# LINGALA VIJA Y AKUMAR & ORS v. PUBLIC PROSECUTOR, ANDHRA PRADESH August 2,. 1978

- **Citation:** [1979] 1 S.C.R. 2
- **Court:** Supreme Court of India
- **Decided:** 1979
- **Case number:** Criminal Appeal No. 257 of 1978
- **Bench:** V. R. Krishna Iyer, D. A. Desai, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lingala-vija-y-akumar-ors-v-public-prosecutor-andhra-pradesh-august-2-1978-7581
- **Pages:** 9

## Headnote

Scnt::nce-E·nhancement of the sentence by the High Court under Secaon
377 of the Cri!ninal Procedure Code, 1973 explained.
Sentence-Correctional sentence, p/t'(1
for-P.~ison justice
vis-a-\·is
social
justice and right of the prisoners to hun1ane treat111ent under Art. 19 of the
Constitution.
The appellants were duly prosecuted, ';onvictcd and av,'arded sentences of
2:! years rigorous imprisonment each for the ofience of having robbed the State
Bank by committing dacoity. Appeals by the accused and the State ended in
the enhancement of the sentence to seven yerirs R.I. each.
Hence the appeal
by special leave.
Dismissing the appeal, but mcxlifying the sentence
as
a\vardcd
by
the
D
Sessions. the Court
E
HELD : The High Court has superseded the
trial
Court's
discretionary
impost for which it has power, proYided error in principle or perverse exercise
or like faux pas is pointed out and those reasons are stated. Appellate power
to prune or protract is not unbridled when discretion once exercised is
to
be
upset.
And the higher Court can be draconic, if grounds exist, but it cannot
be laconic.
The specific reasons assigned by the
Sessions
Court must be
countered by clear ratioci11ation and then the Supreme Court ordinarily keeps
out.
[6 A-B, E]
In the instant case, the four words v.ihich did justice to the trial court were
"the ends of justice" V.iithout specifying what they V.'ere
and
there was
no
speaking order in the High Court's substantial enhancement. None
of
the
reasons given by the Sessions Court have been expressly dissentt.:d from by the
F
High Court or can be called impertinent.
[6E, 7C]
G
H
Observations :
(i) ."Cash awards for bravery" to \Vitncsses \vhen a criminal case is pending may be euphemistic officialcse but may be construed by the accused as purcha'\e price tor testimonial fidelity.
The overzealous antics and objectionable
tactics are far from fair for a political Ciovernment which par·s
homage
to
judicial justice and betrays a mood of executive interference with the course of
justice where political vendetta shows up.
No one is above contempt pov1/er in
our constitutional order. {5A-B]
(ii) Prison justice is part of social justice.
The "'Tit of the rule of lav.', if
it runs within the jail system shall not permit
inhumanity.
On appropriate
motion made to this Court showing violation of the residual rights of a prisoner
by unnecessary cruelty and unreasonable impositions and denial and
depr~va
tio:ns within the prison-setting, the judicial process \vill call to order the pnson
aulhorities and make them respect the fundamental rights of the
appellants
Prisoners are not non-persons. (88-C, 10-81
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VIJAYAKUMAR r: PUBLIC PROSECUTOR (Krishna~Ixer~J-),
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(iii) The CoUrt has responsibility to see that pllnishment serves s1Jt..ial ~efence
which is the validation .of. deprivation of citizen•s_liberty. _Correctional treatment with a rehabilitative orientatio~ is an imperative of modem penology
which_ has abandoned jus talionis. The ihefapeutic basis of-_ inC3.i-ceratory lifestyle is not wiknown to Gandhian India because the Fither of the Nation '
regarded a criminal as a'. morally aberrant patient. A hospital setting and
a
~humanitarian
__ ethos.· must pervade -our prisons if the retributive theory, which
is but vengearice in disguise, is to disappear and deterrence a; a punitive objective gcin success not through the _hardening practice of inhlimanity inflicted on
prisoners but by_ reformation and healing_ whereby the creative potential of the
prisoner.- is unfolded. Tbt!se Yalu~ haVe their_ roots in Art. 19 of, the Corutitution ·which -sanctions deprivation of freedoms provided they render a reason-
, able 5ervi.,;e to social defence, public order :ind' security of the State.
