# Vijai Prakash (In Jail) v. State of U.P

- **Citation:** (2021) 11 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-29
- **Case number:** Criminal Appeal No. 22 of 1989
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-prakash-in-jail-v-state-of-u-p-46590
- **Pages:** 5

## Headnote

(A) Criminal Law - The Essential commodities
Act,1955 - section 3/7 - Appeal against
conviction - Rehabilitary & Reformative aspects
in sentencing - doctrine of proportionality -
Discretion of Court in awarding sentence
cannot be exercised arbitrarily or whimsically -
in operating the sentencing system, law should
adopt corrective machinery or
deterrence
based on factual matrix - duty of every court to
award proper sentence having regard to nature
of offence and manner of its commission -
striking
a
balance
between
reform
and
punishment - criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective.(Para - 13,15)

Accused was a licence holder of fertilizer -
inspection of shop by Tehsildar - no cash memo &
sale register maintained - nor was shown to S.D.M
- physical verification - shortage of 8 bags of
fertilizer detected - accused-appellant charged
under 3/7 E.C. Act - conviction of appellant -
appellant is old and aged persons - does not
propose to challenge the impugned judgement and
order on its merits - modification of order of
sentence for the period already undergone. (Para -
3,5)

HELD:- Conviction upheld. Appeal dismissed. It
would not be proper to send the accused-appellant to
jail at the fag end of his life and the accused was on
bail since 3.1.1989 and the accused person has
suffered the agony of conviction for more than three
decade and no criminal antecedents have been shown
to his credit after passing of so much long period out
of jail. Accused be sentenced with the period already
undergone and the amount of fine be enhanced.
(Para - 17,18)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

500 INDIAN LAW REPORTS ALLAHABAD SERIES
whereupon the Magistrate concerned may take
cognizance after following due procedure and
issue process/summons.

52. The observations made hereinabove
while deciding the legal questions may not be
treated as findings on merits and the trial court
would be expected to independently apply its
mind to the factual allegations while proceeding
with the trial.

53. The procedure in respect of initiating
proceedings and taking cognizance in respect of
offences under the MMDR Act and the Penal
Code having been discussed above, it would be
open to the appropriate authority of the State
Government to issue directions delineating
suitable guidelines in respect of initiation of
proceedings regarding matters which would
constitute offences under the MMDR Act as also
the Penal Code.

54. The application under Section 482
CrPC stands partly allowed to the extent
indicated above.
----------
(2021)11ILR A500
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 22 of 1989

Vijai Prakash ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri A.K. Bhatt, Sri Kumar Ashutosh Srivastava,
Sri Nagendra Bahadur Singh, Sri N.P. Singh Sri
Anurag Pandey

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - The Essential commodities
Act,1955 - section 3/7 - Appeal against
conviction - Rehabilitary & Reformative aspects
in sentencing - doctrine of proportionality -
Discretion of Court in awarding sentence
cannot be exercised arbitrarily or whimsically -
in operating the sentencing system, law should
adopt corrective machinery or
deterrence
based on factual matrix - duty of every court to
award proper sentence having regard to nature
of offence and manner of its commission -
striking
a
balance
between
reform
and
punishment - criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective.(Para - 13,15)

Accused was a licence holder of fertilizer -
inspection of shop by Tehsildar - no cash memo &
sale register maintained - nor was shown to S.D.M
- physical verification - shortage of 8 bags of
fertilizer detected - accused-appellant charged
under 3/7 E.C. Act - conviction of appellant -
appellant is old and aged persons - does not
propose to challenge the impugned judgement and
order on its merits - modification of order of
sentence for the period already undergone. (Para -
3,5)

HELD:- Conviction upheld. Appeal dismissed. It
would not be proper to send the accused-appellant to
jail at the fag end of his life and the accused was on
bail since 3.1.1989 and the accused person has
suffered the agony of conviction for more than three
decade and no criminal antecedents have been shown
to his credit after passing of so much long period out
of jail. Accused be sentenced with the period already
undergone and the amount of fine be enhanced.
(Para - 17,18)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

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

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

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

4. Jameel Vs St. of U.P., (2010) 12 SCC 532
11 All. Vijai Prakash Vs. State of U.P.
501
5. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

6. Deo Narain Mandal Vs St. of U.P., (2004) 7 SCC
257

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

8. Sumer Singh Vs Surajbhan Singh, (2014) 7 SCC
323

9. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

10. Raj Bala Vs St. of Haryana, (2016) 1 SCC 463

11. Kokaiyabai Yadav Vs St. of Chhattisgarh, (2017)
13 SCC 449

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

13. Jameel Vs St. Of U.P., (2010) 12 SCC 532

14. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

15. Sumer Singh Vs Surajbhan Singh, (2014) 7 SCC
323

16. St. of Pun. Vs Bawa Singh, (2015) 3 SCC 441

17. Raj Bala Vs St. of Hary., (2016) 1 SCC 463

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

1. Heard Sri Nagendra Bahadur Singh
learned counsel appearing on behalf of the
appellant, Rameshwar Prasad Shukla, learned
A.G.A. appearing on behalf of the State and
perused the record.

