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PETITIONER: SURAJ BHAN

       Vs.

RESPONDENT: OM PRAKASH AND ANR.

DATE OF JUDGMENT02/02/1976

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SHINGAL, P.N. SINGH, JASWANT

CITATION:  1976 AIR  648            1976 SCR  (3) 299  1976 SCC  (1) 886

ACT:      Code of Criminal Procedure 1973 (Act 2 of 1974)-S. 428- Scope of-Whether  contemplates any  challenge to conviction- Procedure to invoke the section.      Practice-Interference by  the Supreme  Court under Art. 136 of  the Constitution,  when the Criminal Revision before the High  Court for  enhancement of  the sentence has become infructuous, by  virtue of a judgment in the Criminal Appeal which has  become final  u/s 393 of Crl. P.C. 1973 (Act 2 of 1974) is not Droner.

HEADNOTE:      The respondent  "OP" inflicted  five stab wounds on the appellant "S" on 19-4-1973 but the appellant survived thanks to prompt medical attention and are immediate operation. The trial court  convicted "OP"  under section 307 I.P.C. by its judgment  dated  26-2-74  and  sentenced  him  to  10  years rigorous imprisonment  and also  to a  fine of Rs. 200/- The accused "OP"  filed a  Criminal Appeal  No. 442/74)  in  the Punjab High  Court on the ground that he was entitled to set off u/s  428 of  the Crl.  P.C. 1973  (Act 2  of 1974),  the period of  his detention  as an under trial prisoner against the period  of imprisonment  imposed upon him. The appellant "S" also  filed a  Criminal Revision  No. 606/  74 74 in the High Court  for enhancement  of  the  sentence  against  the accused. Since there was no opposition from the State to the plea in  the criminal  appeal, the  High Court accepting the appeal, reduced  the sentence of the term of imprisonment to that already  undergone by  him. Against  the  said  appeal, there was  no further  appeal either  by the State or by "S" and therefore the orders became final. The criminal revision filed by  "S" was  however dismissed  separately by the High Court for  the "reasons  recorded  in  Criminal  Appeal  No. 442/74". Unable  to obtain leave under Art. 134(1)(c) of the Constitution, "S" obtained special leave after notice to the accused "OP" and the State.      Dismissing the appeal, the Court ^      HELD: (1)  It is  clear from  S. 428  of  the  Criminal Procedure Code, 1973 (Act 2 of 1974) itself that even though the conviction  was prior  to the enforcement of the code of

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criminal procedure benefit of Section 428 would be available to such a conviction. Indeed S. 428 does not contemplate any challenge to  a conviction  or  a  sentence.  It  confers  a benefit on  a convict  reducing  his  liability  to  undergo imprisonment out  of the  sentence imposed  for  the  period which he  had already  served as  an under  trial  prisoner. [301H, 302A]      (2)  The  procedure  to  invoke  Section  428  Criminal Procedure Code  could be  a Miscellaneous application by the accused to the court at any time while the sentence runs for passing appropriate  order reducing the term of imprisonment which is the mandate of the section. [302A]      (3) In  the instant  case, in  the absence of an appeal against the  judgment of  the High  Court in Criminal Appeal No. 442/74  either by  the State  or by  the  injured,  that judgment has  become final.  The scope  of criminal revision before the  High Court was whether the sentence of ten years should  be   further  enhanced,  but  that  sentence  itself disappeared by  virtue of  the judgment of the High Court in the Criminal  Appeal. The criminal revision therefore became infructuous and  the Supreme  Court can  do nothing about it while the  judgment of  the High  Court  remains  operative. 1302D, E-P]      Obiter:  The  order  of  the  High  Court  was  clearly unsustainable  even   in  terms   of  section  428  Criminal Procedure Code as the only set off which was 300 urged for  under the section and which was admissible, was a period of about nine months of pretrial detention.      [The  Court  disapproved  of  such  a  grossly  lenient      sentence imposed  by the High Court and deprecated that      the State  ignored to  take notice  of such  a  grossly      lenient sentence  and for  not preferring  an appeal to      the Court.]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 381 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the  10th January, 1973 of the Punjab and Haryana High Court at Chandigharh in Criminal Revision No. 606 of 1974.      V. C.  Mahajan, S.  K. Mehta and K. R. Nagaraja for the Appellant.      Ch. Ram Sarup and R. A. Gupta for Respondent No. 1      H. S. Marwah and S. P. Nayar for Respondent No. 2      The Judgment of the Court was delivered by j,      GOSWAMI,  J.-On  April  19,  1973,  the  respondent  Om Parkash  (hereinafter   to  be  described  as  the  accused) inflicted as many as five stab wounds on the appellant Suraj Bhan. The  injuries were  very severe  as will be found from the description given below:-           "1.  Incised wound  5 cm  x 2 cm x oblique spindle                shape on  the  left  side  of  the  front  of                abdomen, 8 cm below the xiphisternum and 6 cm                to the   left  of mid line. Depth ‘not probed                edges were fresh.           2.   Incised wound  2  1/2 cm x 1 cm oblique, 6 cm                on   the left  and 2  cm above  injury No. 1,                spindle J  shaped. Edges were fresh and depth                was not probed.           3.   Incised wound  2 1/2  cm x  1 cm  horizontal,                spindle shaped  6 cm  above the left anterior                superior iliac spine Depth was not probed and

