Sikkim High Court
State Of Sikkim vs Lall Bahadur Rai on 30 October, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
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HIGH COURT OF SIKKIM
Record of Proceedings
Crl. A. No.14 of 2024
STATE OF SIKKIM APPELLANT
VERSUS
LALL BAHADUR RAI RESPONDENT
Date: 30.10.2024
CORAM:
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
For Applicant Mr. Yadev Sharma, Additional Public Prosecutor.
For Respondent Mr. Karma Thinlay, Senior Advocate.
Mr. Yashir N. Tamang, Advocate.
Mr. Zamyang Norbu Bhutia, Advocate.
Mr. Chetan Sharma, Advocate.
ORDER
1. The matter is to be taken up for hearing on Sentence today.
2. This Court in Paragraph 11(i) of the Judgment dated 28-10-
2024 had inter alia observed that the offence not being penetrative
sexual assault, would be one under Section 7 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter, "POCSO Act,
2012"), punishable under Section 8 of the same Act and thereafter
invoking provisions of Section 222(2) of the Code of Criminal Procedure,
1973 (hereinafter, the "Cr.P.C.") had convicted the Respondent of the
said offence.
3. In view of the age of the victim child, the correct provision
to convict the Respondent would be under Section 9(m) of the POCSO
Act, 2012, punishable under Section 10 of the same Act, which thereby
does not require invocation of the provisions of Section 222(2) of the
Cr.P.C. as charges framed against the Respondent were under Section
9(m) and Section 9(n) of the POCSO Act, 2012, along with Section 354
of the Indian Penal Code, 1860 (hereinafter, the "IPC").
4. It is now settled law that the High Court can exercise its
inherent jurisdiction under Section 482 of the Cr.P.C., both in relation to
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substantive and procedural matters, irrespective of the nature of the
proceedings. In Popular Muthiah vs. State represented by Inspector of
Police , the Supreme Court observed that power under Section 482 of
the Cr.P.C. is not trammelled by procedural restrictions and can be
exercised suo motu in the interest of justice, concurrently with the
appellate or revisional jurisdiction and no formal application is required
to be filed therefor. The Court acts ex debito justitiae to do real and
substantial justice for which it alone exists. It is also to be exercised
where it is absolutely necessary for serving the ends of justice and
overrides other provisions of the Cr.P.C. but cannot be exercised in
violation/contravention of a statutory power created under any other
enactment.
5. On the bed rock of the said principles propounded by the
Supreme Court and in order to secure the ends of justice, Paragraphs
11(i) and (ii) of the Judgment dated 28-10-2024 are replaced as
hereinbelow convicting the Respondent of the relevant offence;
"11. .................................................................................................
(i) The Respondent is convicted of the offence
under Section 9(m) punishable under Section 10 of the
POCSO Act.
(ii) He is acquitted of the offence under Section
9(n) of the POCSO Act. In view of the provision of Section
71 of the IPC, it is not necessary to convict the Respondent
under Section 354 of the IPC."
6. The same is pronounced in the open Court in the presence
of Learned Additional Public Prosecutor and Learned Senior Counsel for
the Respondent. Learned Senior Counsel for the Respondent has no
objection to the application of the correct provision of law.
2006 7 SCC 296
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7. In view of the above circumstance to ensure that no
prejudice is caused to the Respondent, the matter be posted for hearing
on Sentence later.
LATER: 8. Heard on Sentence.
9. It is submitted by Learned Senior Counsel for the
Respondent that the Respondent is aged about fifty-five years, has an
unemployed wife, one son working on ad hoc basis in the Government,
an unemployed son and his daughter lives separately. Thus, his family
is entirely dependent on the Respondent's earnings. He was working as
a Safaikarmachari in the School near his home and was earning a little
above ₹ 25,000/- (Rupees twenty five thousand) only, per month, from
which he was repaying two educational loans that he had availed of for
his children. That, these being the mitigating circumstances, the
minimum penalty prescribed by law, i.e., five years only be imposed on
the Respondent.
10. Learned Additional Public Prosecutor has no objection to the
submissions advanced and submitted that five years of imprisonment
would suffice to meet the ends of justice.
11. Having given due consideration to the submissions, I am of
the considered view that the ends of justice would be met by sentencing
the Respondent as follows; to undergo simple imprisonment of five
years for the offence under Section 9(m) of the POCSO Act, 2012,
punishable under Section 10 of the same Act and to pay a fine of ₹
1,000/- (Rupees one thousand) only, in default thereof to undergo
further simple imprisonment of one month.
12. Appeal disposed of accordingly.
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13. Copy of this Order be forwarded to the Learned Trial Court
for information along with its records.
14. A copy of this Order also be made over to the
Respondent/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority at the Central Prison, Rongyek, for
information and appropriate steps.
15. This Order shall form part of the Judgment dated 28-10-
2024.
Judge
30.10.2024
ds/sdl
