# Faqir Mohd. & Ors. (In Jail) v. The State of U.P

- **Citation:** (2021) 10 ILRA 540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-30
- **Case number:** Criminal Appeal No. 2465 of 1988
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faqir-mohd-ors-in-jail-v-the-state-of-u-p-46371
- **Pages:** 6

## Headnote

A.G.A.

Reformative
Theory
of
Punishment-
Proportionate Sentence- Keeping in view
the facts and circumstances of the case
and
also
keeping
in
view
criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive. This Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring them in the social stream.

The judicial trend is that Sentence must be
proportionate to the offence committed but at
the same time effort should be made to reform
the convict so that he is aligned with the social
mainstream.

Proportionate Sentence - The alleged
incident which took place in the year 1983
about 38 years ago and now accusedappellants are more than 60 and 70 years
of age respectively, it would not be proper
to sent the accused-appellants to jail at
the fag end of their life and the accused
were on bail since 27.10.1988 and the
accused persons have suffered the agony
of conviction for more than 38 years and
no
criminal
antecedents
have
been
shown-It would be appropriate and proper
that the accused be sentenced with the
period already undergone and the amount
of fine be enhanced instead of sending
them to jail.

The long time that has elapsed since the
occurrence, the age of the convicts and their
not misusing the period of bail would be some
of the mitigating circumstances entitling them to
be sentenced with the period undergone along
with enhancement of fine. (Para 17,18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

540 INDIAN LAW REPORTS ALLAHABAD SERIES
the
crime
and
other
attendant
circumstances. Applying these parameters,
this Court is of the considered view that
ends of justice would be adequately met if
the sentence of the appellant is reduced to
the period which he has already undergone.
I order accordingly.

18. For the reasons aforestated, the
appeal is allowed in part; conviction of the
appellant is modified, from one under
Section 308 I.P.C. to section 324 I.P.C. and
his sentence is consequently reduced from
five years rigorous imprisonment to the
period which he has already undergone. His
bail bonds are consequently discharged.
----------
(2021)10ILR A540
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2465 of 1988

Faqir Mohd. & Ors. ...Appellants(In Jail)
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Braham Singh, Sri Abhai Saxena

Counsel for the Respondent:
A.G.A.

Reformative
Theory
of
Punishment-
Proportionate Sentence- Keeping in view
the facts and circumstances of the case
and
also
keeping
in
view
criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive. This Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring them in the social stream.

The judicial trend is that Sentence must be
proportionate to the offence committed but at
the same time effort should be made to reform
the convict so that he is aligned with the social
mainstream.

Proportionate Sentence - The alleged
incident which took place in the year 1983
about 38 years ago and now accusedappellants are more than 60 and 70 years
of age respectively, it would not be proper
to sent the accused-appellants to jail at
the fag end of their life and the accused
were on bail since 27.10.1988 and the
accused persons have suffered the agony
of conviction for more than 38 years and
no
criminal
antecedents
have
been
shown-It would be appropriate and proper
that the accused be sentenced with the
period already undergone and the amount
of fine be enhanced instead of sending
them to jail.

The long time that has elapsed since the
occurrence, the age of the convicts and their
not misusing the period of bail would be some
of the mitigating circumstances entitling them to
be sentenced with the period undergone along
with enhancement of fine. (Para 17,18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

2. Sham Sunder Vs Puran, (1990) 4 SCC 731

3. St. of MP Vs Najab Khan, (2013) 9 SCC 509

4. Deo Narain Mandal Vs St. of UP (2004) 7 SCC
257

5. Shyam Narain Vs St. (NCT of delhi), (2013) 7
SCC 77

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323
10 All. Faqir Mohd. & Ors. Vs. The State of U.P.
541
7. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

8. Raj Bala Vs St. of Har., (2016) 1 SCC 463.

9. Kokaiyabai Yadav Vs St. of Chhattis.(2017) 13
SCC 449

10. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

(Delivered by Hon'ble Ajit Singh, J.)

1. As per order of this Court dated
28.9.2021, the appeal in respect of
appellant no. 1 Faqir Mohd son of Imam
Bux and appellant no. 4 Banney son of
Mola Bux is abated.

2. Sri Abhai Saxena, learned
Advocate is pressing this appeal on behalf
of surviving appellant no. 2 Abdul Majid
and appellant no. 3 Mushtaq.

3. This criminal appeal has been filed
against
the
judgement
and
order
dated14.10.1988 passed by Spl. Judge &
Addl. Session Judge, Moradabad in S.T.
No. 42 of 1985 (State vs. Faqir Mohammad
and others), under Sections 379, 411, 307
I.P.C. and Section 25 Arms Act, P.S. Bilari,
district-Moradabad, whereby learned Judge
convicted and sentenced the appellants to 3
years rigorous imprisonment each under
Section 411 I.P.C. and appellant no. 1 was
convicted to 5 years rigorous imprisonment
under Section 307 I.P.C. and appellant no.
2 was convicted to 2 years rigorous
imprisonment under Section 25 Arms Act.