[7D-G]
[The- Court dire(;ted that the ·appellants being '"children" within the meaning
of the "Saurashtra Children Act", though not under the Andhra Children Act,
te separat.:d from adul: prisoners. More p:lrticularly the appell

## Text

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LINGALA VIJA Y AKUMAR & ORS.
v.
PUBLIC PROSECUTOR, ANDHRA PRADESH
August 2,. 1978
[V. R. KRISHNA IYER, D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.J
Scnt::nce-E·nhancement of the sentence by the High Court under Secaon
377 of the Cri!ninal Procedure Code, 1973 explained.
Sentence-Correctional sentence, p/t'(1
for-P.~ison justice
vis-a-\·is
social
justice and right of the prisoners to hun1ane treat111ent under Art. 19 of the
Constitution.
The appellants were duly prosecuted, ';onvictcd and av,'arded sentences of
2:! years rigorous imprisonment each for the ofience of having robbed the State
Bank by committing dacoity. Appeals by the accused and the State ended in
the enhancement of the sentence to seven yerirs R.I. each.
Hence the appeal
by special leave.
Dismissing the appeal, but mcxlifying the sentence
as
a\vardcd
by
the
D
Sessions. the Court
E
HELD : The High Court has superseded the
trial
Court's
discretionary
impost for which it has power, proYided error in principle or perverse exercise
or like faux pas is pointed out and those reasons are stated. Appellate power
to prune or protract is not unbridled when discretion once exercised is
to
be
upset.
And the higher Court can be draconic, if grounds exist, but it cannot
be laconic.
The specific reasons assigned by the
Sessions
Court must be
countered by clear ratioci11ation and then the Supreme Court ordinarily keeps
out.
[6 A-B, E]
In the instant case, the four words v.ihich did justice to the trial court were
"the ends of justice" V.iithout specifying what they V.'ere
and
there was
no
speaking order in the High Court's substantial enhancement. None
of
the
reasons given by the Sessions Court have been expressly dissentt.:d from by the
F
High Court or can be called impertinent.
[6E, 7C]
G
H
Observations :
(i) ."Cash awards for bravery" to \Vitncsses \vhen a criminal case is pending may be euphemistic officialcse but may be construed by the accused as purcha'\e price tor testimonial fidelity.
The overzealous antics and objectionable
tactics are far from fair for a political Ciovernment which par·s
homage
to
judicial justice and betrays a mood of executive interference with the course of
justice where political vendetta shows up.
No one is above contempt pov1/er in
our constitutional order. {5A-B]
(ii) Prison justice is part of social justice.
The "'Tit of the rule of lav.', if
it runs within the jail system shall not permit
inhumanity.
On appropriate
motion made to this Court showing violation of the residual rights of a prisoner
by unnecessary cruelty and unreasonable impositions and denial and
depr~va
tio:ns within the prison-setting, the judicial process \vill call to order the pnson
aulhorities and make them respect the fundamental rights of the
appellants
Prisoners are not non-persons. (88-C, 10-81
•
'\
•
VIJAYAKUMAR r: PUBLIC PROSECUTOR (Krishna~Ixer~J-),
J
'
-
.
"
,~
'
.
