# MOHAMMAD GIASUDDIN v. STATE OF ANDHRA PRADESH

- **Citation:** [1978] 1 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1977-05-06
- **Bench:** V. R. Krishna Iyer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-giasuddin-v-state-of-andhra-pradesh-7256
- **Pages:** 14

## Headnote

I 53
Criminal Procedure Code 1973-Sec. 248(2)-The new pre-sentencing provision-Punishment-Nature and object of-Reformative punishment-Probation--Parole.
The appellant along with another accused deceived several desperate unemployed youngmen, received various sums of Rs. 1200 by false pretences that
they would secure jobs for them through politically
influential friends
and
A
B
other mate-believe representations. The offence of cheating under -s. 420 IPC
C
was made out and all the 3 courts concurrently convicted both the accused. The
appellant was sentenced to 3 years rigorous imprisonment. The appellant is an
unemployed youngman around 28 years old and used to work as a Junior Assistant in the Andhra Pradesh Secretariat. This Court granted special leave Jimited
to the question of sentence.
Allowing the appeal partly,
HELD : (I) The pre-sentencing prov1510n in s. 248 (2) Cr. P. C. has a
D
penological significance of far-reaching import which has been lost on the trial
magistrate.
Reform of the black letter law is a time-lagging process.
At all
the three tiers the focus was on the serious nature of the crime and no ray of
light on the criminal or on the pertinent variety of social facts surrounding him
penetrated the forensic mentation.
[153 D, E]
(2) Since the whole territory of punishment in its modern setting is virtuaUy
virgin so far as our country is concerned, the court went into the subject in
some incisive depth for the guidance of the subordinate judiciary. [155 G]
E
(3) Progressive criminologists in the world agree that the Gandhian diag-
.... _;~
nosis of offenders as patients and his conception of, prisons as .hospitals-mental
and moral-is the key to the pathology of delinquency and the thefapeutic role
of punishment. The whole man is a healthy man and every man is born good.
Criminality is a curable deviance. If every saint has a past every sinner has a
future and it is the role of la\v to remind both of this.
[155 B-C]
,
( 4) Man is subject to more stresses and strains in this age than ever before
F
and a new class of crimes arising from restlessness of the spirit and frustration
of ambitions has erupted.
White collar crime, as in the present cao;e, belongs
to this disease of man's inside.
Barbarity and injury recoils as injury so that
if healing the mentally or morally maimed
or malformed man is the goal,
awakening the inner being more than torturing through exterior compulsions,
ho1ds out better curative hopes. The infliction of harsh and savage punishment
i!I thus a relic of past and regressive times.
Today sentencing should be a process of re-shaping a person who has deteriorated into criminality and the modern
G
community has a primary stake in the rehabilitation of the offender as a means
of social defence.
Therefore, a therapeutic. rather than a terrorem outlook
should prevail in our criminal courts. [156 E, H, 157 C-D]
Teiani AIR 1974 S C 228, 236; lagmohan Singh AIR 1973 SC 947 and
Santa Singh [1976] 4 SCC 190, referred to.
(~) There is a great discretion vested in the judge while imposing sentence.
The Judge must exercise this discretionary powe.r, draw his inspiration from
the humanitarian spirit of the law 1iving down the traditiona1 precedents which · H
have winked at the personality of the crime doer and been swept away by the
features of the crime.
Unfortunately, the Indian Penal Code still lingers in
the somewhat compartmentalised system of punishment viz.,
imprisonment,
A
B
c
D
E
F
G
154
SUPREME COURT REPORTS
(1978] 1 S.C.R.
simple .or rigorous,. fine and, of cou~e, capital sentence.
There is a wide range
?f choice aitd flexible treatment which must b~ available with the Judge if he
18 to fulfil his tryst with curing the criminal in a hospital setting.
Rule of
thumb sentences of rigorous imprisonment
or other are too insensitive to the
highly delicate and subtle operation expected of a sentencing judge.
Release
on probation, conditional sentences, visits to healing centres, are all on the carda.
[

## Text

_Characters 0–39,971 of 41,373. This is a partial read: ask again with offset=39971 for what follows._

MOHAMMAD GIASUDDIN
v.
STATE OF ANDHRA PRADESH
May 6, 1977
(V. R. KRISHNA IYER AND JASWANT SINGH, JJ.J
I 53
Criminal Procedure Code 1973-Sec. 248(2)-The new pre-sentencing provision-Punishment-Nature and object of-Reformative punishment-Probation--Parole.
