# Rajesh Kumar v. I.I.T., Kanpur and others

- **Citation:** (2004) 1 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-04
- **Case number:** Civil Misc. Writ Petition No. 38675 of 2003
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-i-i-t-kanpur-and-others-40339
- **Pages:** 10

## Headnote

Constitution
of
India,
Article
226Principles of Natural Justice-Violation
of-Incident of threatening inmates of
hostel of HBTI by petitioners-Students of
IIT Kanpur-Investigation made by SSAC-
which
recommended
termination
of
academic
programme
of
petitionersDirector of IIT-Kanpur being Chairman
of
Academic
Senate
of
Institute,
impugned
order
accepting
recommendation-In a matter in which
educational
carrier
of
six
students
involved, institution not follow basic
principles of natural justice-None of
supply charges-No evidence/statement
recorded in presence of accused, nor any
evidence produced before High Court to
show as to how they were involvedPetitioners amongst others called to
narrate incidents-No witness produced
before them, nor they were confronted
with any allegation of participation
incident-No opportunity given to defend
themselves-Findings
highly
vague,
uncertain
and
of
general
natureApologies
not
amounting
admissionAllegation,
do
not
call
for
harsh
punishment-Authorities failed to adopt
reformative approach i.e. deterrence
ideology- Impugned orders quashed.

Held-Paras 17 & 25
http://www.allahabadhighcourt.nic.in
1 All] Rajesh Kumar V. I.I.T., Kanpur and others 263
I have gone through the whole record. It
is clear that in a matter in which
educational career of six students was
involved, the institute did not follow
even the basic principles of natural
justice. None of the petitioners was
informed of the allegations or charges
against him. No evidence /statement of
any witness was recorded in presence of
the accused nor any evidence was
produced before this court to show as to
how the petitioners were involved and
what was the actual participation in the
incident. It appears that the petitioners
were called amongst others to narrate
the incidents. It was only investigation.
No witness was produced before them
nor they were confronted with any
allegation of participation in the incident
of 30/31 January, 2003. They were
never asked to explain their conduct. It
was but necessary that they should have
been
given
opportunity
to
defend
themselves. The findings as quoted
above show that they are highly vague,
uncertain and of very general in nature,
and unconnected with the aforesaid
incident of 30/31 January, 2003. The
respondents in their counter affidavit
have filed copies of 'apologies' of the
petitioners
in
which
they
assured
keeping good behaviour in future, so
that they may complete their studies.
These apologies have been tendered
after the punishment was awarded.
Naturally these apologies must have
been tendered in the hope that they will
be allowed to continue their studies and
do not amount to any admission of their
guilt in the background of this case. The
allegations made are not such which will
call for such a harsh punishment.

In the background of law laid down by
the Apex Court on penology aforesaid
the facts of this case show that not only
there has been gross violation of fair
play and principles of natural justice but
great injustice has been done to the
petitioners who have been awarded
inappropriate sentence/punishment and
the authorities have miserably failed to
adopt corrective approach i.e. deterrence
ideology.
Case law discussed:
(1999) 5 SCC1
AIR 1998 SC 3164
(2000) 7 SCC 529
2002(2) ESC 450
(1991) 2 SCC 716 ( Pr. 29)
AIR SCW 6429
AIR 1991 SC 1463

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Officer with the consent of the Rajkali
was cancelled by the Settlement Officer
Consolidation and was made three in
number without assigning any reason
whatsoever
and
without
any
notice/opportunity to the petitioners on
account of which petitioners apparently
suffered
serious
prejudice.
Deputy
Director of Consolidation has mentioned
the convenience of the opposite parties
but at the same time it is clear that he has
not considered the inconvenience and the
hardship which is being claimed by the
petitioners and thus this court is satisfied
that matter needs fresh examination by the
revisional court in the light of the rival
claim/pleadings. It is to made clear that
this court has not examined and expressed
any opinion in respect to correctness or
otherwise about the claim of either of the
parties and thus it is open for the
revisional court to take appropriate
decision in accordance with law, keeping
in mind the equity between the parties.

