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PETITIONER: DILBAG SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT25/01/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. SEN, A.P. (J)

CITATION:  1979 AIR  680            1979 SCR  (2)1134  1979 SCC  (2) 103

ACT:      Sentence-Sentencing power  under Section  248(2) and s. 235(2) of  the Criminal  Procedure Code,  1973  (Act  II  of 1974)-Need for  non-institution alised  sentencing and value of pre-sentencing investigation reports while exercising the right to  sentence-Guidelines to  be laid down-Purpose of s. 360 of Criminal Procedure Code highlighted.

HEADNOTE:      In the case of a trial before a court of session, under s.  235(2)  Criminal  Procedure  Code  "if  the  accused  is convicted, the Judge shall, unless he proceeds in accordance with the  provisions of  s. 360,  hear the  accused  on  the question  of   sentence,  and  then  pass  sentence  on  him according to  law." Similarly,  in  the  case  of  trial  of warrant cases  by Magistrates, under s. 248 (2) of the Code, "where the Magistrate finds the accused guilty, but does not proceed in  accordance with  the provisions  of s. 325 or s. 360, he  shall after  hearing the accused on the question of sentence, pass sentence upon him according to law."      Section 361  of the  Code mandates  that "where  in any case, the court could have dealt with:-      (a) an  accused  person  under  s.  360  or  under  the provisions of  the Probation of Offenders’ Act, 1958 (Act XX of 1958) or;      (b) a  youthful offender  under the  Children Act, 1960 (Act LX  of 1960)  or any  other law  for the  time being in force for  the  treatment,  training  or  rehabilitation  of youthful offenders,  but has not done so, it shall record in its judgment,  the special  reasons for not having done so." Thus, under  the Criminal  Procedure Code, 1973, recourse to the provisions of s. 360 is a must.      In a  trial against  four persons charged by the Police with  offences  under  ss.  302,  324,  323  IPC,  including constructive liability  under s.  34, two were, acquitted by the trial  court and  two were  convicted. The appellant was sentenced to  rigorous imprisonment  for one year and a fine of Rs.  200/- for  causing simple injury to one Arjan Singh. He was  held vicariously  guilty under  ss. 324/34  IPC  and awarded two  years rigorous  imprisonment and  a fine of Rs. 1000/-. In  addition he  was convicted under s. 323 IPC, for

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causing hurt  to the  daughter of  the deceased  and on this count punished  with R.I.  for one year together with a fine of Rs. 200/-.      Releasing the appellant on probation, the Court ^      HELD: 1. Enacted law is guilty of inaction; because its obscure presence  on the  statute book escapes the vigilance of the  Bar. Where  even the  Court ignores what is vital to the little  man the guarantee of sentencing legality becomes a casualty. [1135H, 1136A] 1135      2. To  jail an  accused is  mechanical farewell  to the finer sentencing  sensitivity of  the Judge  of salvaging  a redeemable man  by non-institutionalised  treatment. If  the judge has  before him  a complete  and accurate pre-sentence investigation  report   which  sets  forth  the  conditions, circumstances, background,  and surrounding  of the  accused and the  circumstances underlying the offence which has been committed, the judge could then impose sentence with greater assurance that he has adopted the proper course. The purpose of s.  360 of  the Code is precisely this and the goal of s. 235(2) is just this. [1138H, 1140B-C]      3. Sentencing  legality  is  violated  when  the  judge shirks.  And   the  Bar   is  often  alien  to  correctional alternatives and  concentrates its ammunition on culpability and extenuatory scaling down of imprisonment. [1189F]      4. Calling pre-sentence investigation reports, bestowal of intelligent  care on the choice between institutional and non-institutional disposition  like  probation,  conditional release  and  such  community  methods  must  form  part  of innovative sentences.  But this  should be  based on careful study of  the convict  and his  potentiality for reform; not guess-work, nor insensitive assessments. [1137B-E]      Williams v.  New York,  337 U.S.  241, 249; quoted with approval.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 313 of 1978.      Appeal by  Special Leave  from the  Judgment and  Order dated 22-3-78  of the  Punjab  and  Haryana  High  Court  in Criminal Appeal No. 189/75.      A. S. Sohal and S. K. Jain for the Appellant.      Hardev Singh for the Respondent.      The Judgment of the Court was delivered by      KRISHNA IYER,  J. Every  litigative appeal has a docket number but  beneath the  paper lurks  a human  factor, often forgotten in the forensic pugilists but now and then brought to the fore, as in this criminal appeal limited to the issue of appropriate sentence.      Surely, ’the  law  must  keep  its  promises.’  Justice Holmes expressed  the obvious  when he  said this,  but  the breach of  promise by the law on delivering criminal justice is daily  experience, from  police arrest  to prison trauma. The focus  in this case is on the sentencing alternatives in the Criminal  Procedure Code;  and the  grievance pressed by counsel, when  traditional grounds on the merits failed, was that the  compassion  of  s.  360  professionally  suffering benign neglect,  be kindled  and he be released. Enacted law is guilty  of inaction,  because its obscure presence on the statute book  escapes the  vigilance of  the Bar. Where even the court  ignores what  is vital  to  the  little  man  the guarantee of