(iii) The CoUrt has responsibility to see that pllnishment serves s1Jt..ial ~efence
which is the validation .of. deprivation of citizen•s_liberty. _Correctional treatment with a rehabilitative orientatio~ is an imperative of modem penology
which_ has abandoned jus talionis. The ihefapeutic basis of-_ inC3.i-ceratory lifestyle is not wiknown to Gandhian India because the Fither of the Nation '
regarded a criminal as a'. morally aberrant patient. A hospital setting and
a
~humanitarian
__ ethos.· must pervade -our prisons if the retributive theory, which
is but vengearice in disguise, is to disappear and deterrence a; a punitive objective gcin success not through the _hardening practice of inhlimanity inflicted on
prisoners but by_ reformation and healing_ whereby the creative potential of the
prisoner.- is unfolded. Tbt!se Yalu~ haVe their_ roots in Art. 19 of, the Corutitution ·which -sanctions deprivation of freedoms provided they render a reason-
, able 5ervi.,;e to social defence, public order :ind' security of the State.
[7D-G]
[The- Court dire(;ted that the ·appellants being '"children" within the meaning
of the "Saurashtra Children Act", though not under the Andhra Children Act,
te separat.:d from adul: prisoners. More p:lrticularly the appellants should
be- allowed opportunities for improving themselves and D.oullihing-their minds
with wholesome reading so that on retur:n to society they tum a new leaf.]
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 257 of
1978.
..
.
.
Appeal by Special Leave from the Judgment and Order dated
18-10-76 of the And!ira Pradesh High Court in Criininal Appeal No.
221 /75 and Criminal Appeal No. 749 of 1975.
R. K. Garg and V. !. Francis for the Appellant
P. P. Rao. and G. N. Rao for the Respondent.
The Order of the Coun was delivered by
KRISHNA IYER, J.-Seven dangerously ideological teenagers, poll-
. tically impatient with the deepeiring injustice of the economic order and
ebulliently infantile in their terrorist tactics, were sentenced to seven
years in prison for the offence· of having robbed the State Bank of
a few thousand rupees with non-violent use al; crude
pistols
and
country bombs which. in the language of the Penal Code, amount~
to dacoity-a grave propeny crime. They were duly prosecuted, convicted and awarded 2t years rigorous imprisonment. Appeals by the
accused and the State ended in the enhancement of the sentence to
seven years R.I. each.
•
We have, on a perusal of the judgment, under appeal and after
hearing Sri Garg for the appellants, declined to demolish the conviction
although the scenerio of events is judicially disquieting.
Why? Because in our adversary. system and 'umpire' tradition of the judicial
process the weaker accused, sometimes anathematized as naxalite or
by other unpopular appellation, is theoretically equal before the law
but in real-life terms, thanks to practical handicaps, the scales
of
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SUPREME COURT REPORTS
(1979] 1 S.C.R.
justice (not the judges) tend to incline against 'him.
Law is what
law does, not what law speaks.
The Judge, tradition-bound plays an
umpire's passive role in an adversary system.
He holds on the basis
of proof proffered by the prosecution, tested by the conventional process of cross-examination and the standard yardsticks of credibility.
He has no activist alternative of further probe, for he has no independent assistance in that behalf.
The technical power to summon
court witness or put questions hardly helps in practice.
And when
the defence is financially, socially, politically or otherwise too weak
to explore the investigatory veracity or explode the testimonial value
of the prosecution and its witnesses or to undertake its own garnering
of effective materials to establish innocence, the equal scales of justice
operate queerly.
Even so, w" cannot travel beyond the record, and
concurrent findings of fact acquire a judicial sanctity which stands in
the way of our reassessment of evidence at the tertiary stage.
For
this reason we confine ourselves to the conscientious issue of correctional sentence-that Cinderalla of Indian Criminology despite Section
235 (2), Cr. P. Code.
Never-the-less, we must express our astonishment at the
hasty
impropriety of making cash awards to prosecution witnesses when the
case was sub-judice, at a public ceremony where the Chief Minister
himself presided. The factual foundation is furnished by the following
E
paragraph in the judgment of the trial court :
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"Before parting with the case I wish to observe that the
government by giving awards to some of the witnesses in
the case at a public meeting held at Naidugudem presided
over by the Chief Minister while the matter was still sub-judice
for their having courageously chased the accused and caught
them soon after the offence created an embarrassing situation for the court making it difficult to arrive at the truth
without a prejudiced mind.