8. Accordingly, for the reasons
recorded above this writ petition succeeds
and is allowed. The impugned judgments
of the Deputy Director of Consolidation
dated 30.9.95 (Annexure-9 to the writ
petition) and that of the Settlement
Officer Consolidation dated 31.10.94 and
18.7.95 (Annexures 6 and 7 respectively
to the writ petition) are hereby quashed.
The matter is send back to the revisional
court for fresh decision, preferably
without a period of three months from the
date of receipt of certified copy of this
order by either of the parties, without
allowing any unwarranted adjournment to
them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 4.3.2004

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 38675 of 2003

Rajesh Kumar

...Petitioner
Versus
I.I.T., Kanpur and others ...Respondents

Counsel for the Petitioner:

Counsel for the Respondents:
Sri S.N. Verma
Sri Yashwant Varma

Constitution
of
India,
Article
226Principles of Natural Justice-Violation
of-Incident of threatening inmates of
hostel of HBTI by petitioners-Students of
IIT Kanpur-Investigation made by SSAC-
which
recommended
termination
of
academic
programme
of
petitionersDirector of IIT-Kanpur being Chairman
of
Academic
Senate
of
Institute,
impugned
order
accepting
recommendation-In a matter in which
educational
carrier
of
six
students
involved, institution not follow basic
principles of natural justice-None of
supply charges-No evidence/statement
recorded in presence of accused, nor any
evidence produced before High Court to
show as to how they were involvedPetitioners amongst others called to
narrate incidents-No witness produced
before them, nor they were confronted
with any allegation of participation
incident-No opportunity given to defend
themselves-Findings
highly
vague,
uncertain
and
of
general
natureApologies
not
amounting
admissionAllegation,
do
not
call
for
harsh
punishment-Authorities failed to adopt
reformative approach i.e. deterrence
ideology- Impugned orders quashed.

Held-Paras 17 & 25
http://www.allahabadhighcourt.nic.in
1 All] Rajesh Kumar V. I.I.T., Kanpur and others 263
I have gone through the whole record. It
is clear that in a matter in which
educational career of six students was
involved, the institute did not follow
even the basic principles of natural
justice. None of the petitioners was
informed of the allegations or charges
against him. No evidence /statement of
any witness was recorded in presence of
the accused nor any evidence was
produced before this court to show as to
how the petitioners were involved and
what was the actual participation in the
incident. It appears that the petitioners
were called amongst others to narrate
the incidents. It was only investigation.
No witness was produced before them
nor they were confronted with any
allegation of participation in the incident
of 30/31 January, 2003. They were
never asked to explain their conduct. It
was but necessary that they should have
been
given
opportunity
to
defend
themselves. The findings as quoted
above show that they are highly vague,
uncertain and of very general in nature,
and unconnected with the aforesaid
incident of 30/31 January, 2003. The
respondents in their counter affidavit
have filed copies of 'apologies' of the
petitioners
in
which
they
assured
keeping good behaviour in future, so
that they may complete their studies.
These apologies have been tendered
after the punishment was awarded.
Naturally these apologies must have
been tendered in the hope that they will
be allowed to continue their studies and
do not amount to any admission of their
guilt in the background of this case. The
allegations made are not such which will
call for such a harsh punishment.

In the background of law laid down by
the Apex Court on penology aforesaid
the facts of this case show that not only
there has been gross violation of fair
play and principles of natural justice but
great injustice has been done to the
petitioners who have been awarded
inappropriate sentence/punishment and
the authorities have miserably failed to
adopt corrective approach i.e. deterrence
ideology.
Case law discussed:
(1999) 5 SCC1
AIR 1998 SC 3164
(2000) 7 SCC 529
2002(2) ESC 450
(1991) 2 SCC 716 ( Pr. 29)
AIR SCW 6429
AIR 1991 SC 1463

(Delivered by Hon'ble Rakesh Tiwari,. J.)

1. Heard the counsel for the parties
and perused the record.

2. These two writ petitions have
been filed challenging the orders passed
by the Senate Student Affairs Committee,
hereinafter called as SSAC, and Chairman
Senate
of
the
Indian
Institute
of
Technology, Kanpur, hereinafter referred
as "Institute' launching the academic
programme of the petitioners by order
dated 4.2.2003. The aforesaid order was
confirmed by the Chairman Senate of the
Institute by order dated 7.8.2003.

3. The Institute imparts education in
various engineering course. Petitioners
are students of the said institute. The
course in the institute is of 10 semesters.
Petitioner Rajesh Kumar was admitted in
M.Sc. (Integrated) in the year 1989 with
Roll No. 98249. The petitioner cleared
IX (nine) semesters in first attempt and
was studying in final semester.