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1136 sentencing legality  becomes a  casualty. This  case  is  an instance in point.      Now the  brief story  which enlivens  the  ’sentencing’ submissions. Four  villagers of  rural Punjab,  of whom  the appellant is  one, set  upon Arjan  Singh, a small official, while on his way back home. The sound and fury of the attack with sticks  brought out  the ill-starred,  innocent Srimati Rakhi, Arjan  Singh’s brother’s  wife. Her daughter too came to the  spot attracted  by the  fracas. Arjan Singh received blows, being  the angry  target of  the assailants. But poor Rakhi, who  came in accidentally, was hit on the head with a takua by  Jagir Singh,  one of  the accused.  She eventually died; and  her daughter  and Arjan  Singh were  hurt by  the beating.      Four persons  were charged  by the police with offences under s.  302, 324  and 323  I.P.C.  including  constructive liability under  s. 34.  Two of  them were  acquitted by the trial court and the other two were convicted but appealed to the High  Court. The  man who  dealt the fatal cut was Jagir Singh. His  conviction under s. 302 I.P.C. and award of life imprisonment by  the Sessions  Court was  converted into one under s.  304 Part  1, I.P.C. with a consequential reduction of sentence  to  seven  years’  rigorous  imprisonment.  His conviction on certain other counts was maintained but we are not concerned  with him  at all, since the appellant in this Court is the other accused Dilbag Singh. His role was lesser and related  to causing  simple injury  to Arjan  Singh  for which he was sentenced to rigorous imprisonment for one year and a  fine of  Rs. 200/-.  He was  held vicariously  guilty under ss.  324/34 I.P.C.  and awarded  two  years’  rigorous imprisonment and  a fine  of Rs.  1000/-. In addition he was convicted under  s. 323  I.P.C.  for  causing  hurt  to  the daughter of  the deceased  and on  this count  punished with R.I. for one year together with a fine of Rs. 200/-.      Having declined  leave on  the question  of  guilt,  we confine our attention to the contentions on the sentence. We proceed on  the footing of the facts found and ask ourselves whether any  basic flaw  in  sentencing  technology  affords appellate  intervention   and  re-designing  of  reformatory treatment in  the conspectus of circumstances present in the case.      The courts  in our country consult the punitive tariffs prescribed in  the Penal  Code, consult  the  prison  period awarded in  practice for  such offences  and  with  marginal variations mechanise  the  process.  Judged  by  that  test, conviction  under  s.  324  I.P.C.  read  with  s.  34  plus substantive guilt  under s.  323 I.P.C.  is visited with two years for  the former  and one year R.I. especially when the incident has  ended in  death.  But  penal  humanitarianism, strategies of non-institutional rehabilitation and 1137 a complex  of other  considerations in  making an offender a non-offender have  revolutionized the  judicial repertory in re-socializing the  criminal. The sentence hearing for which the Criminal  Procedure Code, 1973 provides in s. 248(2) and s. 235(2)  has hardly  received the  serious concern  of the Courts  despite   the  International   Probation  Year   and therapeutic  accent   in  penological  literature.  ’If  the criminal law  as a whole is the Cinderella of jurisprudence, then the  law of  sentencing  is  Cinderella’s  illegitimate baby’.  Pre-sentence   investigation  reports,  bestowal  of intelligent care on the choice between institutional and non institutional  disposition   and  habitual  neglect  of  new avenues open to the court have constrained us to grant leave