But all the same I scrupulously
kept this aspect of the case from my mind and arrived at the
decision independently on merits.
The government ought
not to have prejudged the case and awarded any cash prizes
to any of the witnesses.
What an awkward figure the government would cut if due to some compelling legal requirements
the court was obliged to come; to a conclusion that the witnesses to whom it had given awards in advance were all got
up witnesses unworthy of credit ? I think it will not be too
much if I hope that things of this type will not be repeated
by the government in future in its own interests and in the
interests of administration of justice."
_·.;....
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VIJAYAKUMAR v. PUBLIC PROSECUTOR (Krishna Iyer, !.)
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Emphatically we agree.
'Cash awards for bravery' to witnesses when
a criminal case is pending may be euphemistic officialese but may be
construed by the accused as purchase price for testimonial fidelity.
The overzealous antics and objectionable tactics are far from fair
for a political government which pays homage to judicial justice and
betrays a mood of executive interference with the course of justice
B
where political vendetta shows up.
We enter this caveat to arrest
repetitio!O and to alert about consequences.
No one is above contempt power in our constitutional order.
Now we reach the crucial question of the appropriate punishment
The conspectus of facts relevant to thls br;mch may be recapitulated.
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(i) all the seven sentencees are aronnd seventeen; (ii) all of them
are self-less ideologues with revolutionary. ardour impressed militantly
with the Preamble declaration of the Constitution 'to secure economic
justice'; (iii) none of them is a dacoit in the highway robbery sense
but everyone is in the criminal connotation-more dangerous for the
proprietariat because they violently and openly challenge the basis of
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those capitalist values which find expression in the 118-year-old Penal
Code.
(It is a matter for Parliamentary action whether the Code
should shift its penal emphasis to the social justice concerns of Part
III and IV more than Lord Macaulay meant.)
The primary considerations which persuaded the trial Judge to
li:
impose a lenient term of 30 months
in jail have been succinctly
stated
" ( i) All the accused persons are very young, accused No.
5 being only 17 years of age.
(ii) The behaviour of the accused persons in the Court
throughout the trial was exemplary.
(iii) The accused persons are really anxious to relieve the
suffering of the poor and are absolutely sincere in
this regard.
(iv) In their teens, they have voluntarily denied themselves all comforts and are even risking their lives for
. the sake of poor.
(v) No amount of repression would bring them into the
right path and that they should be won over only by
psychological methods and by persuasion."
(We have borrowed from para 20 of the Special
Leave Petition).
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SUPREME COURT REPORTS
[1979] I S.C.R.
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The High Court has superseded the trial court's discretionary imB
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post for which it has power, provided error in principle or perverse
exercise or like faux pas is pointed out and those reasons stated.
Appellate power to prune or protract is not unbridled when discretion
once exercised is to be upset. And the hlgher court can be draconic,
if grounds exist, but it cannot be laconic.
Dealing with the sentence the learned judge observed :
"Coming to the sentence taking into consideration that the
accused are young people the learned Sessions Judge thought
that the ends of justice. would be met if they are sentenced
to undergo R.I. for 2I years each.
Under Section 395 of
the Indian Penal Code whoever commits dacoity shall be
punishable with imprisomnent for life or R. l. for a period
which may extend to ten years and-shall also be liable to
fine.
No doubt the accused are young persons.
None the
less the offence committed by them is a very grave one. I
think the ends of justice require enhancement of sentence
and it would simply be met if their sentences are enhanced to
undergo R.I. for a period of &even years each and to pay a
fine of Rs. 1,000 each and in default to undergo R.I. for a
further period of six months each.
The four words which do justice to, the trial court are "the ends of
justice".
What are the ends of justice here ? The specific reasons
assigned by the Sessions Court must be countered by clear ratiocination, and then the Supreme Court ordinarily keeps out.