The appellant along with another accused deceived several desperate unemployed youngmen, received various sums of Rs. 1200 by false pretences that
they would secure jobs for them through politically
influential friends
and
A
B
other mate-believe representations. The offence of cheating under -s. 420 IPC
C
was made out and all the 3 courts concurrently convicted both the accused. The
appellant was sentenced to 3 years rigorous imprisonment. The appellant is an
unemployed youngman around 28 years old and used to work as a Junior Assistant in the Andhra Pradesh Secretariat. This Court granted special leave Jimited
to the question of sentence.
Allowing the appeal partly,
HELD : (I) The pre-sentencing prov1510n in s. 248 (2) Cr. P. C. has a
D
penological significance of far-reaching import which has been lost on the trial
magistrate.
Reform of the black letter law is a time-lagging process.
At all
the three tiers the focus was on the serious nature of the crime and no ray of
light on the criminal or on the pertinent variety of social facts surrounding him
penetrated the forensic mentation.
[153 D, E]
(2) Since the whole territory of punishment in its modern setting is virtuaUy
virgin so far as our country is concerned, the court went into the subject in
some incisive depth for the guidance of the subordinate judiciary. [155 G]
E
(3) Progressive criminologists in the world agree that the Gandhian diag-
.... _;~
nosis of offenders as patients and his conception of, prisons as .hospitals-mental
and moral-is the key to the pathology of delinquency and the thefapeutic role
of punishment. The whole man is a healthy man and every man is born good.
Criminality is a curable deviance. If every saint has a past every sinner has a
future and it is the role of la\v to remind both of this.
[155 B-C]
,
( 4) Man is subject to more stresses and strains in this age than ever before
F
and a new class of crimes arising from restlessness of the spirit and frustration
of ambitions has erupted.
White collar crime, as in the present cao;e, belongs
to this disease of man's inside.
Barbarity and injury recoils as injury so that
if healing the mentally or morally maimed
or malformed man is the goal,
awakening the inner being more than torturing through exterior compulsions,
ho1ds out better curative hopes. The infliction of harsh and savage punishment
i!I thus a relic of past and regressive times.
Today sentencing should be a process of re-shaping a person who has deteriorated into criminality and the modern
G
community has a primary stake in the rehabilitation of the offender as a means
of social defence.
Therefore, a therapeutic. rather than a terrorem outlook
should prevail in our criminal courts. [156 E, H, 157 C-D]
Teiani AIR 1974 S C 228, 236; lagmohan Singh AIR 1973 SC 947 and
Santa Singh [1976] 4 SCC 190, referred to.
(~) There is a great discretion vested in the judge while imposing sentence.
The Judge must exercise this discretionary powe.r, draw his inspiration from
the humanitarian spirit of the law 1iving down the traditiona1 precedents which · H
have winked at the personality of the crime doer and been swept away by the
features of the crime.
Unfortunately, the Indian Penal Code still lingers in
the somewhat compartmentalised system of punishment viz.,
imprisonment,
A
B
c
D
E
F
G
154
SUPREME COURT REPORTS
(1978] 1 S.C.R.
simple .or rigorous,. fine and, of cou~e, capital sentence.
There is a wide range
?f choice aitd flexible treatment which must b~ available with the Judge if he
18 to fulfil his tryst with curing the criminal in a hospital setting.
Rule of
thumb sentences of rigorous imprisonment
or other are too insensitive to the
highly delicate and subtle operation expected of a sentencing judge.
Release
on probation, conditional sentences, visits to healing centres, are all on the carda.
[161 E-H 162 Al
(6) In the present case the crime is doubly bad and throws light on how
:ullible youngmen part with hard earned
money in the hope that political
influence indirectly purchased through money can secure jobs obliquely.
But
the victims of the crime must be commisserated with and in such white collar
offences it is proper to insist upon reparation of the victims apart from any other
sentence.
The Court,
therefore, directed the
appellant to pay a fine of
Rs. 1200/- which was directed to be made over by the Trial Court to P.W. 1
who was victim in the present case. [162 B--FGl
(7) The appellant is a youngman of 28 years.
He has a degree in Oriental
Languages and another in Commerce. He was working as a Junior Assistant
in the Government Secretariat and has now lost the post consequent on the
conviction.
This is a hard lesson in life.
The socio-economic circumstances of
the man deserve notice. His parents are old and financially weak. His parents,
sisters and younger brothers are his dependents.
The younger brother is also
onemployed. These factors suggest that the economic blow, if the appellant is
imprisoned for long, will be upon his brother at College and other members of
bis family.
He had not comm!tted any previous crime. The court rejected
the prayer of the appellant for release on probation on the ground that the
appellant had a deliberate plan behind the crime operated in partnership upon
4 or more persons and that his age is such that he cannot be called immature.