4. On 30/31 January, 2003 an
incident is said to have taken place in
which it is alleged that Rajesh Kumar
along with his some friends entered the
hostel of HBTI in two cars at about 1.30
am and threatened some inmates there. It
is further alleged that some shots were
fired in the air by the students of IIT
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264 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Kanpur which has tarnished the image of
the institute. An 'investigation' is said to
have
made
by
SSAC,
which
recommended termination of academic
programme of the petitioner, the Director
IIT-Kanpur who is also Chairman of
Academic Senate of the institute who
passed the impugned order dated 4.2.2003
accepting the recommendation.

5. It is said in the affidavit that
SSAC is a committee which comprises
not only of the Dean of Student Affairs
but has come students and warden of
students hall.

6. The counsel for the petitioners
submits that neither any charge sheet nor
any Articles of charges were served on
the petitioners at any point of time either
by SSAC or by the Chairman Senate of
the Institute before taking action. It is
alleged that the petitioners were called by
the SSAC to appear before it on 3rd
February, 2003. The Committee recorded
the statement of some students including
the petitioners, alleged to be connected
with this incident of 3.2.2003 at HBTI.
Statement of any person was not taken kin
their presence. All the persons were called
one by one. The petitioners were not
allowed to cross-examine nor were called
to give their defence. They were not given
any
opportunity
of
hearing.
The
committee
submitted
its
report
of
investigation recommending that the
petitioners be expelled from the institute.
The report of the committee is annexure
CA-2 to the counter affidavit.

7. A perusal of the report shows that
in this meeting 13 members were present.
According to the report the incident was
narrated by the Chairman in which several
students are said to have participated. The
Committee noted in the report that some
scuffle is said to have taken place
between the provocators and the inmates
of the HBTI hostel and on receipt of
information, the matter was reported to
the authorities to 'find out the facts of the
incident'. On the basis of queries from
some of the students and others it was
found that some inmates of C-Bot wing of
Hall-1 including the petitioner were
'involved in frequent consumption of
alcoholic liquor, socializing with female
friends and providing shelter to some
outsiders, and that some students namely
Nitin Sirohi of Hall-1 (of C-Bot) gave
shelter to one of his cousins and a friend,
who were allegedly studying at Kanpur.
Apart from that some student leader from
a local college having allegiance with a
particular political party was a frequent
vistor to Mr. Rajesh Kumar and Mr. Nitin
Sirohi.

8. Neither any notice or charge sheet
was given to the petitioners nor they were
given opportunity to explain allegations
made against them nor any witness was
examined in their presence or opportunity
to
defend
was
allowed.
Only
the
Chairman narrated the incident and the
facts gathered by him. He himself was not
a witness to the incident.

9. It is submitted by the counsel for
the petitioners that the narration of facts
heard from others is no evidence. The
chairman was not a witness of any
incident. Vague allegations have been
made and believed to be true and findings
have been recorded without applying
mind to facts alleged blindly in the name
of defamation of institute. No evidence of
any alleged offence was produced or
ingredient of any offence proved. No
body is said to have received any injury
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1 All] Rajesh Kumar V. I.I.T., Kanpur and others 265
nor damage to any property is alleged to
have been caused.

10. The finding of the committee
against Rajesh Kumar is as under :

"Mr. Rajesh Kumar (Roll No.
98292): He was having nexus with
undesirable elements and harboured the
main accused of the incident in his room.
He was also actively involved in the
incident, that occurred in HBTI Hostelk
which tarnished the image of the Institute.
For the offences committed by Mr. Rajesh
Kumar,
the
SSAC
recommends
immediate termination of Mr. Rajesh
Kumar from the academic programme of
the Institute."

The finding of the Committee against
Nitin Sirohi is as under :

"Mr. Nitin Sirohi ( Roll No. 98249):
He was actively involved in giving shelter
to his cousin namely Shri Ankur Bana and
one of his friends namely Sri Abhishek
Sirohi, both outsiders, in his own room
and regularly taking them to the mess for
dining. He was also found having nexus
with undesirable elements. He could have
avoided the whole incident had he
reported to the authority for preventive
measures
well
in
time.
For
the
commission and omission committed Mr.
Nitin Sirohi, the SSAC recommends
immediate termination of Mr. Nitin Sirohi
from the academic programme of the
Institute. "

11. The findings of the committee
also show that similar allegations were
found
proved
against
several
other
students namely, Mr. Phanki Karthik,
K.K. Singh, Mallik Subharao, A.K.
Somasi and Naval Malhotra.
12. The committee recommended
dropping of four students from current
academic semester and serving a written
warning to last students to deter from
such acts in future.

