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PETITIONER: LINGALA VIJAYAKUMAR & ORS.

       Vs.

RESPONDENT: PUBLIC PROSECUTOR, ANDHRA PRADESH

DATE OF JUDGMENT02/08/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1978 AIR 1485            1979 SCR  (1)   2  1978 SCC  (4) 196

ACT:      Sentence-Enhancement of  the sentence by the High Court under Section  377 of  the  Criminal  Procedure  Code,  1973 explained.      Sentence-Correctional sentence, plea for-Prison justice vis-a-vis- social  justice and  right of  the  prisoners  to humane treatment under Art. 19 of the Constitution.

HEADNOTE:      The appellants  were  duly  prosecuted.  convicted  and awarded sentences  of 2 1/2 years rigorous imprisonment each for  the   offence  of  having  robbed  the  State  Bank  by committing dacoity.  Appeals by  the accused  and the  State ended in the enhancement of the sentence to seven years R.I. each. Hence the appeal by special leave.      Dismissing the  appeal, but  modifying the  sentence as awarded by the Sessions the Court ^      HELD: The  High Court  has superseded the trial Court’s discretionary impost  for which it has power, provided error in principle  or perverse  exercise  or  like  faux  pas  is pointed out and those reasons are stated. Appellate power to prune or  protract is  not unbridled  when  discretion  once exercised is  to be  upset. And  the  higher  Court  can  be draconic, if  grounds exist,  but it  cannot be laconic. The specific reasons  assigned by  the Sessions  Court  must  be countered by  clear ratiocination and then the Supreme Court ordinarily keeps out. [6 A-B, E]      In the  instant case,  the four words which did justice to the  trial court  were  "the  ends  of  justice"  without specifying what   they  were and there was no speaking order in the  High Court’s  substantial enhancement.  None of  the reasons given  by the  Sessions Court  have  been  expressly dissented  from   by  the   High  Court  or  can  be  called impertinent. [6E, 7C]      Observations:      (i)   "Cash awards  for bravery"  to witnesses  when  a criminal case  is pending may be euphemistic officialese but may be  construed by  the  accused  as  purchase  price  for testimonial   fidelity.    The   overzealous    antics   and objectionable tactics  are far  from fair  for  a  political

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Government which pays homage to judicial justice and betrays a mood  of executive interference with the course of justice where political  vendetta shows up. No one is above contempt power in our constitutional order. [5A-B]      (ii) Prison justice is part of social justice. The writ of the  rule of law, if it runs within the jail system shall not permit  inhumanity. On  appropriate motion  made to this Court showing violation of the residual rights of a prisoner by unnecessary  cruelty  and  unreasonable  impositions  and denial  and  deprivations  within  the  prison-setting,  the judicial process  will call  to order the prison authorities and  make   them  respect  the  fundamental  rights  of  the appellants Prisoners are not non-persons. [8B-C, 10-B] 3      (iii)  The   Court  has   responsibility  to  see  that punishment serves social defence  which is the validation of deprivation of  citizen’s  liberty.  Correctional  treatment with a  rehabilitative  orientation,  is  an  imperative  of modern  penology  which  has  abandoned  jus  talionis.  The therapeutic basis  of incarceratory lifestyle is not unknown to Gandhian  India because the Father of the Nation regarded a criminal as a morally aberrant patient. A hospital setting and a  humanitarian ethos  must pervade  our prisons  if the retributive theory,  which is  but vengeance in disguise, is to disappear  and deterrence  as a  punitive objective  gain success not  through the  hardening practice  of  inhumanity inflicted  on  prisoners  but  by  reformation  and  healing whereby the  creative potential of the prisoner is unfolded. These values have their roots in Art. 19 of the Constitution which sanctions deprivation of freedoms provided they render a reasonable  service to  social defence,  public order  and security of the State. [7D-G]      [The   Court-directed   that   the   appellants   being "children" within  the meaning  of the  "Saurashtra Children Act", though not under the Andhra Children Act, be separated from  adult  prisoners.  More  particularly  the  appellants should be allowed opportunities for improving themselves and nourishing their  minds with  wholesome reading  so that  on return to society they turn a new leaf.]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 257 of 1978.      Appeal by  Special Leave  from the  Judgment and  order dated 18-10-76  of the Andhra Pradesh High Court in Criminal Appeal No. 221 /75 and Criminal Appeal No. 749 of 1975.      R. K. Garg and V. J. Francis for the Appellant.      P. P. Rao and G. N. Rao for the Respondent.      The order of the Court was delivered by      KRISHNA   IYER,    J.-Seven   dangerously   ideological teenagers,  politically   impatient   with   the   deepening injustice of the economic order and ebulliently infantile in their terrorist  tactics, were  sentenced to  seven years in prison for  the offence of having robbed the State Bank of a few thousand  rupees with  non-violent use of crude pistols, and country bombs which, ill the language of the Penal Code, amounts to  dacoity-a grave  property crime.  They were duly prosecuted, convicted  and awarded  2  1/2-  years  rigorous imprisonment. Appeals  by the accused and the State ended in the enhancement of the sentence to seven years R.I. each.      We have, on a perusal of the judgment, under appeal and after hearing  Sri Garg  for  the  appellants,  declined  to demolish the  conviction although  the scenario of events is