4. It was also directed that all the
sentences shall run concurrently.

5. The prosecution story in brief is
that
on
the
intervening
night
of
20/21.9.1983 at about 3:00 A.M. the police
had arrested four accused persons from the
jungle of Village-Raipur, P.S. Bilari, while
they were committing theft of electric wire.
When S.H.O. Bhim Sen along with his
team raided at the jungle, after seeing the
police party, accused Faqir Mohammad
with the intention to kill the police
personal, fired at the police party with his
pistol. Thereafter, he was caught by the
police team and one country made pistol,
live cartridges were allegedly recovered
from his possession. The police team has
also recovered stolen electric wire from the
possession of the other accused persons.

6. At the very outset, learned counsel
for the appellant, on instructions, stated that
he does not propose to challenge the
impugned judgement and order on its
merits.
He,
however,
prayed
for
modification of the order of the sentence
for the period already undergone by the
appellant.

7. In furtherance to his submission,
the learned counsel for the accusedappellants submits that the incident had
taken place on 20/21.9.1983 and the
accused-appellants were convicted for three
years
Rigorous
Imprisonment
under
Section 411 I.P.C. Appellant no. 1 Faqir
Mohammad was also convicted for five
years R.I. under Section 307 I.P.C. and
three years R.I. Under section 25 Arms
Act. At present accused appellant no. 2
Abdul Majid is aged about 75 years and
accused-appellant no. 3 Mushtaq is aged
about 62 years. He next submits that it was
the first offence of the accused and after
conviction the accused had not indulged in
any other criminal activity. He next submits
that although the trial court has convicted
the accused-appellants on the basis of mere
conjuncture while the appellants are
absolutely innocent and have been falsely
implicated in this case. Further submission
542 INDIAN LAW REPORTS ALLAHABAD SERIES
is that accused-appellants are on bail since
27.10.1988 and prior to that they were in
jail for sometime and therefore, he has
requested that a lenient view may be
adopted and the sentence may be converted
either undergone or the sentence may be
substantially reduced. He also submits that
on the question of legality of sentence he is
not pressing this appeal and only pressing
on the quantum of sentence and he has
prayed for taking lenient view considering
the age of the accused and his age related
ailments.

8. Learned A.G.A. has vehemently
opposed the submission made by learned
counsel for the appellant. He has however,
submits that if slight reduction in sentence
is made, he has no objection.

9. I have perused the entire material
available on record and the evidence as
well as judgment of the trial court. The
learned counsel for the accused-appellants
does not want to press the appeal on its
merit and requests to take a lenient view of
the matter.

10. In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization.Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The
infliction of
harsh
and
savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

11. In Sham Sunder vs Puran, (1990)
4 SCC 731, where the high court reduced
the sentence for the offence under section
304 part I into undergone, the supreme
court opined that the sentence needs to be
enhanced being inadequate. It was held:

"The
court
in
fixing
the
punishment for any particular crime should
take into consideration the nature of
offence, the circumstances in which it was
committed, the degree of deliberation
shown by the offender. The measure of
punishment should be proportionate to the
gravity of offence."

12. In State of MP vs Najab Khan,
(2013) 9 SCC 509, the high court, while
upholding conviction, reduced the sentence
of 3 years by already undergone which was
only 15 days. The supreme court restored
the sentence awarded by the trial court.
Referring the judgments in Jameel vs State
of UP (2010) 12 SCC 532, Guru Basavraj
vs State of Karnatak, (2012) 8 SCC 734,
the court observed as follows:-

"In
operating
the
sentencing
system, law should adopt the corrective
machinery or the deterrence based on
10 All. Faqir Mohd. & Ors. Vs. The State of U.P.
543
factual matrix. 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. We also reiterate that
undue sympathy to impose inadequate
sentence would do more harm to the justice
dispensation system to undermine the
public confidence in the efficacy of law. It
is the duty of court to award proper
sentence having regard to the nature of
offence and the manner in which it was
executed or committed. The courts must
not only keep in view the rights of victim
of the crime but also the society at large
while
considering
the
imposition
of
appropriate punishment."