13. The counsel for the petitioners
contends that termination of the academic
programme is a serious matter which will
have permanent effect through-out life of
the petitioners and instead of an engineer,
the institute will produce a criminals. Out
of ten semester was left. The counsel for
the petitioner submits that such a type of
punishment is very harsh and can not be
given without any proof or affording an
opportunity of hearing and defence.

14. It is further submitted that one of
the charges is harbouring the main
accused. The word 'harbouring ' has legal
connotation. It means supplying shelter. If
a criminal entered the room of petitioners
how it amounts to harbouring. There is no
allegation that the petitioners 'supplied'
shelter. Similarly other allegations have
been made in vagest possible language
which are so general in nature that they
can not be controverted except by general
denial.

15. The respondents have also
referred to the case of Ashok Kumar
Rana Versus Principal Madan Mohan
Malviya Engineering College. A perusal
of this judgment shows that before taking
disciplinary action notice and opportunity
was given by the disciplinary authority of
the college to the petitioners of that writ
petition.

16. It was held in para 9 that the
extent and nature of opportunity which is
to be given in the mater of indiscipline of
a student in educational institution varies
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266 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
from case to case. The object of giving
education to student varies with various
disciplines in life and action is necessary
in case of discipline. It was further held
that the Court can not at all interfere with
the decisions of the authorities.

17. I have gone through the whole
record. It is clear that in a matter in which
educational career of six students was
involved, the institute did not follow even
the basic principles of natural justice.
None of the petitioners was informed of
the allegations or charges against him. No
evidence/statement of any witness was
recorded in presence of the accused nor
any evidence was produced before this
court to show as to how the petitioners
were involved and what was the actual
participation in the incident. It appears
that the petitioners were called amongst
others to narrate the incidents. It was only
investigation. No witness was produced
before them nor they were confronted
with any allegation of participation in the
incident of 30/31 January, 2003. They
were never asked to explain their conduct.
It was but necessary that they should have
been
given
opportunity
to
defend
themselves. The findings as quoted above
show that they are highly vague, uncertain
and of very general in nature, and
unconnected with the aforesaid incident
of 30/31 January, 2003. The respondents
in their counter affidavit have filed copies
of 'apologies' of the petitioners in which
they assured keeping good behaviour in
future, so that they may complete their
studies. These apologies have been
tendered
after
the
punishment
was
awarded. Naturally these apologies must
have been tendered in the hope that they
will be allowed to continue their studies
and do not amount to any admission of
their guilt in the background of this case.
The allegations made are not such which
will call for such a harsh punishment.

18. The law on penology is
undergoing change all over the world.
There are three types of punishments.

(i) The first is the traditional i.e.
punitive approach. It proceeds on the
basis that punishment should act as a
deterrent not only to the offender but
should set an example to others.

(ii) The second is theratuic approach
which aims to curbs criminal tendencies
which
are
product
of
deceased
psychology and

(iii) The third is reformative
approach giving chance to reform and
become a good citizen in the larger
interest
of
society
considering
the
background
and
circumstances
of
particular case.

19. In the first category notorious
offenders against the society are to be
visited with severe punishment. In the
second
category
rationalization
of
punishment aims at curing criminal
tendencies and the punishment is given to
satisfy the requirement of law, taking the
circumstances in which the offence was
committed and in the third category those
case fall in which there is chance of
reformation of the offender so that he can
be made a "good citizen" beneficial to the
society.

20. The Supreme Court in Jai
Kumar Vs. State of M.P. 1999 (5) SCC
page 1 held as under:
"Justice is supreme and justice ought
to be beneficial for the society so that the
society is placed in a better-off situation.
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1 All] Rajesh Kumar V. I.I.T., Kanpur and others 267
Law courts exist for the society and ought
to rise up to the occasion to do the needful
in the matter, and as such ought to act in a
manner so as to subserve the basic
requirement of the society. It is a
requirement of the society and the law
must respond to its need. The greatest
virtue of law is its flexibility and its
adaptability, it must change from time to
time so that it answers the cry of the
people, the need of the hour and the order
of the day. In the present-day society,
crime is now considered a social problem
and by reason therefore a tremendous
change even conceptually is being seen in
the legal horizon so far as the punishment
is concerned.