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judicially disquieting.  Why  ?  Because  in  our  adversary system and  ’umpire’ tradition  of the  judicial process the weaker accused,  sometimes anathematized  as naxalite  or by other unpopular  appellation, is  theoretically equal before the  law   but  in  real-life  terms,  thanks  to  practical handicaps, the scales of 4 justice (not the judges) tend to incline against him. Law is what law  does, not  what law  speaks. The Judge, tradition- bound plays an umpire’s passive role in an adversary system. He holds on the basis of proof proffered by the prosecution, tested by  the conventional process of cross-examination and the standard  yardsticks of  credibility. He has no activist alternative of  further probe,  for he  has  no  independent assistance in  that behalf.  The technical  power to  summon court witness or put questions hardly helps in practice. And when the  defence is  financially, socially,  politically or otherwise too  weak to explore the investigatory veracity or explode the  testimonial value  of the  prosecution and  its witnesses or  to undertake  its own  garnering of  effective materials  to  establish  innocence,  the  equal  scales  of justice operate  queerly. Even  so, we  cannot travel beyond the record,  and  concurrent  findings  of  fact  acquire  a judicial  sanctity   which  stands   in  the   way  of   our reassessment of  evidence at  the tertiary  stage. For  this reason we  confine ourselves  to the  conscientious issue of correctional sentence-that  Cinderalla of Indian Criminology despite Section 235(2), Cr. P. Code.      Never-the-less, we must express our astonishment at the hasty impropriety  of  making  cash  awards  to  prosecution witnesses when the case was sub-judice, at a public ceremony where the  Chief  Minister  himself  presided.  The  factual foundation is  furnished by  the following  paragraph in the judgment of the trial court:           "Before parting  with the  case I  wish to observe           that the  government by  giving awards  to some of           the witnesses in the case at a public meeting held           at Naidugudem  presided over by the Chief Minister           while the  matter was  still sub-judice  for their           having courageously  chased the accused and caught           them   soon   after   the   offence   created   an           embarrassing situation  for the  court  making  it           difficult  to   arrive  at  the  truth  without  a           prejudiced mind.  But all  the same I scrupulously           kept this  aspect of  the case  from my  mind  and           arrived at  the decision  independently on merits.           The government  ought not  to have  prejudged  the           case and  awarded any  cash prizes  to any  of the           witnesses. What  an awkward  figure the government           would  cut   if  due   to  some  compelling  legal           requirements the  court was  obliged to  come to a           conclusion that the witnesses to whom it had given           awards  in  advance  were  all  got  up  witnesses           unworthy of  credit ?  I think  it will not be too           much if  I hope  that things of this type will not           be repeated by the government in future in its own           interests and  in the  interests of administration           of justice." 5 Emphatically  we   agree.  ’Cash   awards  for  bravery’  to witnesses when a criminal case is pending may be euphemistic officialese but  may be construed by the accused as purchase price for testimonial fidelity.      The overzealous  antics and  objectionable tactics  are far from  fair for  a political government which pays homage

