Vijay vs State Of Madhya Pradesh

This criminal revision under Sections 397, 401 of CrPC has been filed calling in question the judgment dated 24/06/2017, passed by XIV Additional

Sessions Judge, Indore in Criminal Appeal No.269/2017, thereby affirming the conviction of the applicant under Section 14 of Madhya Pradesh Rajya

Suraksha Adhiniyam, awarded by judgment and sentence dated 10/03/2017 passed by JMFC, Deepalpur, District Indore in Criminal Case

No.935/2011, by which the applicant has been awarded the jail sentence of rigorous imprisonment of one year and a fine of Rs.200/-with default

imprisonment.

The necessary facts for the disposal of the present revision in short are that on 10/10/2011, the Police Station Betma, District Indore received an

information that one person against whom the order of externment is in force, is moving around in Jivan Jyoti Colony, Betma, District Indore and

accordingly, the said person was arrested and disclosed his name as Vijay, son of Dhanna and also accepted that there is an order of externment

against him and accordingly, an offence under Section 14 of Madhya Pradesh Rajya Suraksha Adhiniyam was registered in Crime No. 439/2011.

During the investigation, it was found that an order of externment was passed by ADM, Indore on 30/06/2011, thereby directing him to remove

himself from Districts of Indore, Ujjain, Dewas, Dhar, Khargone and Khandwah and in utter violation of the said order, the applicant was found in

Jivan Jyoti Colony, Betma, District Indore on 10/10/2011. Accordingly, after concluding the investigation, the police filed charge sheet against the

applicant for offence under Section 14 of Madhya Pradesh Rajya Suraksha Adhiniyam. The trial Court framed the charge under Section 14 of

Madhya Pradesh Rajya Suraksha Adhiniyam.

The applicant abjured his guilt and pleaded not guilty. The prosecution, in order to prove its case, examined Rajesh (PW1), Inder Singh (PW2),

R.S.Makwana(PW3), and Vijay Khare (PW4), whereas the applicant did not examine anybody in his defence.

The trial Court (JMFC, Deepalpur, District Indore) by judgment dated 10/03/2017 passed in Criminal Case No.935/2011, convicted the applicant for

offence under Section 14 of Madhya Pradesh Rajya Suraksha Adhiniyam and sentenced him to undergo the rigorous imprisonment of one year and a

fine of Rs.200/-, with default imprisonment.

Being aggrieved by the judgment and sentence passed by the trial Court, the applicant filed an appeal which was registered as Criminal Appeal

No.269/2017 and by the judgment dated 24/06/2017, passed by XIV Additional Sessions Judge, Indore, the appeal filed by the applicant has been

dismissed and the judgment and sentence passed by the trial Court, has been affirmed.

Challenging the judgments and sentences passed by the Courts below, it is submitted by the counsel for the applicant that the independent witnesses of

arrest of the applicant have not supported the prosecution case and the evidence of R.S.Makwana (PW3) is not reliable and trustworthy, therefore,

the conviction of the applicant is bad in law and thus, is liable to be set aside.

Per contra, it is submitted by the counsel for the State that merely because the independent witnesses of arrest have turned hostile, would not mean

that the evidence of R. S. Makwana (PW3) cannot be relied upon merely on the ground that he is a police personnel. It is further submitted that the

applicant, in utter violation of the order dated 30/06/2011 passed by ADM, Indore in Case No.23/2011, by which he was directed to remove himself

from the Revenue Districts of Indore, Ujjain, Dewas, Dhar, Khargone and Khandwah, was found within the limits of Revenue District of Indore.

Therefore, the conviction of the applicant under Section 14 of Madhya Pradesh Rajya Suraksha Adhiniyam has been rightly recorded by the Courts

below and the applicant has not pointed out any perversity in the findings given by the Courts below and thus, in exercise of powers under Sections

397, 401 of CrPC, the concurrent findings of fact recorded by the Courts below may not be interfered in absence of any perversity.

Heard the learned counsel for the parties.