The court, however, reduced the sentence to 18 months. The court also recommended that :
I
(a) he should not be given work of a monotonous, mechanical,
degrading
type,
but of a
mental,
intellectual or
lite
type
mixed with a little manual labour. This would ensure that the person does work more or less of the kind he used to;
(b) the appellant must be paid a reasonable fraction of remuneration
by way of wages for the work done, as
unpaid work is bonded
labour and humiliating;
(c) the appellant should be allowed to participate in sports and game1.
and take to artistic activity and/or meditational course. He should
be giv:en such opportunities by the Jail &.uthoritics as would stimulate
his creativity and sensitivity.
(d) a guarded parole release every 3 months for at least a week.
[162 H, 163 A-El
Humanitarian winds must blow into the prison barricades.
Jail reforms
from abolition of convict's constume and conscript labour to restoration and
fraternal touch, are on the- urgent agenda of the nation. Our prisons should be
correctional houses, and not cruel iron aching the soul.
[164 C]
--\......,
The court observed that the State should not hesitate to respect the personality in each convict in the spirit of the prearnble to the Constitution and not to
permit the colonial hang-over of: putting people behind the bars and then forget
about th<m.
[164 Fl
R. v. King [1970] (2) All, E.R. 248 and R. v. lronfield [1971) (1) All E.R.
202, referred to.
CRIMINAL' Al'PllLLATE JURISDICTION:
Criminal Appeal No.
195 of 1977.
., .
H
Appeal by Special Leave from the Judgment and Order dated the
25-10-1976 of the Audhra Pradesh High Court in Cr!. R., Case No.
660 of 1970 and Cr!. R.P. No. 646 of 1976.
'
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GIASUDDIN v. A. P. STATE (Krishna Iyer, !.)
155
G. Venkatrama Sastry and G. Narasinhulu for the Appellant.
P. Parameswara Rao and G. Narayana Rao for Respondent.
The Judgment of the Court was delivered by
KRISHNA IYBR, J.-Some basic issues bearing on prescription
of
punishments arise for judicial investigation .in this criminal
appeal
where leave has been limited to tailoring the sentence by
appellate
review to fit the gravity of the delinquency and the redemption of
the deviant ..
The facts leading up to the conviction may need brief narration.
The appellant, along with another accnsed, deceived several desperate
unemployed yonng men, received various snms of Rs. 1200/-
by
false pretences that they would secnre jobs for them through politically influential friends and other make-believe representations. The
offence of cheating under section 420 IPC was made out and conviction of both the accused followed.
The 1st accused (appellant before us) is a young man around 28 years old and works as a Junior
Assistant in the Planning and Financial Department of the Andhra
Pradesh Secretariat and the other accused is his friend who
personated as a State Port Officer.
Before the trial court, there was
a formal, almost pharisaic, fulfilment ·of the pre-sentencing provision
in section 248 (2) Cr. P. C. 1973. The opportunity contemplated in
the sub-sectiOn has a penological significance of far-reaching import,
which has been lost on the trial Magistrate.
For he disposed of
this benignant obligation by a brief ritual :
"I made of the a_ccused that they were found
guilty
und_er section 420 IPC and the punishment contemplated
thereof."
Reform of the black letter law is a time-lagging process.
But
judicial metabolism is sometimes slower to assimilate the
spiritual
substance of creative ideas finding their way into the statute book.
This may explain why the appellate courts fell
in line with
the
Magistrate's mechanical approach and confirmed the condign punishment of 3 years' rigorous imprisonment.
At all the three tiers the
f,ocus was on the serious nature of the crime (cheating of young men
by a government servant and his blackguardly companion) and no
ray of light on the 'criminal' or on the pertinent variety of social facts,
surrounding him penetrated the forensic
mentation.
The humane
art of sentencing remains 'a retarded child of the Indian
criminal
system.
Now we enter the area of punitive treatment of criminals,
assuming that the guilt has been brought home.
Certain elemental
factors are 'significant strands of criminological thougbt.
Since
the
whole territory of punishment in its modem setting is virtually virgin
~o far as our country is concerned, we may as well go into the subA
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ject in some incisive depth for the guidance of the subordinate judiH
ciary.
The subject of study takes us to our cultural heritage that
there is divinity in every man which has been translated into
the
ll-722SCI/77.
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156
SUPREME CQURT REPORTS
(1978] 1 S.C.R.
constitutional essence of the dignity and worth of the human person.
We take the liberty of making an Indian approach and then strike a
COS!lllc note.
Pr~gressive criminologists across the world will agree that
the
G~dh1an diagnosis of o!lenders at patients and his conception
o:ll
prisons as hosp1tals-mental and .moral-is the key to the pathology·
of dehnquency and the therapeul!c role of 'punishment' The whole
man 1s a healthy man and every man is born good.
Criminality is
a curab'le deviance.
The morality of the Jaw may vary, but is real.