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in the  case  so  that  guidelines  may  be  laid  down  and probation and  community-oriented methods lying in the legal limbs may  be re-activated. Our prisons are overcrowded, our prisoners are  subjected to  iatrogenic  incarceration,  our penal drills  are self-defeatingly  callous to  correctional measures and  our jail  budgets bulge without countervailing community benefits  because  the  Bench  and  the  Bar  have dismissed as  below judicial  visibility  such  patterns  as probation, conditional release. The time has come for Courts to abandon  the Monroe Doctrine towards penology and concern itself with innovative sentences.      But this  involves careful study of the convict and his potentiality for  reform,  not  guess-work  nor  insensitive assessments. Therefore, we directed, right at the start, the Chief Probation  Officer, Punjab,  to make  a report to this Court "as  to the  social circumstances  and other  relevant factors bearing  on the  consideration of eligibility of the petitioner to  probation." That report has been received and its contents  indicate  competent  advertence  to  pertinent criteria which we may briefly sum up.      The appellant  is 32 years old. His behavioral attitude is stated to be "obedient and law-respecting in nature". The officer goes  on to  state that  the prisoner’s character is fairly good,  that he  is upright,  alert and  interested in rural games.  Of course,  he seems  to be  wrestler  of  the locality which  is good  if it  is practised  as a  game but dangerous if  he exercises  his muscles  on  other  people’s flesh. More  importantly are the social influences that bear upon restraint  and good behaviour. He is a petty farmer who left school in his teens, has ten acres of land belonging to the joint  family of  himself  and  five  brothers  and  the mother. Being  a cultivator  and living  in the joint family circumstances the  officer finds  no adverse remarks against him in the locality. On the other hand, the report refers to his great  respect for  the former  Sarpanch of the village. His family  circumstances evoke  commiseration  because  his father is  dead having  been murdered in 1960. His mother is alive 1138 and has to be maintained by himself and his two brothers who are truck  drivers and  the third  a jawan.  He has  his own nuclear family  to maintain  with  a  young  wife  and  four children. A  pitiable factor  is that  his elder daughter is paralytic from  birth. His  social position  shows  that  he belongs  to   a  lower   middle  class   family,  lives   by agriculture, loves  his mother  and brothers  and has earned the  good-will   of  his   neighbours  who  think  that  the occurrence was  induced by  an  irritating  land  issue  and temporary intoxication.  A Sense of remorse has overcome him according to  the Probation  Officer who  says that  he is a first offender  and not  a recidivist. It is a painful fact, as noted  in the report that this criminal case has cost him a tidy sum, loss of prestige and even family separation.      In the  unrefined English  of the  Probation Officer we may summarise his assessment of the offender:           "It was  met of  an  accident  as  offender-client      Dilbagh Singh  seems to be law abiding and God fearing.      His one weakness is wine and that is the route cause of      the  present   diviation,  otherwise   on   the   whole      offender’s behaviour  is  normal  and  adjustable.  The      offender is in curable stage as crime has not gone deep      into him.  He can  be adjustable  amicably  within  his      normal and  natural environmental  factors. The  client      can easily  be reformed  as he  is neither professional      criminal  nor   exhibits   any   tendency   to   future

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    deviation." The  social   milieu,  the  domestic  responsibilities,  the respect for  the  former  Sarpanch  he  shows,  the  general goodwill he commands are plus points. The tragic fact of his father’s murder  and the  running misfortune  of  his  young daughter’s paralysed  limbs are sour facets of his life. The circumstance that  he is gainfully employed as agriculturist and his  brothers, though  in  diverse  occupations,  remain joint family  members, are  hopeful factors.  The aggressive episode which  led to  his conviction  was  induced  by  the company of  his cousin  who serves a seven year sentence and the inebriation  due to drinking habit. This simple villager responsible and  gentle, sad  and  burdened,  repentant  and drained of  his little  wealth by  the criminal  case, has a long way  to go  in life  being in  his early  thirtys.  The drinks vice was the minus point. Many a peaceable person, on slight  irritation,   suffers  bellicose  switch-over  under alcoholic consumption.      How does  judicial discretion  operate in  this skew of circumstances? To  jail him  is mechanical  farewell to  the finer sentencing  sensitivity of  the judge  of salvaging  a redeemable man by non-institutionalised treatment. The human consequences of the confinement process here will 1139 be no  good to  society and  much injury  to  the  miserable family and,  above all,  hardening  a  young  man  into  bad behaviour, with  prestige  punctured,  family  injured,  and society ill-served.  Nor was  the crime  such, so far as his part  was   involved,   as   to   deserve   long   deterrent incarceration.  Our   prison  system,   until   humane   and purposeful reforms pervades, surely injures, never improves. Prison justice has promises to keep, and ethological changes geared to curative goals are still alien-from dress and bed, refusal of  frequent parole  and  insistence  of  mechanical chores, bonded  labour, nocturnal tensions, and no scheme to reform and many traditions to repress-such is the zoological institutional realism  and rehabilitative  bankruptcy  which inflict social  and financial costs upon the State.(1) It is wasted  sadism  to  lug  this  man  into  counter-productive imprisonment for one year.      Long years  ago, Franklin  D. Roosevelt,  in a forward- looking speech on John Day, said:           "If the  criminal’s past history gives good reason      to believe  that he  is not  of the  naturally criminal      type, that he is capable of real reform and of becoming      a useful  citizen, there  is no  doubt that  probation,      viewed from  the selfish  standpoint of  protection  to      society alone,  is the  most efficient  method that  we      have. And  yet it  is the  least understood,  the least      developed, the  least appreciated of all our efforts to      rid society of the criminal."(2)      The appellant  has served  a substantial  part  of  his sentence in jail because of judicial innocence of the normae in the  area of non-institutional disposition. It is easy to imprison,  hard   to  individualise  punishment.  Sentencing legality is  violated when  the judge shirks. And the Bar is often alien  to correctional  alternatives and  concentrates its ammunition  on culpability  and extenuatory scaling down of imprisonment.      The observations  of the United States Supreme Court in Williams v.  New York  (337 U.S.  241, 249)  lay  the  right stress on pre-sentence reports:           "have been  given a  high value  by  conscientious      judges  who  want  to  sentence  persons  on  the  best      available information  rather than  on  guess-work  and