Vijay Khare (PW4) who was working on the post of Reader, Office of the Collector, Indore, has proved the order of externment dated 30/06/2011

passed by ADM, Indore in Case No.23/2011, according to which the applicant was directed to remove himself from the limits of Revenue Districts of

Indore, Ujjain, Dewas, Dhar, Khargone and Khandwah for a period of six months from 07/07/2011 i.e. the date from which the order of externment

was made effective. It is the prosecution case that the applicant was found on 10/10/2011 in Jivan Jyoti Colony, Betma which is within the area of

Revenue District of Indore. Although Rajesh (PW1) and Inder Singh (PW2) are the witnesses of the arrest memo and they have turned, but the entire

prosecution case hinges on the evidence of R.S.Makwana (PW3),Assistant Sub-Inspector, who had arrested the applicant on 10/10/2011 from Jivan

Jyoti Colony, Betma, District Indore.

It is well-established principle of law that evidence of a witness cannot be discarded merely because he is a police personnel. In the present case, R.S.

Makwana (PW3) has stated that on 10/10/2011 he had received an information that one person against whom an order of externment is in force, is

standing near Shiv Temple situated in Jivan Jyoti Colony, Betma, District Indore and accordingly, the said person was apprehended on the spot, who

disclosed his name as Vijay and who also admitted that the order of externment is in force against him. Accordingly, the applicant was arrested vide

arrest memo Ex.P1 for violation of the order dated 30/06/2011 passed by ADM, Indore. The FIR Ex.P4 was registered for offence under Section 14

of Madhya Pradesh Rajya Suraksha Adhiniyam. This witness was cross-examined and it was admitted by him that the applicant is known to this

witness from the year 2005 and he has specifically stated that prior to that, he had never registered any case against the applicant. It is further

submitted by this witness that in police station Kotwali, District Mhow, about 25-30 cases were registered against the applicant, which are pending in

the Court at Mhow. If the evidence of R.S. Makwana (PW3) is considered, then it is clear that although the applicant was known to this witness from

the year 2005, but he had never registered any case against him. Thus, it is clear that R.S.Makwana (PW3) had no bias against the applicant. Further,

the applicant has not taken any defence to prima facie show that where he was residing after the order of externment Ex.P5 was passed against him

on 30/06/2011. The applicant could have examined some witnesses to show that after the order of externment was passed, he had removed himself

from the area of Revenue Districts as directed in the order of externment and he was residing during that period at a particular place. Under these

circumstances, this Court is of the considered opinion that there is no reason for this Court to disbelieve the evidence of R.S.Makwana (PW3) to the

effect that the applicant was arrested on 10/10/2011 in Jivan Jyoti Colony, Betma, District Indore and on that date, the order of externment Ex.P.5

was in force against him. Furthermore, the counsel for the applicant could not point out any perversity in the judgments passed by the Courts below

and thus, it is held that the prosecution has succeeded in establishing that the applicant has violated the order of externment passed against him on

30/06/2011 and was found in Jivan Jyoti Colony, Betma, District Indore and thus, he is held guilty of committing offence under Section 14 of Madhya

Pradesh Rajya Suraksha Adhiniyam.

It is next contended by the counsel for the applicant that the minimum sentence provided for offence under Section 14 of Madhya Pradesh Rajya

Suraksha Adhiniyam is four months and the applicant had remained in jail for a period of 42 days during the pendency of the trial and has remained in

jail from 24/06/2017 after dismissal of his appeal and thus, he has remained in jail for a period of more than four months and accordingly, it is clear that

the applicant has already undergone the minimum jail sentence as provided under Section 14 of Madhya Pradesh Rajya Suraksha Adhiniyam.

Therefore, the period already undergone by the applicant is sufficient to meet the ends of justice as the applicant had regularly attended the

proceedings before the trial Court as well as before the appellate Court.

So far as the submissions made by the counsel for the applicant that the applicant had remained in jail from 24/06/2017 i.e. after dismissal of the

appeal and he was granted bail by this Court by order dated 22/09/2017 is concerned, the same does not appear to be correct. The present criminal

revision was filed by the applicant on 21/07/2017. From the order dated 24/06/2017 passed by the appellate Court, it is clear that on the date of

delivery of judgment by the appellate Court, the applicant was not present before the appellate Court and accordingly, the trial Court was directed to

issue warrant of arrest against the applicant to ensure that the applicant undergoes the jail sentence. From the record of the trial Court, it is clear that

the applicant surrendered before the trial Court on 29/06/2017. Thus, it is clear that the applicant had remained in jail for a period of 42 days during the

pendency of trial and was sent to jail on 29/06/2017 after dismissal of his appeal and was granted bail by this Court by order dated 22/09/2017, but the

question is that whether the sentence of rigorous imprisonment of one year awarded to the applicant is liable to be reduced to the period already

undergone by the applicant or not ?