The basic goodness of all human beings is a spiritual axiom, a fall-out
of the advaita of cosmic creation and the spring of correctional thought
in criminology.
If every saint has a past, every sinner has a future, and it is thtl
role of law to remind both of this. The Indian legal genius of old
has made a healthy contribution to the world treasury of criminology.
The drawback of our criminal process is that oiten they are
built
on the bricks of impressionist opinions and dated values,
ignoring
empirical studies and deeper researches.
India, like every other country, has its own crime complex and
dilemma of punishment. Solutions to tangled social issues do not come
like the crack of down but are the . product of research and
study,
oriented on the founding faiths of society and driving towards
that
transformation which is the goal of free India.
Man is
subject t<i
more stresses and strains in this age than ever before, and a new
class of crimes arising from restlessness oi the spirit and frustration
of ambiti0rrs has erupted.
White-collar crime, with which we
are
concerned here, belongs to this disease of man's inside.
If the psychic perspective and the spiritual insight we have tried to
project is valid, the police billy and the prison drill cannot 'ministe~
to a mind diseased', nor tone down the tension, release the repression,
unbend the perversion, each of which shows up as debased deviance,
violent vice and behavioral turpitude.
It is a truism, often forgotten
in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally
or morally maimed or malformed man
(found guilty)
is the goal,
awakening the inner being, more than torturing through exterior compulsions, holds out better curative hopes.
An aside.
A holistic view of sentencing and a finer perception of
the effect of imprisonment give short shrift to draconian severity as ·
self-defeating and fillips meditational relaxation, psychic medication
and like exercises as apt to be more rewarding.
Therefore,
the
emphasis has to be as much on man as on the system, on the inner
imbalance as on the outer tensions.
Perhaps the time has come for
Indian criminologists to rely more on Patanjali sqtra as a scientific
curative for crimogenic factors than on the blind jail term set
out
in the Penal Code and that may be why western researchers are now
seeking Indian yogic ways of normalising the individual and the group.
-
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GIASUDD!N V. A. P. STATE (Krishna Iyer, l.)
l57
Western jurisdiction and sociologists, from their own angle have
struck a like note.
Sir Samual Romilly, critical of the brutal penalties in the then. Britain, said m 1817 : "'1 he laws of England are
written in blood".
Alfieri has suggested : 'society prepares the crime,
the criminal commits it.
George Micodotis, Director of CriminologicaLResearch Centre, Athens, Greece, maintains that 'Crime is the
result ol the lack of the nght kind of education.'
It is thus plain that.
crime is a pathological aberra!Ion, that the criminal can oramarily be
redeemed, that the State has to rehabilitate rather than avenge.
The
sub-culture that leads to anti-social behaviour
has to be countered
not by undue cruelty but by re-culturisation.
Therefore, the focus
of interest in penology is the individual, and goal is salvaging him for
society.
The infliction of harsh and savage punishment is thus a
relic of past and regressive times.
The human today views 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 social defense.
We,
therefore consider 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.
In the words of
George Bernard Shaw : 'If you are to punish a man retributively, you
must injnre him.
If you. are to reform him, you must improve him
and, men are not improved by injuries'.
We may permit ourselves
the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are
going to have anything to do with the criminal courts, you should see
for yourseli the conditions under which prisoners serve their sentences.'
In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compa~sion :
"Circuit Judge Christmas Humphreys told the
BBC
reporter recently that a judge looks 'at the man in the dock
in a different way : not just a criminal to be punished, but
a fellow human being, another form of life who is also a
f.orm of the same one life as oneself.'
In the context of
karuna and punishment for karma the same Judge said :
'The two things are not incompatible.
You do punish him
for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against
the man for doing something harmful.
You feel with him;
that is what compassion means:'
The Listener, November 25, 1976, p. (692)
Incidentally, we may glance at the prison system which
leaves
much to be desired in the sense of humanizing and reforming the
man we call criminal.
Jimmy Carter, currently President of the United States and not a
law man, made certain observations in his Law Day Speech to
the
University of Georgia while he was Governor of that State, which bear
A
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>->.,
quotation :
H
"In our prisons, which in the past have been a disgrace
to Georgia, we've tried to make substantive changes in the
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158
SUPREME COURT REPORTS
[1978] 1 S.C.R.
quality oil those who administer them and to put a new
realm of understanding and hope and compassion into the
administration of that portion of the system of
justice.
Ninety-five percent of those who are presently incarcerated
in prisons will be returned to be our neighbors.
And now
the thrust of the entire program, as initiated under
Ellis
Mac Dougall and now continued under Dr. Ault, is to try to
discern in the soul of each convicted and sentenced person,
redeeming features that can be
enhanced.
