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         IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

   SPECIAL LEAVE PETITION (CRIMINAL) NO. 2506 OF 2009

NATIONAL COMISSION OF WOMEN      .....    PETITIONER  (S)

vs.

STATE OF DELHI & ANR. .....   RESPONDENT(S)

O R D E R

1. This Special Leave Petition has been filed by the  

National  Commission  for  Women  (hereinafter  called  the  

`Commission') statedly under the inherent powers of this  

Court  challenging  the  order  of  the  High  Court  dated  9th  

February,  2009,  whereby  the  respondent  No.2  has  been  

acquitted for the offence under Section 306 of the Indian  

Penal  Code  and  while  maintaining  his  conviction  under  

Section 376 of the Indian Penal Code, the sentence has been

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reduced  to  that  already  undergone,  which  is  said  to  be  

about five years and six months.

2. The facts are as under:

3.1 Sunita  then  aged  21  years,  committed  suicide  by  

consuming aluminium phosphide tablets on 14th April, 2003.  

A suicide note Ex. P.4 (G) found near her body was proved  

to  be  written  in  her  hand.   In  the  suicide  note,  she  

pointed out that she had taken tuitions from the accused,  

Amit, at her residence in Rajgarh Colony and during that  

period had developed a deep friendship with him leading to  

physical relations as well.  He also held out a promise of  

marriage  but  later  backed  off  and  when  she  remonstrated  

with him and reminded him of his promise he threatened to  

expose and defame her in case she insisted on meeting him.  

She stated in the suicide note that the accused continued  

to have sexual relations with her but also compelled her to  

have sexual relations with others as well.  Frustrated and  

feeling exploited, Sunita thus committed suicide.

2.2 The  learned  Additional  Sessions  Judge,  Karkardooma  

Courts,  Delhi,  by  his  judgment  dated  21st April,  2008,  

relying  primarily on the dying declaration which was the  

suicide note, convicted the accused under Section 306 of  

the IPC and sentenced him to rigorous imprisonment for 10

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years with a fine of Rs.5,000/- and in default of payment  

of fine, to undergo rigorous imprisonment for six months in  

addition, and to imprisonment for life under Section 376 of  

the IPC and a fine of Rs.5000/-  and in default, to undergo  

rigorous imprisonment for six months; both the sentences to  

run concurrently.

2.3 An appeal was thereafter taken by the accused to the  

High Court.  The High Court vide  the impugned judgment  

held that a case under Section 306 was not made out and the  

accused  was  entitled  to  acquittal  under  that  provision  

but  on  the  question  of  the  offence  under  Section  376  

observed as under:

“We note that Sunita was aged 21 years and the  appellant was aged 20 years when they indulged  in a promiscuous relationship.  

At the age of 21, Sunita was matured enough to  understand the moral worth of her acts. She was  conscious that by having repeated sex with the  appellant she could become pregnant and hence  the  appellant  had  told  her  to  take  Mala-D  tablets.  

There is some participative act committed by  Sunita. It is not a case where the appellant  forced herself on Sunita.  There is no evidence  that the appellant compelled Sunita to have sex  with the other person. We note that the Sunita  has  only  written  that  the  appellant  was

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compelling her to have sex with a third person.  She has not written that she was actually made  to have sex with a third person.  

Considering the totality of the circumstances  and  noting  that  the  appellant  has  suffered  incarceration for five years and six months and  would be entitled to remissions on account of  his good conduct in jail; noting further that  the  appellant  has  redeemed  himself  in  jail  evidenced by the fact that he took his civil  services examinations and qualified for being  appointed  to  the  Indian  Administrative  Services;  we  are  of  the  opinion  that  the  custodial  sentence  already  suffered  by  the  appellant would meet the ends of justice as a  requisite punishment.”

2.4 An order reducing the term of imprisonment for life  

to that already undergone was, accordingly, made.

3. The present Special Leave Petition has been filed  by  

the National Commission for Women and the only plea raised  

is that the reasons given by the High Court for reducing  

the sentence awarded under Section 376 of the IPC were not  

acceptable as a helpless girl had been cruelly exploited  

and cheated by the accused. This matter came up for motion  

hearing before a Bench of this Court and permission to file  

the  Special  Leave  Petition  was  granted  and  notice  was  

issued on 2nd April 2009.  Respondent No.1, that is the  

State of Delhi, has filed a counter affidavit, in effect  

supporting the case of the  Commission although it has been

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conveyed to us by the learned Additional Solicitor General  

that the State does not propose to file an application for  

leave to appeal against the impugned judgment.  The accused  

has also been served by publication but has not chosen to  

appear in response thereto.

4. Ms.  Priya  Hingorani,  the  learned  counsel  for  the  

petitioner, has forcefully argued that notwithstanding the  

fact that the State had not filed an appeal in the present  

matter  an  appeal  at  the  instance  of  the  Commission  was  

maintainable under the inherent powers of this Court more  

particularly, as leave to file the Special Leave Petition  

had already been granted by order dated  2nd April, 2009.  

