from the road side uttered these words, it cannot be
considered as empty threat, as there is an attempt attempt to threaten the
petitioners to omit to do the act which they are legally entitled to do and
there is impending threat of person as well as to the property and therefore,
it would definitely prevent PW-1 & PW2 from doing the acts which they
were doing and therefore, as held by the Hon'ble Supreme Court of India in
the Judgment cited by the Learned Counsel appearing for the respondents
2 & 3/accused viz., in Manik Taneja and Another Vs. State of Karnataka
and Another case in paragraph No.11 as extracted above, the facts and
circumstances of the case would amount to criminal intimidation.
34.The alternative submission of the Learned Counsel for the
respondents 2 & 3/accused is that by relying upon the Judgment of the
Hon'ble Supreme Court of India in Parminder Kaur alias P.P.Kaur alias
Soni Vs. State of Punjab case, thereby, pleading that once the evidence
and the testimony of P.W.1 is doubt in respect of the other charges, it
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would be unwise to rely upon the same evidence for a conviction for the
offence under Section 506(ii) of I.P.C. But, it may be seen from the
paragraph No.26 as extracted above itself, that the position may not be
same, if there is corroboration and if the matter has been considered
independently. Thus, this whole case is about the intimidation and the
other offence viz., Section 3(1)(x) of the SC/ST (POA) Act, by using caste
name is disbelieved only to the extent that caste words were not
mentioned in the First Information Report, when the complaint was given.
Therefore, in the facts of this case, when P.W.1 and P.W.2/victims
evidence is corroborated by P.W.3 and P.W.4 and the evidence of
P.W.8/the Village Administrative Officer regarding the ownership of the
various Survey numbers of the lands, therefore, the action of the accused
was to intimidate the PW-1 and his family members from entering or
cultivating the land in their possesion. Therefore, offence under Section
506(ii) of I.P.C., is made out and therefore, I hold the conviction of the
respondents 2 & 3/accused for the said offence is in order.
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Question No. IV.
35.Therefore, now to consider the sentence to be imposed for the
offence under Section 506(ii) of I.P.C., the Learned Counsel for the
petitioner had submitted that imposing of fine of Rs.5,000/- alone in
respect of the offence of the criminal intimidation will not satisfy the
dictum of the Hon'ble Supreme Court of India in the reported Judgment of
State of Madhya Pradesh Vs. Suresh, mentioned above. Considering the
theory of proportionality, submissions made by the accused relating to the
similar complaints already and subsequently made, considering the gravity
and nature of the offence, I am inclined to enhance the punishment in
respect of the offence under Section 506(ii) of I.P.C. It is seen that the
respondents 2 & 3/accused, were in prison for a period of 28 days after the
enhancement of sentence was made earlier and the accused were taken to
prison on 18.10.2019 and were released on bail by the Hon'ble Supreme
Court of India by order dated CMP.No.5621 of 2019 in SLP.Crl.No.39205
of 2019, thereafter, were released from jail on 15.11.2019, I am inclined to
impose the period undergone as the substantive sentence for the said
offence under Section 506(ii) of I.P.C.
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36.In the result, the Criminal Revision is disposed off in the
following terms :-
(i) The Judgment of the Learned Principal Sessions Judge,
Vellore in Spl.S.C.No.13 of 2015 dated 04.12.2006, is set aside in as much
as it relates to the finding of the guilt of the respondents 2 & 3/accused in
respect of the offence under Section 447, 341 and 294(b) of I.P.C., and the
respondents 2 &3/accused are acquitted of the said offenses. The fine
amounts paid by them in respect of the said offences be refunded to them.
(ii) The Judgment of the Learned Principal Sessions Judge,
Vellore in Spl.S.C.No.13 of 2005 dated 04.12.2006 is confirmed, in as
much as it finds that the respondents 2 & 3/accused guilty for the offence
under Section 506(ii) of I.P.C. However, the sentence in respect of the
said offence is modified as imprisonment for the period already undergone
by the respondents 2 & 3/accused and sum of Rs.5,000/- each.
09.02.2022
Index : Yes/No
Speaking/ Non-Speaking order
klt
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To
1.The Principal District and Sessions Judge, Vellore.
2.The Public Prosecutor, High Court of Madras.
3.The Deputy Superintendent of Police,
Katpadi, Vellore District. (Thiruvalam Police Station)
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D.BHARATHA CHAKRAVARTHY. J.,
klt
Pre- Delivery Order in
Crl.R.C.No.1516 of 2013
09.02.2022
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