What do we mean by "the ends of justice' ?
Hahs Kelsen in
a farewell lecture in Berkeley, way back in 1952. raised the question
and said :
"When Jesus of Nazareth was brought before Pilate and
admitted that he was a king he, said : 'It was for this that
I was born, and for this that I came to the world, to give
testimony for truth.
Whereupon Pilate asked, 'What is
truth?'
The Roman procurator did not expect, and Jesus
did not give, an answer to this question; for to give testimony
for truth was not the essence of his mission as Hessianic
King. He was born to give testimony for Justice, the justice
to be realised in the Kingdom of God, and for this justice
he died on the cross.
Thus. behind the question of Pilate.
'What is truth' ? arises, out of the blood of Christ, another
still more important question. the eternal question of mankind, What is Justice ?
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Vl.JAYAKUMAR v. PUBLIC PROSECUTOR (Krishna Iyer, !.)
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No other question has been discussed so passionately;
no other question has caused so much precious blood and
so many bitter tears to be shed; no other question has been
the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is today
as unanswered as it ever was.
It seems that it is one of
those questions to which the resigned wisdom applies that
man cannot find a definitive answer, but can only try improve the question" .
It fairly follows that Christian justice was not Roman justice, and
social justice hardly squares with 'Haves' justice.
To enhance the
sentence to seven years R.I. by merely saying the 'ends of justice'
demand it is to continue the question, as Prof. Kelsen put it, not to
meet it.
We find no speaking order in the High Court's substantial
enhancement and restore the sentence of the Sessions Court imposed
for stated reasons none of which have been expressly dissented from
by the High Court or can be called impertinent.
Having desisted from interfering with the conviction and having
rewrted to the sentence of the trial court we feel impelled to make
a few observations on prison justice since under the court's mafldate
these seven teenagers are being sent into that world \Vithin the world
which is substantially sight-proof and sound-proof.
The court has
responsibility to see that punishment serves social defence which is
the validation of deprivation of citizen's liberty.
Correctional treatment, with a rehabilitative orientation, is an imperative of modern
penology which has abandoned jus talionis.
The therapeutic basis of
incarceratory life-style is not unknown to Gandhian India
because
the Father of the Nation regarded a criminal as a morally aberrant
patient.
A hospital setting and a humanitarian ethos must pervade
our prisons if the retributive theory, which is but vengeance in disguise, is to disappear and deterrence as a punitive ob}ecti"" gain success
not through the hardening practice of inhumanity inflicted on prisoners
but by reformation and healing whereby the creative potential of the
prisoner is unfolded.
These values have their roots in Article 19 of
the Constitution which sanctions deprivation of freedoms provided they
render a reasonable service to social defence, public order and security
of the State. By cruel treatment within the cell you injure his psyche
and injury never improves. Nay. you make him recidivist. embittered
and ready to battle with society on emerging from the jail gates. By
karuna informing prison practices you instil a sense of dignity and
worth in the prisoner so that he awakens to a new consciousness and
re-makes himself. It is obvious that it is unreasonable to be torturesome, as it recoils on society and it is reasonable to re compassionate,
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
educative and purposeful because it transforms the man and makes him
more social. This brief divagation leads to one conclusion that within
the jail the5e 7 youngmen shall not be treated with any ting of
brutality-a caveat which has become necessary when we remember
that they are treated as 'naxalites' and the witnesses who have given
evidence against them have been hurriedly rewarded officially by the:
Chief Minister.
The writ of the rule of law, if it runs within the
jail system, shall not permit inhumanity. On appropriate motion made:
to this Court showing violation of the residual rights of a prisoner by
unnecessary cruelty and unreasonable impositions and denials
and
deprivations within the prison·setting, the judicial process will call to
order the prison authorities and make them respect the fundamental
rights of the, appellants. Prisoners are not non·persons. The American
Court has taken the view and we agree with it even on the basis of
our Constitution :
"the responsible prison authorities ...... have abandoned
elemental concepts of decency by permitting conditions to
prevail of a shocking and debased nature, then the courts
must intervene and intervene promptly to restore the primal
rules of a civilized community in accord with the mandate
of the Constitution of the United States."