2. This criminal appeal has been preferred
against the judgment and order dated 21.12.1988
passed by Special Judge, Allahabad in Criminal
Case No. 5 of 1985 whereby the appellant has
been convicted and sentenced to undergo
rigorous imprisonment under section 3/7 E.C.
Act for a period of one year and to pay a fine of
Rs.500/-. In case of default of the payment of
fine, he shall further undergo six months
rigorous imprisonment. Both the sentences shall
run concurrently.

3. The prosecution case in brief is that Sri
R.S. Saxena was posted as S.D.M. Sirathu. It
was mentioned that the accused Vijay Prakash
was a licence holder of fertilizer and was doing
his business at Saini. On 5.10.1983, Sri Saxena
alongwith Tehsildar Sri T.R. Ram inspected the
shop of the accused and he found that there was
no sale register maintained by the accused nor
was shown to the S.D.M; there was no
cashmemo prepared by the accused-appellant
nor was shown to the S.D.M.; there was entry of
48 bags of Urea upto 21st September, 1983.
Thereafter there was no entry at all; on physical
verification a shortage of 8 bags of fertilizer was
detected and there was no entry of 12 bags of
fertilizer in the stock register which were found
on the shop. The accused-appellant was charged
under 3/7 E.C. Act and after taking prosecution
evidence, the trial court convicted the appellant
with sentence of one year rigorous imprisonment
and fine of Rs.500/-.

4. The trial court recorded statement of the
witnesses and after hearing the argument of both
the sides, convicted the appellant as aforesaid.

5. 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. Learned counsel for the appellant has
specifically stated that incident had happened in
the year 1983 and at present the accusedappellant is aged about 68 years old and has
submitted that he does not want to press this
appeal on merit but requests the Court that
considering the age of the accused and
considering that he is suffering from age related
502 INDIAN LAW REPORTS ALLAHABAD SERIES
ailments, conviction of the accused be modified
suitably and he has further submitted that the
accused person had suffered mental and physical
agony of incarnation and he has suffered mental
agony of criminal trial and after conviction since
year 1988.

8. Learned A.G.A. has vehemently
opposed the argument advanced by the 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-appellant 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 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
11 All. Vijai Prakash Vs. State of U.P.
503
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.

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.

14. 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.

15. 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 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
504 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16.

Considering
the
facts
and
circumstances of the case and the substantive
period already undergone by the appellant in this
case and the fact that the appellant is old and
aged persons; and by so far he has realized the
mistake committed by him and is remorseful to
his conduct and feels it necessary to serve with
his polite and cooperative behaviour to the
society which he belongs to and now he wants to
transform himself into a law abiding citizen, I
am of the considered opinion that he should be
given a chance to reform himself and extend his
better contribution to the society to which he
belongs to.

17. After considering the rival submissions
made by learned counsel for the appellant,
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 appellant is more than 68 years of age,
at this stage, this Court feels that it would not be
proper to send the accused-appellant to jail at the
fag end of his life and the accused was on bail
since 3.1.1989 and the accused person has
suffered the agony of conviction for more than
three decade and no criminal antecedents have
been shown to his credit after passing of so
much long period out of jail, at this stage it does
not appear appropriate to send the accusedappellant to jail. It has been pointed out by
learned counsel for the accused-appellant that
the accused-appellant had remained in jail for
sometime during trial. 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.

18.

Consequently,
taking
into
consideration the period already undergone in
prison by the appellant in this case as well as
considering that he has suffered physical and
mental agony of trial and after conviction for a
long period of about 35 years, the conviction is
upheld. Appeal is dismissed and accused is
convicted which the period already undergone
by him in prison during trial and after conviction
and with a fine of Rs.2000/-.

19. Accused-appellant is directed to
deposit the fine of Rs.2,000/- before learned trial
court within a period of three months from the
date of production of a copy of the judgement, in
default of payment of fine as directed above, he
shall undergo simple imprisonment for a period
of fifteen days.

20. Appeal is partly allowed in the above
terms and surety bonds of the sureties are
discharged.

21. Office is directed to transmit the lower
court record along with a copy of this judgment
to the learned court below for information and
necessary compliance as warranted
----------
(2021)11ILR A504
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 259 of 1983

Ram Bilas ...Appellant ( In Jail)
Versus
The State ...Respondent