We plan a
career for that person to be pursued while he is in prison. I
believe that the early data that we have on recidivism rates
indicates the efficacy of what we've done."
In the light of what we propose to do, in disposing of this appeal,
another observation of Jimmy Carter in the course of the same speech
is relevant :
"Well, I don't know the theory of law, but there is one
other point 1 want to make, just for your own consideration.
I think we've made great progress in the Pardons and Paroles
Board since I've
been
in Office
and
since
we've
reorganized the Goyernment.
We have five very enlightened people there now.
And on occasion they go out to
the prison system to interview the mmates, to decide whether
or not they are worthy to be released after they serve one
third of their sentence.
I think most jurors and most judges
feel that when they give the sentence, they know that after
a third of the sentence has gone by, they will be eligible for
careful consideration.
Just think for a moment abont your
own son or your own father or your own daughter being in
prison, having served seven years of a lif.etime term and
being considered for a release.
Don't you think that they
ought to be examined and that the pardons and Paroles
Board ought to look them in the eye and ask them a question and if they are turned down, ought to give them some
substantive reason why they are not released and what they
can do to correct their defects ?'".
We have dealt with the subject sufficienty to set the humanitarian
tone that must inform the sentencing judge, the Karuna that must line
bis verdict.
The same compassionate outlook is reflected in some
of the decision of this Court and of the High Courts indicating
the
distance between current penal strategy and Hammurabi's
Code.
which, in about 1975 B.C., insited 'on an eye for an eye, a tooth for
a tooth'.
Referring to the earlier Criminal Procedure Code and its deficiency in regard to sentencing, this Court observed in Tejani (AIR 197 4
SC 228, 236) :
"Finally comes the post-conviction stage where the current criminal system is weakest.
The Court's approach has
at once to be socially informed and personalised.
Unfortunately, the meaningful collection and
presentation
of
-
•
)
G!ASUDDIN v. A. P. STATE (Krishna Iyer, J.)
159
the penological facts bearing on the background of the individual, the dimension of damage, the social milieu and what
not-these are not provided in the Code and we have to
make intelligent hunches on the basis of materials adduced
to prove guilt.
In this unsatisfacfory situation which needs
legislative remedying we go by certain broad features."
Similarly, in Jagmohan Singh (AIR 1973 SC 947) : 1973 (2)
SCR 541,560 this Court observed :
"The sentence follows the conviction, and it is true that
no formal procedure for producing evidence with reference
to the sentence is specifically provided.
The reason is that
relevant facts and circumstances impinging on tbe nature
and circumstances of the crime are already before the Court.
Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered
by the Court unless there is something in the evidence itself
which belies him or the Public Prosecutor for the State challenges the facts.
If the matter is relevant and is essential
to be considered, there is nothing in the Cr. P. C. which prevents additional evidence being taken.
It must however be
sta(ed that it is not the experience of criminal courts in India
that the accused with a view to obtaining a reduced
sentence ever offers to call additional evidence.
However, it is necessary to emphasize that the Court is
broadly concerned with the facts and circumstances whether
aggravating or mitigating, which are connected with the particular crime under enquiry.
All such facts and circumstances are capable of being proved in accordance with the
provisions of the Indian Evidence Act in a trial regulated
by the Cr. P.C.
The trial thus does not come to an
end
until all the relevant facts are proved and the counsel
on
both sides have an opportunity to address the court. ..... "
The Kerala High Court, in Shiva Prasad (1969 Ker. L.T. 862)
had also something useful to say in this regard :
"Criminal trial in our country ·is largely devoted only to
finding out whether the man in the dock is guilty.
It is a
major deficiency in the Indian system of criminal trials that
the complex but important sentencing factors are not given
sufficient emphasis and materials are not presented before
. the court to help it for a correct judgment in the proper per -
sonalised, punitive treatment suited to the offender and the
crime ... , .... "
. Likewise,
Shri ~us~ce Dua
(as he then
was) of the Punjab
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High
Court
_h_ad . md1cated
~he guidelines on the
application
of the rehab1lttat1ve theory m
Lekharaj &
Ors v.
State
H
(AIR 1960 Punjab 482) where the learned Judge had pointed
out
the relevance of the offender's circumstances and social milieu, apart
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160
SUPREME COURT REPORTS
[1978] 1 s.c.11.
A
from the daring and reprehensible nature of the offence.
The Law
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Commission of India (in 47th Report) has summed up the components of a proper sentence :
"A proper sentence is a composite of many factors, including the nature of the offence,,
the
circumstancesextenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, the age of the offender,
the professional and
social
record
of the offender,
the background of the offender with reference to education,
home life, sobriety and social adjustment, the emotional and
mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return
ot
the offender to normal life in the community, the possibility
of treatment or of training <ll: the offender, the possibility
that the sentence may serve as a deterrent to crime by this
offender, or by others, and the present community need, if
MY for such a deterrent in respect to the particular type of
offence involved." (para 7.44)
All that we have said upto now emphasize,> the need on the part
of the judges to see that sentencing ceases to be downgraded
to
Cinderella status.