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              edges were fresh.           4.   Incised wound  1 cm  X 1/4  cm X  2 mm  deep,                horizontal 6  cm inner to end at the level of                f left  anterior superior  iliac spine, edges                were fresh.           5.   Penetrating wound  5 cm  x 2  1/2 cm x cavity                deep, horizontal on the front of abdomen 2 cm                to the  right of  mid line  10 cm  below  the                level of  xiphisternum, edges  were clean cut                and  fresh   the  coils  of  small  intestine                protruding through the wound." The appellant had also to under-go an operation. There is no doubt that  prompt and  proper medical attention alone saved the i‘ appellant from death.      The accused  was convicted under section 307 IPC by the trial court  by its  judgment dated  February 26,  1974  and sentenced to  10 years’  rigorous imprisonment and also to a fine of  Rs. 200/-  in default rigorous imprisonment for one year. Although the accused gave his 301 age as 19 years, according to the trial court he appeared to be aged about 23 years.      The accused  appealed to  the High  Court  against  his conviction and sentence. The appeal was numbered as Criminal Appeal No.  442 of 1974. The injured Suraj Bhan also filed a Criminal Revision  Application being numbered as 606 of 1974 for enhancement  of the  sentence passed on the accused. The appeal was  decided by  a learned  single Judge  of the High Court of  Punjab and Haryana on January 10, 1975. It appears from the  judgment of  the High  Court in  that appeal  that conviction of the accused was not challenged. The only point that was argued was that the accused was entitled to set off the period  of his  detention as  an  under  trial  prisoner against the  period of  imprisonment imposed  upon him under section 428  of the  Criminal Procedure Code 1973 (Act No. 2 of 1974)  which came  into force  from  April  1,  1974.  It appears also from the judgment that the State did not oppose the aforesaid  submission on  behalf  of  the  accused.  The learned single  Judge, therefore,  passed the  order in  the following terms:-           There is  force in  this submission of the learned      counsel which is not opposed by the State counsel. I am      of the view that the ends of justice will be met if the      term  of   imprisonment  of  the  convict-appellant  is      reduced to that already undergone by him." Having said.  so the  learned  single  Judge  dismissed  the appeal maintaining  the conviction and reduced the accused’s term of imprisonment to that already undergo by him and also maintained  the   sentence  of  fine.  Including’  the  pre- conviction detention  the accused  served only  one year and eight months of the sentence.      It appears  the State  did not  choose  to  prefer  any appeal against the grossly inadequate sentence passed by the High Court.  On the  other hand the injured Suraj‘ Bhan made an application  to the  High  Court  for  a  certificate  of fitness for  leave to  appeal to  this Court  under  article 134(1)(c) of the Constitution without success and thereafter obtained special  leave from  this Court after notice to the respondents including  the State  to show  cause why special leave to appeal should not be granted.      We have  described the above facts in some detail as we fail to  appreciate why  the State  in this case should have ordinarily ignored  to take notice of such a grossly lenient sentence. G      The order  of the  High Court was clearly unsustainable

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even in  terms of  section 428,  Criminal Procedure Code, as the only  set off  which was urged for under the section and which was  admissible, was  a period  of about  nine  months which the  accused had  served as  an under  trial  prisoner prior to the conviction.      It is  also clear  from section 428, Criminal Procedure Code itself that even though the conviction was prior to the enforcement of  the Code  of Criminal  Procedure, benefit of section 428 would be avail able to such a conviction. Indeed section 428 does not contemplate any   5-L522SCI/76 302 challenge to  a conviction  or  a  sentence.  It  confers  a benefit on  a convict  reducing  his  liability  to  undergo imprisonment out  of the  sentence imposed  for  the  period which he  had already served as an under trial prisoner. The procedure to  invoke section  428, Criminal  Procedure Code, could be  a miscellaneous  application by the accused to the court at  any time  while the  sentence runs  for passing an appropriate order  for reducing  the  term  of  imprisonment which is the mandate of the section.      In the  appeal before the High Court there was no scope for the High Court to reduce the sentence only to the period already under  gone under  section 428,  Criminal  Procedure Code, in view of the only point argued before it.      Since in  an attempt  to murder  hurt was  caused,  the maximum punishment  under second  part of  section  307  IPC would  be   imprisonment  for  life.  The  injured  was  not satisfied with the maximum punishment of ten years contained in the first part of the section and moved the High Court in revision for  enhancement of  the sentence. The revision was separately discussed  by the  High Court  for  the  "reasons recorded in  Criminal Appeal No. 442 of 1974" and it is this order of  the High  Court in revision that special leave was obtained by the appellant.      In the absence of an appeal against the judgment of the High Court in Criminal Appeal No. 442 of 1974. either by the State or  by the  injured, that  Judgment has  become  final which means  that the accused’s sentence remains to be for a period of  one year and eight months and a fine of Rs. 200/- in default rigorous imprisonment for one year.      The scope  of the  criminal revision  before  the  High Court was  whether the  sentence  of  ten  years  should  be further enhanced  but that  sentence itself  disappeared  by virtue of  the Judgment  of the  High Court  in the criminal appeal.  The   criminal   revision,   therefore,   be   came infructuous and  we  can  do  nothing  about  it  while  the Judgment of  the High Court remains operative. Unfortunately that judgment  in the  criminal appeal  is not  before us in this Court. Although, therefore, we cannot approve of such a grossly lenient  sentence in  the present  case, we  have no other alternative  than to  dismiss the  present appeal. The appeal is, therefore, dismissed. S.R.                                       Appeal dismissed. 303