Author: Vejayalakshmi Puli.
JITENDRA V. STATE OF GOVT. OF NCT OF DELHI
CASE NO: C.R.A. 2133-39 of 2017
BENCH: Justice A.K. Sikri and Justice Ashok Bhushan.
JUDGMENT BY: Justice A.K. Sikri.
DATE: October 25, 2018.
The petitioner in this case has filed an appeal against 2 FIRs registered under Section 302/307/34 & 120B/302 IPC respectively.
The accused had murdered one Anil Bandana at a wedding reception within the vicinity of Keshav Puram Police Station apart from which he had shot Mr Kimti Nayyar, father of Sumit Nayyar who had been an eyewitness to mentioned incident and had informed the police regarding the same. The trial court after taking note of the given facts disputed that for offences registered under FIR No. 67 of 1999 the accused be sentenced to rigorous imprisonment for 30 years along with a fine of Rs 3 lakh which was to be paid to the state and deceased Anil’s family accordingly and under Section 307 he would be imprisoned for 10 years with fine of Rs 1 lakh which was to proceed concurrently. Pertaining to FIR No. 68 of 1999, the accused would be undergo rigorous imprisonment for life along with a fine of Rs 3 lakh distributed in the same manner to State being 1 lakh and to the family of Kimti being 2 lakhs. This sentence would run consequently after the completion of sentence as stated in the first FIR.
The High Court found that 2 broad issues arose for consideration being:
- whether the order of the trial court that both the sentences are to run consecutively requires interference or not?
- If the sentences are not to run consecutively, whether the order on sentence in both the appeals requires interference?
With respect to the first issue the High Court referred to the provisions of Section 427(2) of the CrPc on the basis of which it concluded that it was not to run consecutively and with effect to the Issue 2, looking into various judgements and relevant case laws namely Union of India v. V. Sriharan @ Murugan and Ors, Birju v. State of M.P. (2014) 3 SCC 421, Shri Bhagwan v. State of Rajasthan (2016) 6 SCC 296, it was derived that the trial court had exceeded its jurisdiction in awarding the sentences. Thereafter, The High court passed the order amending the sentence by removing the cap of 30 years and sentencing the appellant to the period already undergone, being 16 years and 10 months but due to typographical errors, a fresh order was passed on the 14th of February, 2017 which was thus challenged by the accused.
The learned senior counsel appearing for the appellant argued that the case has not been properly dealt with either by the Trial Court or the High Court, in so far as conviction of the appellant in the two cases is concerned. There was denial of fair trial, illegal conviction and the sentences passed were contrary to law. Relying on the case of Jitendra and Others v. State of Chhattisgarh though the High Court passed the order, reducing the sentence to the period already undergone, it thereafter committed a grave error in rectifying the said order which was beyond its powers and this by no means could be termed termed as a “typographical error” and on that pretext be corrected by the High Court in such a manner as it had become functusofficio after delivering its judgement on December 24, 2016.
The counsel appearing on behalf of the state submitted that during the arguments before the High Court, it was found that the appellant having no case on merits, his counsel pleaded only on sentencing. It was also argued that sanctity of the court record has to be maintained which cannot be questioned by approaching the higher forum. Inspite of this statement, the High Court had, in fact, gone into the evidence and satisfied its conscience to the effect that the trial court had come to a right conclusion about the conviction of the appellant. Arguments were thus built by referring to judgements of that of State of Maharashtra v. Shrinivas Nayak and Another and Muthuramalingam and others v. State represented by Inspector of Police.
OBSERVATION MADE BY THE APEX COURT
The Apex Court looking into the same arrived at the following for consideration:
- Whether the appellant has been rightly convicted for the offences mentioned in the two chargesheets? Incidentally, can such a plea be raised when it was not pressed before the High Court?
- Whether the order of the High Court modifying the sentences as awarded by the trial court is proper and justified?
- Whether the High Court could pass the ‘correction’ orders on February 14, 2017 on the ground that typographical error had been noticed in the main judgment dated December 24, 2016?
With respect to the Issue 1, the contention of Ms. Makhija that counsel for the appellant had made a statement before the High Court without instructions from the appellant cannot be accepted as has also been stated in Para 6 go the High Court judgement as: “6. At the outset, learned counsel for the appellant on instructions has submitted that the appellant does not press the appeals on merits with respect to the judgment on conviction but has laid challenge to the order on sentence passed in both the appeals.” After the judgment was pronounced, at no stage, the appellant took the objection that the aforesaid statement was made without instructions and neither did he approach the High Court with the plea that he had not authorised his advocate to make such a statement. In context to the conviction, it was noted that High Court had examined the witnesses, the investigation by the police, the MLC report which was duly proved by the prosecution and the testimony of FSL Expert (Ballistic Expert).
In dealing with Issue 2, The Apex court noted that as per the High Court view, the trial court tried both the cases under one common order and stated that the sentences awarded are to run consecutively and not concurrently. The High Court opposed the same and stated that they shall run concurrently laying emphasis on Section 427 CrPc being “When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” This was upheld in the matter of Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991.
With reference to Issue 3, The court was of the view that Judgement delivered on February 14, 2017 does not stand judicial scrutiny as by no stretch of imagination, it could be considered a “Typographical Error”. The High Court, in its wisdom, thought it proper to modify the order of sentence to the period already undergone and therefore to meet the ends of justice, removed the cap of 30 years and modified the order on sentence to the period already undergone by the appellant, being 16 years and 10 months. Both the FIRs had a charge of murder as under Section 302 IPC and the minimum sentence for the same is life imprisonment. For that reason, the High Court could not have modified the sentence to the one already undergone. Therefore, modification in the aforesaid manner was clearly erroneous. It appeared as though the High Court realised the mistake and, therefore, made amends by correcting the same in judgement dated February 14, 2017. However, that step taken by the High Court was beyond its jurisdiction. It could have been done only in appeal. Therefore this order was set aside
The Court passed the order setting aside the judgement dated February 14, 2017 and judgement dated December 24, 2016 dealing only with the part of modification. The rest of the judgement was upheld being the conviction of the appellant where in the sentences are to run concurrently and he shall be awarded life imprisonment in both the cases with the condition that he will have no right to seek remission till the completion of 30 years of rigorous imprisonment. Thus the appeals of the accused were set aside and that of the State was partially allowed to the aforesaid extent.
About the Author: Vejayalakshmi is a 2017-22 Batch student at Gujarat National Law University, Gandhinagar.
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