The new Criminal Procedure Code, 1973 incorporates some of>
these ideas and gives an opportunity in s. 248(2) to
both parties
to bring to the notice of the court facts and circumstances which will
help personalize the sentence from a reformative angle.
This Conrt,
in Santa Singh (1976) 4 SCC 190, has emphasized how fundamental
it is to put such provision to dynamic judicial use, while dealing with
the analogous provisions in s. 235(2) :
"This new provision ins. 235(2) is in consonance with
the modern trends in penology and sentencing procedures.
There was no such provision in the old Code.
It
was
realised that sentencing is an important stage in the process
of administration of criminal justice-as important as
the
adjudication of guilt-and it should not be consigned
to
a subsidiary position as if it were a matter of not much consequence.
It should be a matter of some anxiety to
the
court to impose an appropriate punishment on the criminal
and sentencing should, therefore, receive serious attention
pf the Court. (p. 194).
Modern penology regards crime and criminal as equally
material when the right sentence has to be picked out.
It
turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the refonnist component is as much operative as the deterrent
element.
It is necessary for this purpose that facts of a
social and personal nature, sometimes altogether irrelevant
if not injurious, at the stage of fixing the guilt, may have to
be brought to the notice of the court when the actual sentence is determined. (p. 195).
·\
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GIASUDDIN v. A. P. STATE (Krishna Iyer, J.)
161
A proper sentence is the amalgam of many factors such
as the nature of the offence, the circumstances extenuating
oi aggravating--0f the offence, the prior criminal record,
if any, of the offender, the age of the offender, the record
of the offender as to employment, the background of the
offender with reference to education, home life, 5obriety
and social adjustment, the emotional and mental condition
of the offender, the prospects for the rehabilitation of
the
offender, the possibility of return of the offender to normal
life in the community, the possibility of treatment or training of the offender, the possibility that the
sentence may
serve as a deterrent to crime by the offender or by others
and the current community need, if any, for such a deterrent Ill respect to the particular type of offence.
These
factors have to be taken into account by the Court in deciding upon the appropriate sentence. (p. 195).
The hearing contemplaced by section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the
accused to place before the court facts and material relating
to various factors bearing on the question of sentence and
if they are contested by other side, then to produce evidence
for the purpose of establishing the same.
Of courre, care
would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned
into an instrument for unduly protracting the proceedings.
· The claim of due and proper hearing would have to be
harmonised with the requirement of expeditious disposal of
proceedings." (p. 196).
It will thus be seen that there is a great" discretion vested in the
Judge, especially when
pluralistic
factors
enter his
calculations
Even so, the judge must exercise this discretionary power, drawing
his inspiration from the humanitarian spirit of the law, and
living
down the traditional precedents which have winked at the personality
of the crime doer and been swept away by the features of the crime.
What is dated has to be discarded.
What is current has to be incorporated.
Therefore innovation, in all conscience, is in the field
of judicial discretion.
Unfortunately, the Indian Penal Code still lingers in the somewhat
compartmentalised system of 1 punishment
viz.
imprisonment,
simple or rigorous, fine and, of course, capital sentence.
There is
a wide range of choice and flexible treatment which must be
available with the judge if he is to fulfil his tryst with cruing the
criminal
in a hospital setting.
Maybe in an appropriate case actual hospital
treatment may have to be prescribed as part of the sentence.
In
another case, liberal parole may have to be suggested and, yet in a
third category, engaging in certain types of occupation 01: even going
through me<litational drills or other courses may be part of the senten-
. cing prescription.
The perspective having changed, the legal strategies and judicial resources, in their variety, also have to change. Rule
A
B
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162
SUPREME COURT REPORTS
[1978) 1 S.C.R.
of thumb sentences of rigorous imprisorment or other are too insensitive to the highly delicate and subtle operation expected of a sentencing judge.
Release on probation, conditional sentences, visits
to
healing centres, are all on the cards.
We do not wish to be exhamtive.
Indeed, we cannot be.
Sentencing justice is a facet of social justice, even as redemption
of a crime-doer is an aspect of restoration of a whole personality. Till
the new Code recognised statutorily that punishment required consi- ·
derations beyond the nature of the crime and circumstances surroundi.ng the crime and provided a second stage for bringing in such additional materials, the Indian courts bad, by and large, assigned an obsolescent backseat to the sophisticated judgment on sentencing. Now
this judicial skill bas to come of age.