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    inadequate infor- 1140      mation. To  deprive sentencing  judges of  this kind of      information   would    undermine   modern   penological      procedural policies  that have  been cautiously adopted      throughout the  nation after  careful consideration and      experimentation."      Judge F. Rayan Duffy has written:           "If the  judge  has  before  him  a  complete  and      accurate pre-sentence  investigation report  which sets      forth the  conditions, circumstances,  background,  and      surroundings of  the defendant,  and the  circumstances      underlying the  offense which  has been  committed, the      judge can  then impose  sentence with greater assurance      that he  has adopted  the proper  course. He  can do so      with much greater peace of mind."(1)      The purpose  of s.  360 of  the Code is precisely this; the goal  of s.  235(2) is  just this. And yet, the exacting art is more honoured in the breach than in the observance if we many  wrongly use  a Shakespearean  passage to drive home our point.  We stress the legal position so that subordinate courts may  not treat  conviction as  the terminal point but the end of one chapter. We are mindful of the complexity and remove the  impression that  easy resort to s. 360 is right. No; it is wrong. Two quotes set the record straight.           "Imprisonment is the appropriate sentence when the      offender must  be isolated  from the community in order      to protect  society or  if he can learn to readjust his      attitudes and  patterns of  behaviour only in a closely      controlled environment."(2)           "The consequences of a sentence are of the highest      order. If  too short  or of  the  wrong  type,  it  can      deprive the  law of its effectiveness and result in the      premature release  of  a  dangerous  criminal.  If  too      severe or  improperly conceived,  it can  reinforce the      criminal tendencies  of the defendant and lead to a new      offence by one who otherwise might not have offended so      seriously again.           The decision  which is  presented at sentencing is      also enormously  complex. It properly is concerned, and      often predominantly,  with  the  future  which  can  be      predicted for  the particular offender. But any single-      valued  approach   to  sentencing   is  misdirected.  A      sentence which is not in some 1141      fashion  limited  in  accordance  with  the  particular      offence can lead to a system of incomparable brutality.      Per contra,  a sentence  or pattern  of sentence  which      fails to take due account of the gravity of the offence      can seriously undermine respect for law."(1)      In this  case, after  perusal  of  the  report  of  the Probation Officer,  counsel for the State, Sri Hardev Singh, with fair  candour and  shared correctness,  consented to  a release of the prisoner under S. 360. We agree. But one fact needs emphasis. The close nexus between violence and alcohol is a  call to  the State  in every criminal investigation to identify the  role of  alcohol  in  the  commission  of  the offence and  in every  prisoner’s treatment  to provide  for anti-alcoholic therapy.  To fail  here is vicarious guilt of the State  to Society.  We direct  release of  the appellant forthwith. He  will enter into a bond before the trial court together with  Shri Dilbag Singh S/o Babu Singh as surety in the amount  of Rs. 1000/- within two weeks of his release to keep the  peace, be of good behaviour, to abjure alcohol and not to  commit offence  for a  period of  three years and to

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appear and receive sentence, if called upon in the meantime. The appeal  is allowed  with this  direction  which  is  the Q.E.D. of sentencing justice. V.D.K.                                       Appeal allowed. 1142