One school of thought on this score
propagates that the function of the law
court is that of a social reformer and as
such in its endeavour to act as such the
question of a deterring punishment would
not arise
since
the
society
would
otherwise be further prone to such violent
acts or activities by reason of the fact that
with the advancement of the age the
mental frame of boys of tender age also
go on changing and in the event of any
arrogance being developed or a sense of
revenge creeping into the society, the
society would perish to the detriment of
its people. The other school, however, has
expressly
recorded
and
rather
emphatically that unless the severest of
the severe punishments are inflicted on an
offender (obviously) depending upon the
nature of the crime) the society would
perish.

The law Courts as a matter of fact
have been rather consistent in the
approach that a reasonable proportion has
to be maintained between the seriousness
of crime and the punishment. While it is
true that a sentence disproportionately
severe ought not to be passed but that
does not even clothe the law courts with
an option to award the sentence which
would be manifestly inadequate having
due regard to the nature of the offence
since an inadequate sentence would fail to
produce a deterrent effect on the society
at large. Punishments are awarded not
because of the fact that it has to be an eye
for an eye or a tooth for a tooth, rather
having its due impact on the society while
undue harshness is not required but
inadequate punishment may lead to
sufferance of the community at large."

21. Again in AIR 1998 SC3164
State of Gujrat and another Versus
Hon'ble High Court of Gujrat, Hon'ble
Thomes, J. laid down as under:
"Reformation should hence be the
dominant objective of a punishment and
during incarceration every effort should
be made to recreate the good man out of
convicted prisoner. Thus, reformation and
rehabilitation of a prisoner are of great
public policy. They serve a public
purpose."

22. The counsel for the respondents
have laid down great emphasis in his
argument that the petitioners have failed
to show that any prejudice being caused
by not giving them notice, charges or
following of any other principles of
natural justice. He
insists
that no
opportunity was required to be given and
the enquiry from the petitioners by the
committee was sufficient, compliance of
principles of natural justice. He has relied
upon the case of Aligarh Muslim
University Vs. Mansoor Ali 2000 (7)
SCC 529 and the case of Dr. Satendra
Singh 2002 (2) ESC page 450 (All.D.B.).
There is no dispute about the legal
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268 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
position that unless prejudice is shown
mere breach of principles of natural
justice is not enough to invalidate an
order. In the instant case, the position is
quite different. The petitioners were not
even informed about the allegations
against them, nor were they informed
about what was their conduct for which
enquiry was being conducted. They were
not even were warned that enquiry
proceedings would be used against them.
By what evidence the Institute took the
guilt proved is not known. They were
never given any opportunity to defend
themselves. No reason has been given by
the committee except narration of the
incident by the Chairman. This is in fact
no enquiry or decision in the eyes of law.
Question of prejudice is writ large on the
face of record. The aforesaid two cases
are therefore, not applicable to the facts
and circumstances of this case.

23. The Court has undoubtedly the
power to intervene to correct any error in
complying
with
the
Rules
and
Regulations. The counsel also relied upon
the case of Apex Court in Maharasthra
State Board of Secondary and Higher
Secondary
Education
Versus
S.S.
Gandhi 1991 (2) SCC 716 para 29 of the
judgment of the Apex Court laid down
thus:
"29...... While it is open to the High
Court to interfere with the order of the
quasi-judicial authority, if its is not
supported by any evidence or if the order
is passed in contravention of the statutory
provisions of the law or in violation of the
principle of natural justice, the court has
no jurisdiction to quash the order merely
on the ground that the evidence available
on the record is insufficient or inadequate
or on the ground that different view could
possibly be taken on the evidence
available on record. The Examination
Committee
has
jurisdiction
to
take
decision in the matter of use of unfair
means not only on direct evidence but
also on probabilities and circumstantial
evidence. There is no scope for importing
the principles of criminal trial while
considering
the
probative
value
of
probabilities and circumstantial evidence.
The Examination Committee is not bound
by technical rules of evidence and
procedure as are applicable to courts. We
respectfully agree with the ratio."

