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PETITIONER: CHANDRAKANT PATIL, SHYAM K. GARIKAPATTI, SUBHASH SINGH THAKU

       Vs.

RESPONDENT: STATE THROUGH CBI, GOVT. OF NATIONAL CAPITAL TERRITORY OF DE

DATE OF JUDGMENT:       02/02/1998

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 445 OF 1997                             AND               CRIMINAL APPEAL NO. 447 OF 1997                             AND               CRIMINAL APPEAL NO. 486 OF 1997                       J U D G M E N T Thomas J.      After concurring  with the  finding that  first accused Subhash Singh Thakur, Second accused Jayendra. Thakur @ Bhai Thakur; third  accused Shyam  Kishore Garikapati  and fourth accused Chandrakant  Patil are  guilty of  the offence under Section   5  of  the  Terrorist  and  Disruptive  Activities (Prevention  )  Act,  1987,  for  short  ’  the  TADA’,  and confirming the  confirming the conviction of that offence we felt that  the sentence of rigorous imprisonment for 5 years awarded by  the trial  court to  each of them is inadequate. Hence we  issued notice  to them  on the proposal to enhance the sentence.  The said  accused, in  reply to  the  notice, filed detailed  written submission.  We heard  the arguments addressed by  the senior  counsel on behalf of those accused and also  Shri V.  R. Reddy,  Addl.  Solicitor  General  who argued for the Central Bureau of Investigation.      We may  state at  the outset that we would not, at this stage, review  the finding  regarding the  conviction of the offence under  Section 5 of TADA for the obvious reason that we confirmed  the finding  after considering  in detail  the contentions  raised   by  the   accused  and  the  elaborate arguments addressed by the learned counsel. Further, we have already dismissed  the petitions  filed for  review  of  the findings arrived at by us adverse to those accused. Shri Ram Jethmalani, learned  senior  counsel  made  an  endeavor  to convince us  that the accused have a right for re-canvassing the aforesaid finding on a parity of the principle envisaged in Section  referred to hereinafter as ’ the present Code’). According to  the sub-ground  of its  inadequacy,  the  High Court shall  not enhance  the enhance except after giving to the accused a reasonable opportunity of sowing cause against such enhancement  and while  showing cause,  the accused may plead  for  his  acquittal  or  for  the  reduction  of  the

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sentence."      Under the  Code of  Criminal Procedure,  1898 (the  old Code) High Court had the power to enhance a sentence even on an appeal  filed by  the  accused  against  his  conviction. Section 423 of the old Code, while circumscribing the powers of the appellate court, made an addition through sub-section 91-A) like this:      "(1-A)  Where   an  appeal  from  a      conviction lies  to the High Court,      it  may   enhance   the   sentence,      notwithstanding            anything      inconsistent therewith contained in      clause (b) of Sub-section (1)."      As  against   the  said  provision,  the  corresponding section in the present Code contains restrictions imposed on the appellate  court for enhancing the sentence on an appeal filed  from   a  conviction.   The   said   restriction   is incorporated in  Section 386 (b) of the present Code that in an appeal  from conviction,  the appellate court may reverse the finding and sentence and acquit or discharge the accused or alter  the finding  and maintain  the sentence of with or without altering  the finding alter the nature or the extent of the  sentence "but  not so as to enhance the same." While incorporating  the   said    restriction  the  present  Code conferred a  new right on the State or Central Government by Section  377   to  present  an  appeal  through  the  public Prosecutor on  the ground  of inadequacy  of Sentence.  Such appellate powers  of the High Court are subject to the rider that the accused should be given a reasonable opportunity of showing cause  against such  enhancement and  while  showing such cause  the accused has the right to plead for acquittal or for reduction of sentence.      On the  strength of  the principle so adumbrated in the present Code learned counsel contended first that this Court has no  power to  enhance the sentence as the present appeal has been  filed from  a conviction,  and  second,  that  the accused would  get a  right when  there  is  a  proposal  to enhance  the   sentence,  to  plead  for  his  acquittal  by reviewing the finding already made.      We are  unable to  agree with  the learned counsel that the accused  has a  further right in the case to canvass for reviewing the  finding arrived  at by this Court over again. The right  envisaged in  Section 377(3)  of the Present Code shall be  confined to appeals presented by Government to the High Court against sentence on the ground of its inadequacy. There is  no scope  to afford  a further  opportunity in the appeal, at  this stage, since the finding of the trial court has already been considered elaborately by re-evaluating the entire evidence  in the  light of  the  elaborate  arguments canvassed on  behalf of  the parties.  A repetition  of  the whole process  over again  is, apart  from waste  of time of this Court, unnecessary and unwarranted by law.      Shri Ram Jethmalani, learned senior next contended that the Supreme  Court has  no power  to enhance sentence in the absence  of   an  appeal   by   the   Government   presented specifically for  that purpose  more so  because the Supreme Court   has no  revisional powers  which the  High court and Court of Sessions are conferred with by the present Code.      Powers of  the Supreme  Court in  appeals  filed  under article 136  of the  Constitution are  not restricted by the appellate provisions  enumerated under  the Code of Criminal Procedure or  any other  statue. When  exercising  appellate jurisdiction, the Supreme Court has power to pass any order. The aforesaid  legal position  has been  recognized  by  the Constitution Bench  of this Court in Durga Shankar Mehta vs.