It has, accordingly, being submitted that it was not now  

open to this Court to retract on the earlier order and  

revoke  the  permission  and   to  doubt  the  very  

maintainability of the Special Leave Petition.  On merits,  

it has been submitted that the discretion exercised by the  

High Court  while reducing the sentence for the offence  

under Section 376 of the IPC was not called for and merely  

because the accused  had, in the meanwhile, cleared the  

Indian  Administrative  Services   Examination  was  not  a  

relevant consideration.  We are unable to accept the plea

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raised by the learned counsel.

5. Chapter XXIX of the Code of Criminal Procedure deals  

with “Appeal”(s).  Section 372 specifically provides that  

no appeal shall lie from a judgment or order of a Criminal  

Court except as provided by the Code or by any other law  

which  authorizes  an  appeal.   The  proviso  inserted  by  

Section  372  (Act  5  of  2009)  w.e.f.  31st December,  2009,  

gives a limited right to the victim to file an appeal in  

the  High  Court  against  any  order  of  a  Criminal  Court  

acquitting  the  accused  or  convicting  him  for  a  lesser  

offence or the imposition of inadequate compensation.   The  

proviso may not thus be applicable as it came in the year  

2009 (long after the present incident) and, in any case,  

would confer a right only on a victim and also does not  

envisage  an  appeal  against  an  inadequate  sentence.  An  

appeal would thus be maintainable only under Section 377  

to  the  High  Court  as  it  is  effectively  challenging  the  

quantum of sentence. Section 377 is reproduced below:

“377.  Appeal  by  the  State  Government  against  sentence:(1) Save as otherwise provided in sub- section (2), the State Government may, in any  case of conviction on a trial held by any Court  other  than  a  High  Court,  direct  the  Public  Prosecutor  to  present  an  appeal  against  the

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sentence on the ground of its inadequacy-- (a)  to  the  Court  of  session,  if  the  sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is  passed by any other Court.

(2)   If such conviction is in a case in which  the offence has been investigated by the Delhi  Special Police Establishment, constituted under  the Delhi Special Police Establishment Act, 1946  (25 of 1946), or by any other agency empowered  to make investigation into an offence under any  Central Act other than the Code, [the Central  Government  may  also  direct]  the  Public  Prosecutor  to  present  an  appeal  against  the  sentence on the ground of its inadequacy--

(a) to the Court of session, if the  sentence is passed by the Magistrate;  and  

(b) to the High Court, if the sentence is passed by any other Court.

(3)    When an appeal has been filed against  the sentence on the ground of the inadequacy  the Court of Session, or, as the case may be,  the High Court shall not enhance the sentence  except after giving to the accused a reasonable  opportunity  of  showing  cause  against  such  enhancement  and  while  showing  cause,  the  accused may plead for his acquittal or for the  reduction of the sentence.”

6.     This Section specifically provides that it is the  

State Government or the Central Government which can issue  

a direction to the Public Prosecutor to present an appeal  

before the Court of Session or the High Court on the ground  

of inadequacy of the sentence. This Section does not in any  

manner authorize an appeal to the Supreme Court. We are,

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therefore, unable to comprehend as to how the Commission  

was entitled to maintain an appeal in the Supreme Court  

against  the  order  of  the  High  Court.   An  appeal  is  a  

creature of a Statute and cannot lie under any inherent  

power.  This  Court  does  undoubtedly  grant  leave  to  the  

appeal  under  the  discretionary  power  conferred  under  

Article 136 of the Constitution of India at the behest of  

the State or an affected private individual but to permit  

anybody  or  an  organization  pro-bono  publico to  file  an  

appeal would be a dangerous doctrine and would cause utter  

confusion  in  the  criminal  justice  system.   We  are  

,therefore, of the opinion that the Special Leave Petition  

itself was not maintainable.   

7. In Pritam Singh v. State AIR (37) 1950 SC 169 , this  

Court while dealing with a criminal matter (after the grant  

of leave under Article 136 of the Constitution) considered  

the scope and ambit of this Article and observed:

“9.    On  a  careful  examination  of  Article 136 along with the preceding article,  it seems clear that the wide discretionary  power with which this Court is invested under  it is  to be  exercised sparingly and in  exceptional  cases  on1y,  and  as  far  as  possible  a  more  or  less  uniform  standard

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should be adopted in granting  special leave  in the  wide  range  of matters which can  come up before it under this article.  By  virtue of this article, we can grant special  leave in  civil cases, in  criminal cases, in  income-tax cases,  in  cases which come up  before different kinds of tribunals  and  in  a  variety of other cases.  The only uniform  standard  which in our opinion can be laid  down  in  the  circumstances  is  that  Court  should  grant special leave to appeal only  in  those cases  where special circumstances  are  shown  to  exist........It  is  sufficient  for our purpose to say that though we are not  bound to follow them too rigidly since the  reasons,  constitutional  and  administrative,  which   sometimes  weighed  with  the  Privy  Council, need not weigh with us, yet some  of  those principles are useful as furnishing  in  many cases a  sound basis for invoking the  discretion of this Court  in granting special  leave.  Generally speaking, this Court will  not grant special leave, unless it is shown  that  exceptional  and  special  circumstances  exist, that substantial and  grave injustice  has been done and that the case in  question  presents  features  of  sufficient  gravity  to  warrant a  review of  the decision appealed  against.”   