The Supreme Court in a recent case
reported in AIR Supreme Court Weekly
6429 State of Karnataka Vs. Puttaraja
it has been held that:

"Undoubtedly, there is a crossculture 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
corner stone of the edifice or "order"
should meet the challenges confronting
the society. Friedman in his "Law in
Changing Society" stated that, "State of
criminal law continues to be-as it should
be - a decisive reflection of social
consciousness of society". Therefore in
operating the sentencing system, law
should adopt the corrective machinery or
the deterrence ideology 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
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1 All] Rajesh Kumar V. I.I.T., Kanpur and others 269
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, the indelible
impact on the victim and his family and
all other attending circumstances are
relevant facts which would enter into the
area of consideration.

Undue
sympathy
to
impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law
and society could not lend endure under
such serious threats. It is, therefore, the
duty of every Court to award proper
sentence having regard to the nature of
the offence and the manner in which it
was executed or committed etc.

24. This position was illuminatingly
stated by this Court in Sevaka Perumal
etc. vs. State of Tamil Nadu (AIR 1991
SC 1463) in which it has been held that:

"The criminal law adheres in general
to the principal of proportionality in
prescribing liability according to the
culpability of each kind of criminal
conduct.
It
ordinarily
allows
some
significant discretion to the Judge in
arriving at a sentence in each case,
presumably to permit sentences that
reflect more subtle considerations of
culpability that are raised by the special
facts of each case. Judges in essence
affirm that punishment ought always to fit
the crime yet in practice sentences are
determined
largely
by
the
other
considerations. Sometimes it is the
correctional needs of the perpetrator that
are offered to justify a sentence.

Proportion
between
crime
and
punishment is a goal respected in
principal, and in spite of errant notions, it
remains a strong influence in the
determination of sentences. The practice
of punishing all serious crimes with equal
severity in now unknown in civilized
societies, but such a radical departure
from the principle of proportionality has
disappeared from the law only in recent
times on account of misplaced sympathies
to the perpetrator of crime leaving the
victim or his family into oblivion. Even
now for a single grave infraction drastic
sentences are imposed. Anything less than
a penalty of greatest severity for any
serious crime is though then to be a
measure of toleration that is unwarranted
and unwise. But in fact, quite apart from
those
considerations
that
make
punishment unjustifiable when it is out of
proportion to the gravity of the crime,
uniformly disproportionate punishment
has some very undesirable practical
consequences.

After giving due consideration to the
facts and circumstances of each case, for
deciding just and appropriate sentence to
be
awarded
for
an
offence,
the
aggravating and mitigating factors and
circumstances in which a crime has been
committed are to be delicately balanced
on
the
basis
of
really
relevant
circumstances in a dispassionate manner
by the Court. Such act of balancing is
indeed a difficult task. It has been very
aptly indicated in Dannis Councle MCG
Dautha v. State of Callifornia, 402 US
183:28 LD2d 711, that no formula of a
foolproof nature is possible that would
provide
a
reasonable
criterion
in
determining
a
just
and
appropriate
punishment in the infinite variety of
circumstances that may affect the gravity
of the crime. In the absence of any
foolproof formula which may provide any
http://www.allahabadhighcourt.nic.in
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
basis for reasonable criteria to correctly
assess various circumstances germane to
the consideration of gravity of crime, the
discretionary judgment in the facts of
each case, is the only way in which such
judgment may be equitable distinguished.

The object should be to protect the
society and to deter the criminal in
achieving the avowed object of law by
imposing appropriate sentence. It is
expected that the Court would operate the
sentencing system so as to impose such
sentence which reflects the conscience of
the society and the sentencing process has
to be stern where it should be. Imposition
of sentence without considering its effect
on the social order in many cases may be
in reality a futile exercise. The social
impact of the crime, e.g. where it relates
to offences against women like the case at
hand,
dacoity,
kidnapping,
misappropriation
of
public
money,
treason and other offences involving
moral turpitude or moral delinquency
which have great impact and serious
repercussions on social order, and public
interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal
attitude by imposing meager sentences or
taking too sympathetic view merely on
account of lapse to time or considerations
personal to the accused only in respect of
such offence will be resultwise counter
productive in the long run and against
societal interest which needs to be cared
for and strengthened by the required
string of deterrence inbuilt in the
sentencing system."