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Thakur Raghuraj  Singh and  ors., 1995 (1) SCR 267 and later followed in a series of decisions. [vide Arunachalam vs. PSR Sadhanantham &  anr.,  1979  (2)  SCC  297,  Delhi  Judicial Service Association  vs. State  of Gujarat  & Ors., 1991 (4) SCC 406].      The present  appeals have  not been filed under Article 136 of the Constitution, but under Section 19 of TADA. Hence it was contended that while dealing with a statutory appeal, plenary powers  of the  Supreme Court  cannot be  exercised. Accepting the  said contention  we may  point out  that even otherwise this  Court has  wide and  residual powers to deal with the  situation like  this, which  are well  enclosed in Article 142 of the Constitution.      It is now well nigh settled that Supreme Court’s powers under Article  142 of  the  Constitution  are  vastly  broad based. That  power in  its exercise is circumscribed only by two conditions,  first is that it can be exercised only when Supreme court  other wise exercises its jurisdiction and the other is  that the  order which Supreme Court passes must be necessary for  doing complete justice in the cause or matter pending before  it. the first condition is satisfied here as the  appellate   jurisdiction  of   the  Supreme   Court  is exercisable by virtue of Section 19 of TADA.      In Delhi  Judicial Service  Association  vs.  State  of Gujarat (supra)  as also  in Union  Carbide Corporation  vs. Union of  India, 1991  (5) SCC  584,  this  Court  made  the position  clear   that  power   under  Article  142  of  the Constitution is  entirely of  different level  and is  of  a different quality  which cannot  be limited or restricted by provisions contained  in statutory law. No enactment made by the Central  or State  legislature can limit or restrict the power  of   this  Court  under  Article  142,  though  while exercising  it  the  court  may  have  regard  to  statutory provisions. In  Mohammed  Anis  vs.  Union  of  India,  1994 Supple. (1) Scc 145, Ahmadi ]. (es the learned Chief Justice then was  ) by  following the  dictum in the above mentioned decisions has observed in paragraph 6, as follows:      "This power  has been  conferred on      the  Apex   Court  only   and   the      exercise  of   that  power  is  not      dependent  or  conditioned  by  any      statutory      provision.       The      Constitutional  plenitude   of  the      powers of  the  Apex  Court  is  to      ensure     due      and      proper      administration of  justice  and  is      intended to be co-extensive in each      case with  the need of justice of a      given  case   and  to  meeting  any      exigency.  Very  wide  powers  have      been conferred  on this  Court  for      due and  proper  administration  of      justice and whenever the court sees      that the demand of justice warrants      exercise of  such powers,  it  will      reach out to ensure that justice is      done   by    resorting   to    this      extraordinary  power  conferred  to      meet precisely such a situation."      In E.K.  Chandrasenan vs.  State of Kerala 1995 (2) SCC 99, this  Court has  traced its power in Article 142 for the purpose of enhancing the sentence awarded to the accused who filed the  appeal challenging  the conviction  passed by the High Court.  The following observations in the said decision are apposite:

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    "What is  contained in  Article 142      would   in    any   case    provide      sufficient power  to this  Court to      pass an order like the one at hand,      if this  Court were  to be  of  the      view that the same is necessary for      doing complete justice."      Shri Ram  Jethmalani, learned senior counsel, cautioned us by  reminding that  recourse to Article 142 should not be made for  too often  since  those  powers  are  specifically reserved for  using in  exceptional exigencies. According to him the instances when resort was made to Article 142 by the Court in  the past  were far and few between and that too in cases of very rare eventualities.      We are  aware that  powers under Article 142 are not to be exercised  frequently but  only sparingly. The occurrence described in  this case  is not  the usual  type  of  crimes reaching this  Court. When  all the four accused were caught red handed  while making  nocturnal movements  towards  some targeted destination in the densely crowded city with highly lethal and  quickly explosive  articles, it  is a  matter of reasonable  imagination  that,  had  they  not  been  timely intercepted by  the alert  and vigilant  police  force,  the consequences would  have been  disastrous and calamitous. We have no  manner of  doubt that  sentence of  imprisonment of five years  for the  offence under  Section 5 of the TADA in the circumstances  of this  case is  too inadequate  and  it warrants enhancement.      The next  question to  be considered is, what should be the extent  of the  sentence. Section  5 of  TADA prescribes punishment of  "imprisonment for  a term  which shall not be less than  five years,  but which may extend to imprisonment for life"  besides fine.  When we  found  that  the  minimum sentence prescribed  is too  inadequate, we have to consider whether the maximum prescribed is attracted.      Christopher J.  Emmins MA  in his ’A Practical Approach to Sentencing’.  has suggested  that  the  maximum  sentence should be  reserved for  the gravest  instances  of  offence likely to occur as a principle of commonsense (vide p. 110). We do  not think that the maximum sentence prescribed in the section  need   be  awarded   in  this   case  since   on  a consideration of  all aspects  of the  case we feel that the said upper  limit is on the higher side. Nevertheless, after be sowing  our serious consideration in the matter we are of the definite  opinion that  imprisonment for  period  of  at least 10  years would  be necessary  to  meet  the  ends  of justice looking  at the  manner in  which  the  offence  was perpetrated by the four accused persons.      In the  result, we enhance the sentence of imprisonment from 5 years as awarded by the Designated Court, to 10 years for all  the for  accused A-  1 Subhash  Singh Thakur,  A- 2 Jayendra  Thakur   @  Bhai   Thakur,  A-   3  Shyam  Kishore Garikapati, and Chandrakant Patil. Ordered accordingly.      All the appeals would stand this disposed of.