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to  Judicial   justice  and  betrays  a  mood  of  executive interference with  the course  of  justice  where  political vendetta shows up. We enter this caveat to arrest repetition and to  alert about  consequences. No  one is above contempt power in our constitutional order.      Now we  reach the  crucial question  of the appropriate punishment The  conspectus of  facts relevant to this branch may be recapitulated. (i) all the seven sentences are around seventeen; (ii)  all of  them are  self-less ideologues with revolutionary ardour  impressed militantly with the Preamble declaration  of   the  Constitution   ’to  secure   economic justice’; (iii)  none of  them is  a dacoit  in the  highway robbery sense  but everyone  is in the criminal connotation- more dangerous  for the proprietariat because they violently and openly  challenge the basis of 1 those capitalist values which find  expression in the 118-year-old Penal Code. It is a matter  for Parliamentary  action whether  the Code should shift its  penal emphasis  to the social justice concerns of Part III and IV more than Lord Macaulay meant.)      The primary  considerations which  persuaded the  trial Judge to 11: impose a lenient term of 30 months in jail have been succinctly stated:      "(i)      All  the  accused  persons  are  very  young,                accused No. 5 being only 17 years of age.      (ii)      The behaviour  of the  accused persons in the                Court throughout the trial was exemplary.      (iii)     The accused  persons are  really  anxious  to                relieve the  suffering of  the poor  and  are                absolutely sincere in this regard.      (iv)      In their  teens, they have voluntarily denied                themselves all  comforts and are even risking                their lives for the sake of poor.      (v)       No amount of repression would bring them into                the right  path and  that they  should be won                over only  by psychological  methods  and  by                persuasion."                (We have borrowed from para 20 of the Special                Leave Petition). 6      The  High   Court  has  superseded  the  trial  court’s discretionary impost  for which it has power, provided error in principle  or perverse  exercise  or  like  faux  pas  is pointed out  and those  reasons stated  Appellate  power  to prune or  protract is  not unbridled  when  discretion  once exercised is  to be  upset. And  the  higher  court  can  be draconic, if grounds exist, but it cannot be laconic.      Dealing with the sentence the learned judge observed:      "Coming to  the sentence taking into consideration that      the accused are young people the learned Sessions Judge      thought that  the ends  of justice would be met if they      are sentenced  to undergo  R.I. for  2 1/2  years each.      Under Section  395 of  the Indian  Penal  Code  whoever      commits dacoity  shall be  punishable with imprisonment      for life  or R.I.  for a period which may extend to ten      years and-shall  also be  liable to  fine. No doubt the      accused are  young persons.  None the  less the offence      committed by them is a very grave one. I think the ends      of justice require enhancement of sentence and it would      simply be  met  if  their  sentences  are  enhanced  to      undergo R.I.  for a  period of  seven years each and to      pay a  fine of Rs. 1,000 each and in default to undergo      R.I. for a further period of six months each.      The four  words which do justice to the trial court are "the ends  of justice".  What are the ends of justice here ? The specific  reasons assigned by the Sessions Court must be