25. In the background of law laid
down by the Apex Court on penology
aforesaid the facts of this case show that
not only there has been gross violation of
fair play and principles of natural justice
but great injustice has been done to the
petitioners who have been awarded
inappropriate sentence/punishment and
the authorities have miserably failed to
adopt corrective approach i.e. deterrence
ideology.

26. The respondents have filed
affidavit of Dean of Student Affairs and
Ex-officio Chairman SSAC. In para 3 of
this affidavit it is stated that "before this
incident
"General
ambience
of
indiscipline of inmates of Hall-1 (C-Bot
Wing)" was very alarming. It is further
stated in the same paragraph that the
deponent was well aware of the wrong
doings of Mr. Nitin Sirohi and Mr. Rajesh
Kumar and also the impact it was having
on the psyche of others students and in
particular, inmates of Hall-1, inasmuch as
harbouring unsocial elements in the
hostel. It touched frightening peak when
the students come to know about the
involvement of Mr. Rajesh Kumar and
Mr. Abhishek Sirohi (brother of Mr. Nitin
Sirohi), alongwith other outsider and
unsocial elements in the incident of
30/31.1.2003 that took place in the hostel
of HBTI. It is also stated in para 4 that the
Dean was well aware of the wrong doings
of the petitioners and it is also the fact
that "he did not take any action". This
shows that the authorities/respondents
were and are themselves responsible for
encouraging indiscipline in the Institute.
They did not perform their duties as
teacher, guide and Dean of Student
welfare.

27. Having given anxious thought I
feel that punishment awarded to the
petitioners is highly disproportionate and
drastic to the allegations made against
him and reformative approach is against
in this case.
http://www.allahabadhighcourt.nic.in
1 All] Prem Singh V. D.M./District Dy. Director of Consolidation and others 271
28. Thus, it is clear that the
petitioners have not only been treated
unfairly
but
they
have
also
been
discriminated as 2 students have been
awarded only warning for same or similar
incident. These students have already lost
more than 1 year of their life and career
which they would have completed by
now. This is sufficient punishment. These
students have already given undertaking
not to repeat any such act in future. They
have no criminal history and must have
been good students to find admission in
I.I.T. Kanpur. The Court is duty bound to
see that the punishment awarded is
appropriate to the offence and where there
are chances of reformation, particularly,
in cases of students, the Court must give
chance to such students to reform their
life and to become a good citizen of the
country. Therefore, keeping in view the
rights of the victims i.e. students and the
fact that they have lost one year of their
career
appears
to
be
sufficient
punishment. They would be passing out
immediately after examination of last
semester. The punishment of termination
of their academic session is too harsh and
is highly disproportionate. I am, therefore,
of the opinion that in the facts and
circumstances of this case a chance to
reform should be given to the petitioners
and they be permitted to complete their
career in the Institute.

29. For these reasons the writ
petition is allowed. The respondents are
directed to allow the petitioners to
complete their studies. The impugned
orders dated 7.3.2003, 7.8.2003 and
letter/order dated 31.3.2003 are quashed.

No costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.3.2004

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 8826 of 2004

Prem Singh

 ...Petitioner
Versus
District
Magistrate/District
Deputy
Director of Consolidation and others
 ...Respondents

Counsel for the Petitioner:
Smt. Anita Tripathi

Counsel for the Respondents:
S.C.

U.P. Consolidation of Holdings Act, 1953
and 5(2) Secs. 19-A-U.P. Zamindari
Abolition and Land Reforms Act, 1950-
Ss. 195 and 197- Scope- Allotment
proceedings under Ss. 195 and 197 of ZA
and LR Act are not affected by S. 5(2) of
U.P. Consolidation of Holdings Act- S. 19A (2) only an enabling provision which
enables
ACO,
while
preparing
Consolidation
Scheme,
to
make
allotment of a Gaon Sabha land after
determining
its
valuation-S.
19-A(2)
does not prohibit allotment proceedings
under Ss. 195 and 197 of U.P. Z.A. & L.R.
Act.

Held: Para 5 & 6

The allotment proceedings under Section
195 and 197 of U.P. Zamindari Abolition
& Land Reforms Act do not come under
any of the proceedings as contemplated
by Section 5 (2). The proceedings for
allotment are neither proceedings for
correction of records nor proceedings for
declaration of rights or interest or for
declaration or adjudication of any other
right in regard to which the proceedings
can and ought to have been taken under
the U.P. Consolidation of Holdings Act.
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