The sentencing stance of the court bas been outlined by us and
the next question is what 'hospitalization' techniques will best serve
and sentencee, having due regard to bis just deserts, blending a feeling
for a man behind the crime, defence of society by a deterrent component and a scientific therapeutic attitude at once correctional and
realistic.
The available resources for achieving these ends
within
D
the prison campus also has to be considered in this context. Noticing
the scant regard paid by the courts below to the soul of s. 248 (2) of
the Code and compelled to gather information having sentencing relevancy, we permitted counsel on both sides in the present
appeal
to file affidavits and other materials to help the Court make a jt1diciom
choice of the appropriate 'penal' treatment.
Both sides have filed
affidavits which disclose some facts pertinent to the project.
E
F
We have earlier mentioned that the social abhorrence of the crime
is an input, since the emphatic denunciation of a crime by the community must be reflected. in the punishment.
From this angle we
agree with the trial court that unconscionable exploitation of unfortunately unemployed 'young men by heartless deception, compounded
by pretension to political influence, calls for punitive severity to serve
as deterrent.
The crime here is doubly bad and throws light on how
gullible young men part with hard money in the hope that political
influence, indirectly purchased through money, can secure jobs obliquely.
But then the victims of the crime must be commisserated
with and in such white-collar offences it is proper to insist upon reparation of the victims, apart from any other sentence.
In the pre;-
sent case, four young men have been wheedled out of their little fortunes by two convicts and so, to drive home a sense of moral responsibility to repair the injury inflicted, we think it right to direct the air
pe!lant to pay a fine of Rs. 1200/- which will be made over by the
trial court to P.W.1 (whose case alone is the subject of the prosecution)
under section 357 of the Code.
That is to say, a fine of Rs. 1200/-
is imposed will be paid over to the aforesaid P.W.l.
G
H
What are the other circumstances which we may look into ? The
appellant is a young man of 28 years.
He has a degree in Bachelor
of Oriental Languages and another in Commerce, which suggests that
he may respond to new cultural impact. He was working as a Junior
-
y
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GIASUDDIN v. A. P. STATE (Krishna Iyer, l.)
163
Assistant in the Government Secretariat and has now Jost
the
post
consequent on, the conviction.
This is a hard lesson in life.
The
socio-economic circumstances of the man deserve to be noticed. His
parents are old and financially weak, .since. they and the appellant's
sisters and younger brother are his dependents.
The younger brother
also is unemployed. These factors suggest that the economic blow,
if the appellant
is
imprisoned
for long,
will
be
upon
his
brother at College and the other
members
of
his
family.
Extenuation is implicit in this
facl
He prays
for
release
on
probation or under s. 360 of the Code because he has no
blemish by way of previous crime or bad official record.
Having
regard to his age (not immature) and the deliberate plan behind the
crime operated in partnership upon four-perhaps more-persons,
we reject his request as over-ambitious.
At the same time, a contrite convict, yet in his twenties, may deserve clement treatment
A
just reduction of the sentence is justified and we think that incarceration for 18 months may be adequate.
But this long period has to
be converted into a spell of healing spent in an intensive care ward
of the penitentiary, if we may say so figuratively.
How can this be
achieved ?
First, by congenial work which gives job satis!actionnot jail frustration, nor further criminalisation.
We therefore direct
the State Government to see that within the framework of the
Jail
Rules, the appellant is assigned work not of a monotonous, mechanical, degrading type, but of a mental, intellectual, or like type mixed
with a little manual labour(!). This will ensure that the prisoner does
work more or less of the kind he is used to.
The jail, certainly, must
be able to find this kind of work for him, even on its own administra-
.tive side-under proper safeguards though.
A
B
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Shri PP Rao, appearing for the State, assures us that in keeping
with this constructive suggestion of the Court the jail authorities will
assign to the appellant congenial work of a mental-cum-manual type
and promote him to an officer-warder's position if his conduct is good.
We have also made the suggestion that the appellant must be paid a
reasonable faction of remuneration by . way of wages for the work
done, since unpaid work is bonded labour and humiliating.
This
amount may be remitted to his lather once in three months.
Shri
Rao, on behalf of the State Government, has assured the Court that
immediate consideration will be given to this idea by the State Government and the iail authorities.
F
We also think that the appellant has slipped into crime for want
G
of moral fibre.
If competent Jail Visitors could organise for
him
processes which will instil into him a sense of ethics it may help him
become a better man.
Self-expression and self-realisation have
a
curative effect.
Therefore, any sports and games, artistic activity
-
---:-::-,------,----
(1) Says Gandhiji in Harijan : Feb. 6, 1947 "Intellectual work. is. i~portant
~nd has an undoubted place in the scheme of life. But what I insist on
is the necessity of physical labour. No man, I claim, ought to be free
from that obligation; it wi11 serve to improve even the quality of his in ..
te11ectual output".
