In a peculiar, pertinent, progressive, path-breaking and pragmatic judgment titled Aslam Salim Shaikh vs The State of Maharashtra and Another in Criminal Writ Petition No. 3157 of 2022 that was reserved on June 16, 2023 and then finally pronounced in the exercise of its criminal appellate jurisdiction we find that a man who had been sentenced to 83 years in jail was directed to be released by the Bombay High Court after it noted that he was convicted after pleading guilty in 41 theft cases before Trial Courts since he could not afford a lawyer. It must be mentioned that a Division Bench of Hon’ble Ms Justice Revati Mohite Dere and Hon’ble Ms Justice Gauri Godse noted that the petitioner was 21 years old when he was booked in 38 cases and he was a juvenile when he was booked in 3 cases. Besides, he had already spent 9 years in prison.
We thus see that the Division Bench made it absolutely clear that a jail sentence should have not only a deterrent aim but also a reformative aim so that the offender is not demoralized and he is afforded an opportunity to improve himself. More to the point, the Court very commendably underscored that any sentence imposed by courts must maintain a proper balance between the deterrent and reformative objects of sentencing policy. No denying it.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Revati Mohite Dere for a Division Bench of Bombay High Court comprising of herself and Hon’ble Ms Justice Gauri Godse sets the ball in motion by first and foremost putting forth in para 2 that:
Rule. Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal. Learned A.P.P waives notice on behalf of the respondents–State.”
Frankly speaking, the Division Bench points out in para 3 that:
This is a glaring case warranting interference of this Court, as a protector of the fundamental right to life and personal liberty, lest there would be serious miscarriage of justice. The facts in the instant case, warrants exercise of our writ jurisdiction, as well as inherent jurisdiction, to do justice, for which the Courts exists.”
Tersely put, the Division Bench envisages in para 4 that:
Briefly stated the facts are as under:
The petitioner, currently aged 30 years, has filed the petition through the Legal Services Authority, invoking our writ jurisdiction as well as inherent powers, and as such, seeks a direction, that the sentences of imprisonment awarded to the petitioner, by different Courts, in 41 cases, run concurrently. The petitioner also seeks setting aside of the fine amount of Rs.1,26,400/- (total), passed by the various Courts in 41 cases. The petitioner is in custody since 3rd December 2014. The petitioner was arrested and prosecuted essentially for the offences pertaining to theft in 41 cases by different police stations. According to the petitioner, he was falsely implicated in the said cases and being ill-literate and unaware of the niceties of law and having regard to his financial condition, being unable to engage a lawyer, he pleaded guilty in all the 41 cases, under a bonafide belief that he would be released from prison for the period already undergone by him as an undertrial prisoner.” Due to paucity of space the details of the 41 cases are not being elaborated upon here.
As we see, the Division Bench points out succinctly in para 3 that:
It appears, that on arrest in one case, the petitioner came to be arrested in the other cases, on transfer warrant. As noted above, the petitioner has pleaded guilty in all the 41 cases and has been sentenced to imprisonment and payment of fine, as stated aforesaid. Although, some of the cases were pending before the same Court, there is no direction that the sentences to either run concurrently/consecutively.”
Needless to say, the Division Bench then states clearly in para 5 that:
Thus, it is evident that the Court has the power and discretion under Section 427(1) of Cr.PC, to issue a direction that all the subsequent sentences run concurrently with the previous sentence. However, the said discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts of the case. Admittedly, in none of the cases as reflected in the chart aforesaid, though some of the cases were tried by the same Court and arose from the same police station, there is no specific direction or order by the said Court, that the subsequent sentences to run concurrently with the previous sentence. There is no specific direction issued by the trial Court, before whom there were more than one case pending, in terms of Section 427(1) Cr.PC allowing the subsequent sentences to run concurrently.”
Be it noted, the Division Bench notes in para 6 that:
We find that the Courts before whom there was more than one case pending before them, had failed to exercise their discretion. It appears that the petitioner was not defended by any advocate nor does it appear that he was offered any legal aid by the trial Court. It appears that the petitioner was only 21 years and his family members were dependent on him. It appears that the petitioner pleaded guilty with a belief that he would be released on undergone sentence. It is the petitioner’s case, that he had prayed for leniency on the premise that he belonged to a poor family and that his family was dependent on him, however, whilst handing over the sentence and whilst imposing fine, the prayer of the petitioner was not taken into consideration. None of the Courts have considered these factors. Infact, 3 cases, out of the 41 cases, are of 2008, 2010 and 2011. If according to the prosecution, he was about 21 years of age in 2014, he most certainly, was a juvenile in conflict with law, in 2008, 2010 and may be even in 2011. None of the Courts even dwelled into the dates, presumably because, the petitioner pleaded guilty in the said 3 cases, in 2016.”
Quite remarkably, the Division Bench enunciates in para 7 that:
The sentencing policy of criminal jurisprudence mandates Courts to pass such sentences as would meet its primary twin objects of deterrence and re-formation. The deterrent effect of a sentence is to prevent the commission of a similar offence by the convict by confining him to jail and to prevent the prospective offenders from committing such a crime. Infact, compensation some times can be said to have such a deterrent effect. However, the same would depend upon the facts of each case. The sentence of imprisonment should also have a reformative aim, inasmuch as, it should not demoralize the offender and infact, the offender should be given an opportunity depending on the nature of offence to improve himself. Thus, any sentence imposed by any Courts must maintain a proper balance between the deterrent and reformative objects of a sentencing policy and must ensure that the said object is sufficiently met.”