8.  In P.S.R. Sadhanantham  v. Arunachalm And Another (1980)  

3 SCC 141, this Court was dealing with the locus standi of a  

private person in this case a victim's brother, who was  

neither a complainant nor a first informant in the criminal  

case but  had filed  a petition  under Article  136 of  the  

Constitution  of  India.   This  Court  observed   that  the  

strictest vigilance was required to be maintained to prevent  

the abuse of the process of the Court, more particularly, in

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criminal matters, and ordinarily a private party other than  

the complainant, should not be permitted to file an appeal  

under Article 136, though the broad scope of the Article  

postulated an exception in suitable cases.  It was spelt out  

as under:-

“7.  Specificity being essential to legality,  let us if the broad spectrum spread out of  Article 136 fills the bill from the point of  view of “procedure established by law”.  In  express terms, Article 136 does not confer a  right of appeal on a party as such but it  confers  a  wide  discretionary  power  on  the  Supreme Court to interfere in suitable cases.  The  discretionary  dimension  is  considerable  but that relates to the power of the court.  The  question  is  whether  it  spells  by  implication, a fair procedure as contemplated  by  Article  21.   In  our  view,  it  does.  Article 136 is a special jurisdiction.  It is  residuary power; it is extraordinary in its  amplitude,  its  limit,  when  it  chases  injustice,  is  the  sky  itself.   This  Court  functionally fulfils  itself by reaching out  to injustice wherever it is  and this power  is largely derived in the common run of cases  from Article 136.  Is it merely a power in  the court to be exercised in any manner it  fancies?  Is there no procedural limitation  in the manner of exercise and the occasion  for exercise?  Is there no duty to act fairly  while  hearing  a  case  under  Article  136,  either in the matter of grant of leave or,  after such grant, in the final disposal of  the appeal?  We have hardly any doubt that  there is a procedure necessarily implicit in  the power vested in the summit court.  It  must be remembered that Article 136 confers  jurisdiction  on  the  highest  court.   The  founding fathers unarguably intended in the

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very terms of Article 136 that it shall be  exercised by the highest judges of th land  with  scrupulous  adherence  to  judicial  principles well established by precedents in  our  jurisprudence.   Judicial  discretion  is  canalised  authority,  not  arbitrary  eccentricity.”

The  Court  then  examined  the  implications  of  completely  

shutting out a private party from filing a petition under  

Article 136 on the locus standi and observed thus:

“Having said this, we must emphasise that we  are  living  in  times  when  many  societal  pollutants create new problems of unredressed  grievance  when  the  State  becomes  the  sole  repository for initiation o criminal action.  Sometimes,  pachydermic  indifference  of  bureaucratic  officials,  at  other  times  politicisation  of  higher  functionaries  may  result in refusal to take a case to this Court  under Article 136 even though the justice of  lis may well justify it.  While “the criminal  law should not be used as a weapon in personal  vendettas  between  private  individuals”,  as  Lord Shawcross once wrote, in the absence of  an  independent  prosecution  authority  easily  accessible  to  every  citizen,  a  wider  connotation  of  the  expression  'standing'  is  necessary  for  Article  136  to  further  its  mission.”  

9. A  reading  of  the  aforesaid  excerpts  from  the  two  

judgments would reveal that while an appeal by a private  

individual  can  be  entertained  but  it  should  be  done  

sparingly and after due vigilance and particularly in a case  

where the remedy has been shut out for the victims due to  

malafides on the part of the state functionaries or due to

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inability of the victims to approach the Court.  In the  

present matter, we find that neither the State which is the  

complainant nor the heirs of the deceased have chosen to  

file a petition in the High Court.  As this responsibility  

has been taken up by the Commission at its own volition this  

is clearly not permissible in the light of the aforesaid  

judgments.  

10.     Ms. Priya Hingorani's submission with regard to the  

reasons  which  weighed  with  the  Court  while  reducing  the  

sentence must now be dealt with.  Sub-section (1) of 376 of  

the IPC provides for the imposition of a sentence of upto  

ten years or life but the proviso says that the Court may  

for adequate and special reasons, impose a lesser sentence.  

We are of the opinion that the discretion exercised by a  

Court, particularly a superior court, should not be lightly  

interfered with.   We have quoted from the judgment of the  

High Court hereinabove and find that several factors had  

been taken into account while imposing a lesser sentence  

and it would be improper for us to interfere in the High  

Court's  discretion  on  the  quantum  of  sentence  except  in  

extraordinary  circumstances.  We  do  not  see  any  such  

circumstance.  We, accordingly, dismiss the Special Leave  

Petition as not maintainable. The permission to file the

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Special  Leave  Petition  granted  vide  this  Court's  order  

dated 2nd April, 2009,  is, accordingly, revoked.

                  .......................J.          (HARJIT SINGH BEDI)

                  .......................J.

                               (CHANDRAMAULI KR. PRASAD) New Delhi,

    July 23, 2010.