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164
SUPREME COURT REPORTS
(1978] 1 S.C.R.
and/ or meditational course, may also reform.
We strongly recommend that the appellant be given such opportunities by the jail authorities as wi'il stimulate his creativity and 5ensitivity.
In this connection we may even refer to proven advantages of kindling
creative
intelligence and normalising inner imbalance reportedly accomplished
by· Transcendental Meditation (TM) propagated by Maharshi Maheiih
Yogi in many countries in the west.
Research projects conducted in
various countries bring out that people practising such or like courses
change their social behaviour and, reduce their crime-proneness.
We
do not prescribe anything definite but indicate what the prison doctors
may hopefully consider.
While it is beyond us to say whether the
present facilities inside the Central Prison, Hyderabad, make it feasible for the appellant to enjoy these benefits and thereby improve his
inner being, we strongly feel that the humanitarian winds must blow
into the prison barricades. More than this is expected in this decade,
when jail reforms, from abolition of convict's costume and conscript
labour to restoration of basic companionship and atmosphere of selfrespect and fraternal touch, are on the urgent agenda of the nation.
Our prisons should be correctional houses, not cruel iron aching the
soul
We have given thought to another humanising strategy, viz., a
guarded parole release every three months for at least a week, punctuating the total prison term. We direct the State Government to
extend this parole facility to the appellant, Jail Rules permitting, and
the appellant submitting to conditions of discipline and initiation into
an uplifting exercise during the parole interval.
We further direct the
Advisory Board of the Prison, periodically to check whether the appellant is maki:1g progress and the Jail au ho tit es are help.ng in the process and implementing the prescription hereinabove given:
Indeed,
the direction of prison reform is not towards dehumanization but
rehumanization, nbt maim and mayhem -and vulgar callousness but
man-making experiments designed to restore the dignity of the individual and the worth of the human person.
This majuscule strategy
involves orientation courses for the prison personnel.
The State will
not hesitate, we expect, to respect the personality in each convict, in the
spirit of the Preamble to the Constitution and will not permit tl>e colonial hangover of putting people 'behind the bars' and then
forget
about them. This nation cannot-and, if it remembers its incarcerated leaders and freedom fighters-will not but revolutionize the conditions inside that grim little world.
We make these persistent observations only to drive home the imperative of Freedom-tho! its
deprivation, by the State. is val;dated only by a plan to make the sentencee more worthy of that birthright. There is a spiritual dimension
to the first page of our Constitution wh'ch projects into penology.
Indian courts may draw inspiration from Patanjali sutra even as they
derive punitive patterns from the Penal Code (most of Indian meditational therapy is based on the sutras of Patania/i).
Before we close this judgment we wish to dispel a possible misapprehension about the fine we are imposing upon the cheat although
we have proceeded on the footing of his family being relatively indigent.
The further direction for making over the fine to the der.eivees
also needs a small explanation.
...
GIASUDDIN v. A. P. STATE (Krishna Iyer,!.)
165
There is nothing in principle, as Lord Parker pointed out in R. V.
King (1970 2 All. E. R. 248) to prevent a court from imposing a fine
even when. imposing a suspended sentence of imprisonment. 'Indeed,
in many cases it is quite a good thing to impose a fine which adds
a sting .. .' of course, the fine should not be altogether beyond the ·
sentences means.
A
As to whether it is wrong to make a sort of compensation orderl
B
in a case of a convicted person without much means, again, Lord
Parker in R. V. lronfield (1971 1 All. E. R. 202) has observed :
"If a man takes someone else's property or goods, he is
liable in Law to make restitution, or pay compensation ...
A victim. . . . need not be put to the additional trouble and
expense of independent proceedings, and certainly cannot be
c
required to forego his rights in order to facilitate the rehabilitation of the man who has despoiled him."
Counsel for the appellant has repeated that his· client is taking
examination in Accountancy--an indication of this anxiety to improve
himself.
We have no doubt that the jail authorities will afford facilities to the appellant to do his last-minutes studies and take the exami-
!nation and, for that purpose, allow him to go to any library and the
D
examination hall under proper conditions of security.
The atlidavit on beha)lf of the State indicates that a tendency to
tum a new page is discernible in the appellant and this has to be
streng'hened imaginatively by the Jail Superintendent, if need be, by
affording him opportunity for initiation into Transcendental Meditation courses or like exercises provided the appellant shows an appeE
tite in that direction and facilities are available in Hyderabad City.
Shri P. P. Rao, fOl' the State, has represented that the Andhrn
Pradesh Government is processing rules for payment of wages
to
prisoners who work but that it may take a few months morei for finalisation.