Most remarkably, the Division Bench propounds in para 8 that:
As noted from the chart reproduced hereinabove, if the petitioner is permitted to undergo imprisonment in all the aforesaid cases, he would be compelled to undergo imprisonment of approximately 83 years 3 months and 5 days, and since he is not in a position to pay the fine, for non-payment of the fine amount, he would require to undergo imprisonment of further 10 years 1 month and 26 days i.e. a total of 93 years 5 months, his entire life, with no hope whatsoever, to even come out of jail. A sentence, more than what a life convict would have to undergo for murder. If permitted, this would certainly lead to travesty of justice. Being alive to this reality, we cannot permit this miscarriage of justice.”
Most forthrightly, the Division Bench postulates in para 9 that:
In this context and having regard to the peculiar facts, it is apposite to quote the words of Earl Warren ‘It is the spirit and not the form of law, that keeps justice alive.’ The petitioner was about 21 years old at the relevant time when he was booked in the aforesaid 38 offences and in 3 cases, a juvenile in conflict with law. All, except 3 offences pertain to the period 2014 to 2015. As noted above, it appears that the petitioner could not afford to engage a lawyer having regard to his financial condition and hence pleaded guilty in all the 41 cases. Infact, even the present petition is filed through jail. Since, the cases were tried by different Courts, we are unable to invoke Section 427(1) Cr.PC. However, at the same time, we cannot be oblivious, to the fact, that there will be serious miscarriage of justice, if we fail to interfere and exercise our discretion, in writ jurisdiction as well as under our inherent powers, in the peculiar facts of this case. Courts exist to do justice, and this is one such case, that begs our interference.”
It is worth noting that the Division Bench notes in para 10 that:
As rightly said by William Scott Downey, ‘Law without justice is a wound without a cure’. Hence, in exercise of our writ and inherent jurisdiction, we deem it appropriate to put right the clock, to prevent miscarriage of justice, failing which the petitioner would remain incarcerated for more than 90 years, in 41 cases (total), for committing ‘theft’, with no prospect of coming out of jail anytime in the future. The actual period of imprisonment undergone by the petitioner is more than 9 years and without remission more than 11 years. The petitioner was 21 years old and is now about 30 years of age.”
Most significantly, the Division Bench clearly states in para 11 that:
We have perused a few of the FIRs to satisfy our conscience, with respect to the nature of offences alleged to have been committed by the petitioner. It appears that the said FIRs have been lodged against unknown person/persons. The material in some of the cases, if trial had commenced may have probably ended into petitioner’s acquittal, for want of evidence. It was the bounden duty of the learned Magistrates to have at least perused the papers before awarding the sentences, more particularly, when the petitioner had pleaded guilty, so as to ensure that the sentences awarded were commensurate with the evidence on record against the petitioner. The learned Judge has also failed to consider, that the petitioner/accused was a juvenile in conflict with law, in cases of 2008, 2010 and may be even in 2011, as it is the prosecution’s case, that the petitioner was 21 years of age in 2014.”
Truth be told, the Division Bench mandates in para 12 that:
It is well settled that when there is grave error of law apparent on the face of record or there is a miscarriage of justice, resulting from the orders passed by the Courts below or when it is necessary for enforcing fundamental or legal rights or to meet the ends of justice, the Court can certainly entertain a petition of this nature.”
It would be germane to note here that the Division Bench expounds in para 13 that:
Section 482 Cr.PC can be invoked to render complete justice. It can be exercised to give effect to an order under Cr.PC to prevent abuse of the process of the Court; and, to secure the ends of justice. In short, Section 482 Cr.PC is a reminder to High Courts, that they are not merely Courts of law, but also Courts of justice and as such possess inherent powers to remove injustice. The petitioner, in the facts, has no other effective alternative remedy to redress his grievance/injustice, that will be caused to him. Inherent jurisdiction is to be exercised ex debito justitiae to do real and substantial justice for which alone, Courts exist.”
As a corollary, the Division Bench then holds in para 14 that:
Hence, in the peculiar facts, we exercise our writ jurisdiction, as well as, inherent powers and allow the petition, lest, there is travesty of justice. Hence, we pass the following order:
ORDER
- The petitioner be released forthwith, on undergone sentence, in all the 41 cases reproduced hereinabove, unless required in any other case.
Finally, the Division Bench concludes by holding in para 15 that:
Petition is allowed and disposed of in above terms. Rule is made absolute in the aforesaid terms. All concerned to act on the authenticated copy of this judgment.”
All told, we thus see that the Bombay High Court in this notable judgment very rightly catches the bull by the horns and does not waver at all in most commendably ordering the release of a man who was sentenced to 83 years in jail after he couldn’t hire lawyer and had undergone 9 years in prison already which was totally unjustified. There can be no gainsaying that all the courts must definitely pay heed to what the Bombay High Court has held in this leading case and in similar such cases act accordingly. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