13. Earlier, "Proper Sentence" was
explained in Deo Narain Mandal Vs. State
of UP (2004) 7 SCC 257 by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the principle of
proportionately. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

14. In subsequent decisions, the
supreme court has laid emphasis on
proportional sentencing by affirming the
doctrine of proportionality. In Shyam
Narain vs State (NCT of delhi), (2013) 7
SCC 77, it was pointed out that sentencing
for any offence has a social goal. Sentence
is to be imposed with regard being had to
the nature of the offence and the manner in
which the offence has been committed. The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric. The purpose
of just punishment is that the society may
not suffer again by such crime. The
principle of proportionality between the
crime committed and the penalty imposed
are to be kept in mind. The impact on the
society as a whole has to be seen. Similar
view has been expressed in Sumer Singh
vs Surajbhan Singh, (2014) 7 SCC 323 ,
State of Punjab vs Bawa Singh, (2015) 3
SCC 441, and Raj Bala vs State of
Haryana, (2016) 1 SCC 463.

15. In Kokaiyabai Yadav vs State of
Chhattisgarh(2017) 13 SCC 449, it has
been observed that reforming criminals
who understand their wrongdoing, are able
to comprehend their acts,have grown and
nartured into citizens with a desire to live a
fruitful life in the outside world, have the
capacity of humanising the world.

16. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP (2010) 12 SCC 532, Guru
Basavraj vs State of Karnatak, (2012) 8
SCC 734, Sumer Singh vs Surajbhan
Singh, (2014) 7 SCC 323 , State of Punjab
vs Bawa Singh, (2015) 3 SCC 441, and
Raj Bala vs State of Haryana, (2016) 1
SCC 463 and has reiterated that, in
operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
544 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system."

17. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive. This Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

18. After considering the rival
submissions made by learned counsel for
the appellants, considering the facts and
circumstance of the case, considering that
the alleged incident which took place in the
year 1983 about 38 years ago and now
accused-appellants are more than 60 and 70
years of age respectively, at this stage, this
Court feels that it would not be proper to
sent the accused-appellants to jail at the fag
end of their life and the accused were on
bail since 27.10.1988 and the accused
persons have suffered the agony of
conviction for more than 38 years and no
criminal antecedents have been shown to
their credit after passing of so much long
period out of jail. It has been pointed out by
learned counsel for the accused-appellants
that the accused-appellants had remained in
jail for sometime during trial and after
conviction. Considering section 411 I.P.C.,
which says that whoever dishonestly
receives or retains any stolen property,
knowing or having reason to believe the
same to be stolen property, shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both.

19. Considering all these facts, it
would be appropriate and proper that the
accused be sentenced with the period
already undergone and the amount of fine
be enhanced.

20. Considering all the facts and
circumstances of the case, the accusedappellants are sentenced to the period
already undergone by them in jail during
trial and an amount of fine of Rs. 1,000/-
10 All. Smt. Sita Devi Vs. State of U.P. & Ors.
545
each be imposed instead of sending them to
jail.

21. Accused-appellant is directed to
deposit the fine of Rs. 1,000/- each before
learned lower court within two months
from the date of passing of the judgement
and in default of payment of fine accusedappellants shall further undergo 15 days
simple imprisonment.

22. Appeal is partly allowed in the
above terms.

23. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.

24. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the learned
counsel for the applicant alongwith a self
attested identity proof of the said persons
(preferably Aadhar Card) mentioning the
mobile number (s) to which the said
Aadhar Card is linked before the concerned
Court/Authority/Official.

25. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)10ILR A545
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J
THE HON'BLE GAUTAM CHOWDHARY, J.
Criminal Misc. Writ Petition No. 7446 of 2021

Smt. Sita Devi ...Petitioner
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sri Chandra Shekhar Singh, Sri Vinay Singh

Counsel for the Respondents:
A.G.A., Sri Brijendra Kumar, Sri V.K. Ojha

Petitioner eeceived a notice dated
27.03.2014 to show cause how she is
raising construction without obtaining
permission-Petitioner
submitted
componding bulding plan-instead of
assisting Petitioner and ascertaining
distance of plot from required areabuilding plan was rejected-after four
years
of
rejection
of
aforesaid
building plan, the Respondent no.3
through
building
inspector
lodged
impugned
FIR-Harrasment
of
a
common man by public authorities is
socially
abhorring
and
legally
impermissible.

Held, The officers of the respondent -
Development Authorities are not expected to
act as hounds smelling a rat everywhere and
put an undesirable restraint or hindrances in
granting permission or sanction of building
map filed by an individual, particularly in
matters of small houses, like the present one
and to harass further lodge first information
report to book the applicant/ petitioner to
initiate malafidely criminal proceedings. (para
21)

Stay of Petitioner's arrest. (E-9)

List of Cases cited:

1. N. Nagendra Rao & Co. Vs St. of A.P. (1994) 6
SCC 205

2. Common Cause, A Registered Society Vs
U.O.I. & ors., (1996)6 SCC 530 (Para 26)

3. Shivsagar Tiwari Vs U.O.I. & ors. (1996) 6
SCC 558