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countered by clear ratiocination, and then the Supreme Court ordinarily keeps out.      What do  we mean by "the ends of justice’ ? Hans Kelsen in a  farewell lecture in Berkeley, way back in 1952, raised the question and said:           "When Jesus  of Nazareth was brought before Pilate           and admitted  that he  was a king he said: ’It was           for this that I was born, and for this that I came           to  the   world,  to  give  testimony  for  truth.           Whereupon Pilate asked, ’What is truth?’ The Roman           procurator did not expect, and Jesus did not give,           an answer  to this question; for to give testimony           for truth  was not  the essence  of his mission as           Hessianic King.  He was born to give testimony for           Justice,  the   justice  to  be  realised  in  the           Kingdom’ of  God, and  for this justice he died on           the cross.  Thus behind  the  question  of  Pilate           ’What is  truth’ ?  arises, out  of the  blood  of           Christ, another still more important question, the           eternal question of man kind. What is Justice ? 7           No  other   question   has   been   discussed   so      passionately;   no other  question has  caused so  much      precious blood  and so many bitter tears to be shed; no      other question has been the object of so much intensive      thinking by  the most  illustrious from  Plato to Kant;      and yet,  this question  is today  as unanswered  as it      ever was. It seems that it is one of those questions to      which the  resigned wisdom applies that man cannot find      a definitive  answer, but  can  only  try  improve  the      question".      It fairly  follows that Christian justice was not Roman justice, and  social justice  hardly  squares  with  ’Haves’ justice. To  enhance the  sentence to  seven years  R.I.  by merely saying the ’ends of justice’ demand it is to continue the question,  as Prof.  Kelsen put  it, not  to meet it. We find no  speaking order  in  the  High  Court’s  substantial enhancement and  restore the  sentence of the Sessions Court imposed for stated reasons none of which have been expressly dissented  from   by  the   High  Court  or  can  be  called impertinent.      Having desisted  from interfering  with the  conviction and having  reverted to  the sentence  of the trial court we feel impelled  to make  a few observations on prison justice since under  the court’s  mandate these  seven teenagers are being sent  into  that  world  within  the  world  which  is substantially sight-proof  and sound-proof.  The  court  has responsibility to  see that punishment serves social defence which is the validation of deprivation of citizen’s liberty. Correctional treatment,  with a  rehabilitative orientation, is an  imperative of  modern r  penology which has abandoned jus talionis.  The therapeutic  basis of incarceratory life- style is not unknown to Gandhian India because the Father of the  Nation  regarded  a  criminal  as  a  morally  aberrant patient. A  hospital setting  and a  humanitarian ethos must pervade our  prisons if the retributive theory, which is but vengeance in  disguise, is  to disappear and deterrence as a punitive objective  gain success  not through  the hardening practice  of   inhumanity  inflicted  on  prisoners  but  by reformation and  healing whereby  the creative  potential of the prisoner  is unfolded.  These values have their roots in Article 19  of the  Constitution which sanctions deprivation of freedoms  provided they  render a  reasonable service  to social defence.  public order  and security of the State. By cruel treatment  within the  cell you  injure his psyche and

