Barkat Khan And Ors vs State
2022 Latest Caselaw 5183 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 235/1993

Barkat Khan And Ors.

                                                                    ----Appellant
                                     Versus
State
                                                                  ----Respondent


For Appellant(s)           :     Ms. Yogita Mohnani
                                 Mr. Amitabh Acharya
For Respondent(s)          :     Mr. M.S. Bhati, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

07/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:

"It is, therefore, prayed that this Hon'ble court will be pleased to send for the record of the court below, peruse the same and after perusal, quash the convictions and sentences, acquit the accused or pass any other orders that this Hon'ble court deems fit and proper"

3. The matter pertains to an incident which occurred in the year

1991 and the present appeal has been pending since the year

1993.

(2 of 10) [CRLA-235/1993]

4. Learned counsel for the appellants submits that this Criminal

Appeal has been preferred against the impugned order,

23.06.1993 passed by the learned Sessions Judge, Balotra in the

Sessions Case No. 10/92, whereby the learned trial court

convicted the appellant, Barkat Khan under Sections 307, 458 and

323/34 IPC for 3 years R.I. and a fine of Rs. 2000/-, default of

payment of which he was ordered to further undergo 6 months

S.I.; 2 year R.I. and a fine of Rs. 500/- default of payment of

which he was ordered to further undergo 1 month's S.I.; and 1

month's S.I. respectively. Further, the other appellants were

convicted under Sections 307/34, 458, 323 IPC and sentenced to

two years R.I. and a fine of Rs. 1000/- each, default of payment of

which they were ordered to further undergo 3 months S.I, and 2

years R.I. and a fine of Rs. 500/- default of payment of which,

ordered to further undergo 2 month's S.I. And that the learned

trial court also directed that the aforementioned fine amount if

recovered, Rs.2000/- was to be paid to the injured party.

5. Learned counsel for the appellants further submits that the

sentence so awarded to appellants was suspended by this Hon'ble

Court, vide order dated 09.07.1993 in S.B. Criminal Misc. Bail

Petition No. 235/1993.

6. Learned counsel for the appellants also submits that the

appellant, Barkat Khan has undergone 34 days in custody out of

the 3 years sentence so awarded to him by the learned Court

below. And that, the remaining appellants, Maley, Nasia, and Walia

have undergone 5 days, 5 days, and 4 days in custody

respectively out of the 2 years sentence so awarded to them by

the learned Court below.

(3 of 10) [CRLA-235/1993]

7. Learned counsel for the appellants placed reliance on the

judgment rendered by the Hon'ble Apex Court in Surinder Singh

Vs. State (Union Territory of Chandigarh) 2022 (1) BLJ 366

wherein it was observed as under:-

"Appellant-Surinder Singh has laid challenge to the judgment dated 19th May 2010 of the High Court of Punjab & Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.

...We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the Accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record.

...The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited Under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence Under Section 27, without proving the

(4 of 10) [CRLA-235/1993]

misdemeanour Under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial. 31. In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction Under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act. ...Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors: a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction Under Section 307 Indian Penal Code, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 Indian Penal Code, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post-incident behaviour suggests that he is rational individual who is capable of responding to

(5 of 10) [CRLA-235/1993]

the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence. d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction."

8. Learned counsel for the appellant also submits that appellant

no. 1 Barkat Khan, has expired.

9. Learned counsel for the appellants, qua appellants No.2 to 4

submits that the medical record and the nature of injuries, as per

him, clearly indicate no intention to cause death, and thus, the

offence does not travel beyond Section 324 IPC. Learned counsel

also submits the finding arrived at by the learned trial court for

conviction of the appellants No.2 to 4 under Section 307 IPC was

faulty, as the same also did not match with the evidence on

record.

10. Learned counsel for the appellants, however, makes a limited

submission that the conviction of the appellants No.2 to 4 under

Section 307 IPC may be watered down to Section 324 IPC and the

(6 of 10) [CRLA-235/1993]

sentence awarded to the appellants No.2 to 4 may be substituted

with the period of sentence already undergone by them, as none

of the injuries were neither grievous nor on the vital parts of the

body of the victim.

11. Learned Public Prosecutor opposes the same.

12. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgment cited at the Bar.

13. In Amit Kapoor Vs. Ramesh Chander and Ors. (2012) 9

SCC 460, the Hon'ble Apex Court, with regard to the exercise of a

High Court's inherent powers under Section 482 Cr.P.C, observed

as under:-

"The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping

(7 of 10) [CRLA-235/1993]

between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do

(8 of 10) [CRLA-235/1993]

determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."

14. This Court is also conscious of the judgments rendered in,

Alister Anthony Pareira Vs. State of Maharashtra (2012) 2

SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC

678 wherein the Hon'ble Apex Court observed as under:-

Alister Anthony Pareira (Supra) "There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

Haripada Das (Supra) "...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone..."

15. In light of the limited prayer made on behalf of the

appellants No.2 to 4, and keeping in mind the aforementioned

precedent laws, the present appeal is partly allowed.

16. This Court, in line with the judgment rendered by the

Hon'ble Apex Court in Amit Kapoor (supra), finds that the

inherent powers of the High Court, under Section 482 Cr.P.C. may

(9 of 10) [CRLA-235/1993]

be exercised even in the revisional jurisdiction of the Court, and

that, the inherent powers of the Court under Section 482 Cr.P.C.

are of a wide amplitude and may be applied in the discretion of

the Court, owing to the facts and circumstances of a given case.

The caveat, as considered by the Hon'ble Apex Court, whether in

the case of an overlap of the powers under the two provisions

which would prevail, the Hon'ble Apex Court held that Section 397

could not defeat or limit powers conferred upon the High Courts

under Section 482. And therefore, this Courts finds that the

interference of this Court in the impugned order, owing to the

peculiar facts and circumstances in the present appeal, is

warranted.

17. Looking into the medical record of the case, this Court finds

that the nature of injury created a doubt as to whether there was

any intention of causing death, or causing attempt to murder. 10.1

The learned trial court, while establishing the making out of the

offence under Section 307 IPC was unable to balance the

applicability of Section 324 IPC vis-a-vis Section 307 IPC. The

benefit of doubt arising out of such imbalance has to go to the

accused, and thus, while interfering in the impugned judgment,

this Court deems it appropriate to replace the conviction under

Section 307 IPC with Section 324 IPC; the same is done while

deriving strength from the precedent law of Surinder Singh

(supra).

18. Accordingly, the present appeal is partly allowed, and while

maintaining the conviction under Sections 324 (after being

climbed down from Section 307 IPC), 458, 323 IPC of the

appellants No.2 to 4, as above, the sentence awarded to them is

(10 of 10) [CRLA-235/1993]

reduced to the period already undergone by them. The appellants

are on bail. They need not surrender. Their bail bonds stand

discharged. All pending applications stand disposed of. Record of

the learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

32-SKant/-

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