It is the contention of the applicant that the applicant had attended the proceedings of the trial Court as well as the proceedings of the appellate Court

regularly. To buttress his contention, the counsel for the applicant has relied upon the order dated 25th day of February, 2013 passed by this Court in

the case of Gobbu alias Dinesh vs. State of MP in CRR No.9/2013 and the order dated 23/02/2018 passed by this Court in the case of Shakil vs. State

of MP in CRR No.353/2018.

Considered the submissions made by the counsel for the applicant.

From the record of the trial Court as well as the appellate Court, it is clear that the applicant never attended the proceedings of the trial Court as well

as the appellate Court regularly and on maximum occasions he was not present. Further, he did not appear before the appellate Court on 24/06/2017,

i.e. on the date of delivery of judgment.

The Supreme Court in the case of State of Punjab vs. Saurabh Bakshi, reported in (2015) 5 SCC 182 has held as under :

''1. Long back, an eminent thinker and author, Sophocles, had to say:

“Laws can never be enforced unless fear supports them.â€​

Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today’s society. It is the

duty of every right-thinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that

law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept

of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to

judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of

the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilized manner that law cannot bind the individual actions which

are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in

a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of

the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind

itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be

marginalized. In this context one may recapitulate the saying of Justice Benjamin N. Cardozo “Justice, though due to the accused, is due to the

accuser too.†And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of

sentimentality nor to be governed by prejudices.

While dealing with the policy of sentencing in Gopal Singh the two-Judge Bench quoted a paragraph from Shailesh Jasvantbhai v. State of Gujarat

which is as follows: (Gopal Singh case, SCC p. 551, para 16)

“16......….‘7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an

essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living

law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of

lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which

must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges

confronting the society. Friedman in his Law in Changing Society stated that: ‘State of criminal law continues to beâ€"as it should beâ€"a decisive

reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or

deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants

to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for

commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which

would enter into the area of consideration.’ (Shailesh Jasvantbhai case, SCC pp. 361-62, para 7)â€​

In the said case it has been laid as follows: (Gopal Singh case, SCC pp. 551-52, para 18)

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle

of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in

respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion

to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum

of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu,

the effectâ€" propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the

interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to

the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed

manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be

dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor

hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender

cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in

which the crime has been committed and other concomitant factors which we have indicated herein-before and also have been stated in a number of

pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be

embedded in the conceptual essence of just punishment.â€​

Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative

necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed

away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely

in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is “the crowning gloryâ€, “the sovereign mistress†and

“queen of virtue†as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters

the faith of the public in judicial system.

The order issued under Section 3 of Madhya Pradesh Rajya Suraksha Adhiniyam, is preventive in nature. It is clear from the externment order dated

30/06/2011 as many as 8 criminal cases including murder, etc. were registered against the applicant and in spite of the order to the applicant to remove

himself from the limits of Indore District as well as from the surrounding Districts i.e. Ujjain, Dewas, Dhar, Khargone and Khandwah, the applicant

flouted the order of externment and was found within the District of Indore. As already held by the Supreme Court in the case of Sourabh Bakshi

(supra) the sentencing policy must have the element of deterrence also and since, the applicant did not improve himself, therefore, no lenient view can

be adopted while awarding the jail sentence. Accordingly, the sentence of rigorous imprisonment of one year and a fine of Rs.200/-, with default

imprisonment, imposed by the Courts below do not call for any interference. Hence, the judgment and sentence dated 24/06/2017 passed by appellate

Court (XIV Additional Sessions Judge, Indore) in Criminal Appeal No.269/2017 and the judgment and sentence dated 10/03/2017, passed by the trial

Court (JMFC, Deepalpur, District Indore) in Criminal Case No.935/2011, are hereby affirmed.

The applicant is on bail. His bail bonds and surety bonds are discharged.

The applicant is directed to immediately surrender before the trial Court for undergoing the remaining jail sentence.

This revision fails and is hereby dismissed.