Beyond The Law : A Take On Two Recent Judicial Orders

Jesus Christ was made to stand with thieves by a court of law. Socrates was sentenced by a court of law to drink a cup of poison for being the most truthful person in his country. Galileo was punished by a court of law to refuse to believe myths from what he learnt from his experiments. Slavery was once legal and courts of law punished for it. Last Mughal king, Bahadur Shah Zafar was prosecuted, punished and transported by order of a court of law not considering that he was a sovereign. Tilak and Gandhi were punished for sedition by a government and its court of law, in which they did not believe. All of them are equally unfortunate experiences, but not illegal. There were laws, howsoever erroneous they may be, and courts of law enforced them following the mandate.

In quite contrast, two less debated but extremely relevant recent orders reported by LiveLaw demand special attention here. Both courts, one of which is a court of record and its orders carry high precedential value, passed orders on laws which do not find place in the statute books and point out how whimsical and judge centric the sentencing in criminal law has become. The Gujarat High Court scrapped the jail term for an accused, on the submission that he had contributed to a religious trust and a Tamil Nadu court ordered 3 students to recite 100 Thirukkural treatise verses daily for 10 days as a condition for bail in an assault case.

The Gujarat High Court was hearing an appeal u/s 374 CrPC against a judgment passed by the Sessions Judge, convicting the appellant and sentenced to undergo three months imprisonment and to pay a fine of Rs.500/- for the offence punishable under Section 344 IPC. The High Court took on record a plea by the appellant that he had deposited Rs.50,000/- to one Shree Chamunda Mataji Dungar Trust and without expressing any opinion on merits of the case, quashed and set aside the sentence passed by the Sessions Court. It is pertinent to note that no such reason was assigned to do so by the Judge.

Section 344 lays down that whoever wrongfully confines any person for ten days or more, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 344 also finds mention in Section 320(2) CrPC and can only be compounded with leave of the court. U/s 386 CrPC, an appellate court may either dismiss the appeal or as u/s 386(b) in an appeal from conviction, reverse the finding and sentence, acquit/discharge, order retrial, alter the finding while maintaining the sentence or with/without altering the finding, alter the nature and extent of the sentence but cannot enhance it. Section 386(e) allows an appellate court to make any amendment or any consequential or incidental order that may be just and proper. Section 354(4) mandates that when the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of the Code.

Two things flow, firstly by virtue of Section 354(4), the Sessions Court must have given cogent reasons for awarding a particular sentence and secondly the wide ambit of powers of an appellate court also does not entitle it to without recording any findings on the merits, draft a separate class of punishment. Section 53 of IPC has a list of six punishments which a court can award for an offence under IPC – Death, Life Imprisonment, Rigorous Imprisonment, Simple Imprisonment, Forfeiture of Property and Fine. Section 344 mandates a twofold punishment – Imprisonment of upto 3 years and fine. Nonetheless, Section 344 does not provide for a fixed punishment which refers a reader further to Section 63 of IPC which states that where no sum is expressed to which a fine may extend, the amount of fine is unlimited but not excessive.

Testing on this parameter, an argument may be that the Sessions Court awarded a fine of Rs 500/- and the High Court may have enhanced it to Rs 50,000/- and waived the imprisonment in view of it. Such an argument will be wrong on two counts – Firstly, Section 344 IPC mandates an ‘Imprisonment + Fine’ punishment and not Imprisonment alone or fine alone or Imprisonment or Fine and secondly, the rider u/s 386(b)(iii) gets activated to prohibit an appellate court from enhancing the sentence. Under no provision of law can a receipt of any amount of money to any religious institution per se could the High Court had allowed the convict, escape the punishment provided by law.

Similarly, the Tamil Nadu court asking students (in most probability juveniles) to recite 100 Thirukkural treatise verses daily for 10 days as a condition for granting bail in an assault case is also legally erroneous. As a magistrate court seems to have taken the bail, the offence (not 352 IPC) must have been cognizable and non bailable. Assault as defined u/s 351 IPC is a ‘petty offence’ u/s 2(45) of the JJ Act, 2015. Section 88 of the JJA holds that where an act or omission constitutes an offence punishable under JJA and also under any other law, then, notwithstanding anything contained in any such law, the offender found guilty of such offence shall be liable for punishment under such law which provides for punishment which is greater in degree. Although u/s 437, the court accepting bail may impose in the interest of justice, conditions which it considers necessary but the extent of it revolves around preventing escape from the clutches of law. Asking juveniles in conflict with law to recite verses of Thirukkural may be from the angle of reformation but definitely not within the premises of law.

The two judicial orders are just samples of how whimsically do the courts have started functioning. In identical facts and similar circumstances, the same judge in his sphere of influence may adopt different routes, leave apart others. In a country like ours where settled laws are there, the scope of reformative justice, activist justice or revolutionary justice is minimal and should be exercised cautiously. While a judge may correctly exercise a discretionary power to ask juveniles to recite the beautifully written thirukurrals as it may help them realize the mistake as a condition for bail; accepting a deposit to a religious trust as an alternative punishment is perverse and must be discouraged.

Namit Saxena is a lawyer practicing in Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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