(257 F. Supp. 674 (S. D. Cal. 1966)
Justice Douglas, speaking of American prisons in Sweeney v. Woodall,(') observed :
"(Petitioner) offered to prove that he was stripped to his
waist and forced to work in the broiling sun all the day long
without a rest period.
He offered to prove that on entrance to the prison he
was forced to serve as a "gal·boy" or female for homosexuals.
among the prisoners.
Lurid details are offered in support of these main charges.
Ifi any of them is true, (petitioner) has been subjected to
cruel and usual punishment in the past aud can be expected
upou his return to have the same awful treatment visited·
upon him .
. . . . If the allegations of the petition are true, th's (petitioner) must suffer torture and mutilation or risk of death
itself to get relief in Alabama.
3 \4 us. 86 (1952).
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VIJAYAKUMAR v. PUBLIC PROSECUTOR (Krishna Iyer, !.)
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.... I rebel at the thought that any human being ... .
should be forced to run a gamut of blood and terror .... to
get his constitutional rights."
Our prisons are not laudably different even in the matter o[ homosexuality.
The point of no return in social defence arri\'es if imprisonment is not geared to therapeutic goals.
On release such an
offender is 'caught in a "revolving door" -leading from arrest on the
street through a brief unprofitable sojourn in jail back to the street
and eventually another arrest.
The jails overcrowded and put to •
use for which they are not suitable have a destructive effect upon ....
inmates.'
The appellants are militant men in a hurry with revolutionary zeal and the good of the society at heart insisting on social justice
which under the Indian Sun is specialising on slow motion. They are
violent and need to be weened off this self-defeating weapon.
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And one harrowing thought relevant to sentence and with a gnm
bearing on prison treatment is that some of these
convicts
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'children' by definition in the Saurashtra Children Act(1) although a
year or so older than 'children' under the Andhra Children Act. Were
they tried in Gujarat as 'children' they would have been neither in a
criminal court nor in prison.
This has a V1icarious impact on the
sentencing discretion.
More importantly, these adolescents, \Vhen
ushered into jail with sex-starved 'Lepers' sprinkled about, become E
homosexual offerings with nocturnal dog-fights.
These unsp,akablc
prison facts perhaps receive indifferent attention on Honie 'Ministry fifes
but must weigh with the court in inducing it to direct that the young
incarcetates are separated dusk-to-dawn from sadistic adults.
We
direct the superintendent to do so, in the expansive powers under Sec.
482 Cr. P. Code.
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Having rzgard to these circumstances, ·we direct that these prisoners
be oriented on a humane course, be treated as 'B' class prisoners.
allowed opportunities of improving themselves and nourishing their
minds with wholesome reading so that on return thence they turn a
new leaf retaining the flavour of their self-sacrificing spirit to change G
'the sorry scheme of things entire' but without blood-letting barbarities
and boo~eranging terrorism.
Recreational opportunities and
other
factors which will improve. rather than injure must be brought into
play when dealing with these prisoners.
These observations in the
direction of prison reforms are relevant for the whole jail system, still
of Raj vintage, because conditions there leav'e much to be desired in
(I) N:t XX! of 1954. S. 4(d).
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SUPREME COURT REPORTS
(J 979] 1 S.C.R.
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the matter of humanism and correctionalism.
We are awarn that there
is a hopeful awakening on the part of the Government at the Central
and State levels towards hospitalisation effect as against 'zoological'
impact. If our observations did catalyse this trend it were good. After
all, the Constitutional culture of our country imposes this obligation,
as we have briefly indicated.
Prison justice is part of social
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justice.
I.'.
S.R.
Appeal dismissed.
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