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injury  never   improves.  Nay,  you  make  him  recidivist, embittered and ready to battle with society on emerging from the jail  gates. By  karuna informing  prison practices  you instill a  sense of  dignity and  worth in  the prisoner- so that he awakens to a new consciousness and re-makes himself. It is obvious that it is unreasonable to be torture some, as it  recoils   on  society   and  it   is  reasonable  to  be compassionate, 8 educative and  purposeful because  it transforms the man and makes him  more social.  This brief  divagation leads to one conclusion that  within the  jail these 7 youngmen shall not be treated  with anything  of brutality-a  caveat which  has become necessary  when we  remember that they are treated as ’naxalites’  and  the  witnesses  who  have  given  evidence against them  have been hurriedly rewarded officially by the Chief Minister.  The writ  of the  rule of  law, if  it runs within the  jail system,  shall not  permit  inhumanity.  On appropriate motion  made to  this Court showing violation of the residual rights of a prisoner by unnecessary cruelty and unreasonable impositions and denials and deprivations within the prison-setting,  the judicial process will call to order the prison authorities and make them respect the fundamental rights of the appellants. Prisoners are not non-persons. The American Court  has taken the view and we agree with it even on the basis of our Constitution:           "the  responsible   prison  authorities   ..  have           abandoned  elemental   concepts  of   decency   by           permitting conditions to prevail of a shocking and           debased nature, then the courts must intervene and           intervene promptly  to restore the primal rules of           a civilized  community in  accord with the mandate           of the Constitution of the United States."                          (257 F. Supp. 674 (S. D. Cal. 1966) Justice Douglas,  speaking of American prisons in Sweeney v. Wood all, (1) observed:           "(Petitioner)  offered   to  prove   that  he  was           stripped to  his waist  and forced  to work in the           broiling sun  all the  day  long  without  a  rest           period.           He offered to prove that on entrance to the prison      he was  forced to  serve as  a "gal-boy"  or female for      homosexuals among the prisoners.           Lurid details are offered in support of these main      charges. If  any of them is true, (petitioner) has been      subjected to cruel and usual punishment in the past and      can be  expected upon his return to have the same awful      treatment visited upon him.           ....If the  allegations of  the petition are true,      this (petitioner) must suffer torture and mutilation or      risk of death itself to get relief in Alabama. 314 US. 86 (1952). 9           ....I  rebel   at  the   thought  that  any  human      being....should be  forced to  run a gamut of blood and      terror....to get his constitutional rights." Our prisons are not laudably different even in the matter of homosexuality. The  point of  no return  in  social  defence arrives if  imprisonment is not geared to therapeutic goals. On release such an offender is ’caught in a "revolving door" -leading  from   arrest  on   the  street  through  a  brief unprofitable  sojourn   in  jail  back  to  the  street  and eventually another  arrest. The jails overcrowded and put to use for  which they  are not  suitable  have  a  destructive effect upon.... inmates.’ The appellants are militant men in

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a hurry  with revolutionary zeal and the good of the society at heart  insisting on social justice which under the Indian Sun is  specialising on  slow motion.  They are  violent and need to be weened off this self-defeating weapon.      And one harrowing thought relevant to sentence and with a grim  bearing on  prison treatment  is that  some of these convicts arc.  ’children’ by  definition in  the  Saurashtra Children Act(1)  although a year or so older than ’children’ under the Andhra Children Act. Were they tried in Gujarat as ’children’ they  would have been neither in a criminal court nor in prison. This has a vicarious impact on the sentencing discretion. More importantly, these adolescents when ushered into jail  with sex-starved ’Lepers’ sprinkled about, become homosexual  offerings   with  nocturnal   dog-fights.  These unspeakable  prison   facts  perhaps   receive.  indifferent attention on  Home Ministry  files but  must weigh  with the court in  inducing it  to direct that the young incarcerates are separated  dusk-to-dawn from  sadistic adults. We direct the superintendent  to do  so, in the expansive powers under Sec. 482 Cr. P. Code.      Having regard  to these  circumstances, we  direct that these prisoners  be oriented  on a humane course, be treated as ’B’  class prisoners,  allowed opportunities of improving themselves and nourishing their minds with wholesome reading so that  on return thence they turn a new leaf retaining the flavour of  their self-sacrificing  spirit  to  change  ’the sorry scheme  of things  entire’ but  without  blood-letting barbarities   and   boomeranging   terrorism.   Recreational opportunities and  other factors  which will improve, rather than injure  must be  brought into  play when  dealing  with these prisoners.  These observations  in  the  direction  of prison reforms are relevant for the whole jail system, still of Raj  vintage, because  conditions there  leave much to be desired in (1) Act XXI of 1954, S. 4(d). 2-520SCI/78 10 the matter  of humanism  and correctionalism.  We are  aware that there  is a  hopeful  awakening  on  the  part  of  the Government  at   the  Central   and  State   levels  towards hospitalisation effect  as against  ’zoological’ impact.  If our observations did catalyse this trend it were good. After all, the  Constitutional culture of our country imposes this obligation, as  we have briefly indicated. Prison justice is part of social justice. S.R.                                       Appeal dismissed. 11