NATIONAL COMMISSION OF WOMENversusSTATE OF DELHI & ANR.

                    [2010] 10 S.C.R. 905


           NATIONAL COMMISSION OF WOMEN                          A
                              v.
                STATE OF DELHI & ANR.
   (Special Leave Petition (Criminal) No. 2506 of 2009)
                       JULY 23, 2010
                                                                 B
    [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                   PRASAD, JJ.]

     Penal Code, 1860: .
                                                                 c
      s. 376 - A girl of 21 years subjected to sexual intercourse
 with the false promise of marriage - The girl committed
suicide - Trial court convicting the accused u/s 306 with 10
years RI and uls 376 with life imprisonment - Acquittal by High
Court as regards offence punishable uls 306 and reduction 0
of sentence u/s 376 to the period already undergone viz.
about. 5 years and six months - Special .leave petition filed
by National Commission for Women challenging reduction
of sentence u/s 376 - HELD: Sub-s.(1) of s.376 provides for
imposition of a sentence of upto ten years or life but the E
proviso says that the court may for adequate and special
reasons, impose a lesser sentence - The discretion exercised
by a court, particularly a superior court, should not be lightly
interfered with - Several factors had been taken into account
by the High Court while imposing a lesser sentence and it
would be improper for Supreme Court to interfere with the High F
Court's discretion on the quantum of sentence except in
extraordinary circumstances - There is no such circumstance
- Sentence/Sentencing - Constitution of India, 1950 - Article
136 - Code of Criminal Procedure, 1973 - s.377.
                                                                  G
     CODE OF CRIMINAL PROCEDURE, 1973:

    s. 377 - Appeal against sentence on the ground of its.
inadequacy - National Commission for Women filing SLP
                             905                                 H
    906      SUPREME COURT REPORTS              [2010] 10 S.C.R.


A   before Supreme Court challenging the judgment of High
    Court by which it reduced the sentence u/s 376 /PC from life
    imprisonment to the period already undergone viz. 5 years
    and six months - HELD: Section 377 specifically provides
    that it is the State Government or the Central Government
B   which can issue a direction to the Public Prosecutor to present
    an appeal before the Court of Session or the High Court on
    the ground of inadequacy of the sentence - This section does
    not in any manner authorise an appeal to the Supreme Court
    - Therefore, the Commission was not entitled to maintain an
c   appeal in the Supreme Court against the order of the High
    Court - Penal Code, 1860 - s.376 - Constitution of India,
    1950 - Article 136.

          Constitution of India, 1950:

D         Article 136 - Permission to file special leave petition -
    Revocation of - National Commission for Women filing
    special leave petition with permission to file the SLP -
    Challenging judgment of High Court reducing the sentence
    of life imprisonment uls 376 /PC awarded by trial court to the
E   period already undergone which was about five years and six
    months - HELD: An appeal is the creature of a Statute and
    cannot lie under any inherent power - Supreme Coult does
    undoubtedly grant leave to appeal under the discretionary
    power conferred under Article 136, at the behest of the State
    or an affected private individual but to permit anybody or an
F
    organization pro-bono publico to file an appeal would cause
    utter confusion in criminal justice system - While an appeal
    by a private individual can be entertained but it should be
    done sparingly and after due vigilance and, particularly, in a
    case where the remedy has been shut out for the victims due
G   to malafides on the part of the State functionaries or due to
    inability of the victims to approach the Court - In the instant
    case, neither the State which is the complainant nor the heirs
    of the deceased have chosen to file a petition in the High
    Court - As this responsibility has been taken up by the
H
 NATIONAL COMMISSION OF WOMEN v. STATE OF 907
               DELHI & ANR.

 Commission at its own volition, this is clearly not permissible A
 in the light of the judgments of this Court - Atjcordingly,
  Special Leave Petition is dismissed as· not mai~jfainable -
  Permission to file Special Leave Petition grant:ed by the
 Court's order dated 2.4.2009 is, accordingly, revoked -.Party
 - Penal Code, 1860 - s.376 - Code of Criminal Procedure, B
. 1973 - s.377 - Administration of criminal justice.
     Pritam Singh vs. State AIR (37) 1950 SC 169; P.S.R.
Sadhanantham vs. Arunachalam 1980 (2) SCR 873 = 1980
(3) sec 141 - relied on.
                     Case Law Reference:
                                                                c
     AIR (37) 1950 SC 169        relied on            para 8
     1980 (2) SCR 873            relied on            para 8
    CRIMINAL APPELLATE JURISDICTION: SLP (Criminal)             D
No. 2506 of 2009.
    From the Judgment& Order dated 9.2.2009 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 389 of
2008.
    Priya Hingorani and Aman Hingorani (for Hingorani &         E
Associates) for the Appellant.
    Mohan Parasaran, ASG, Vivek Narayan Sharma, D.K.
Thakur and Anil Katiyar for the Respondents.
     The following order of the Court was delivered
                                                                F
                           ORDER       .
     1. This Special Leave Petition has been filed by the
National Commission for Women (hereinafter called the
'Commission') statedly under the inherent powers of this Court
challenging the order of the High Court dated 9 th February, G
2009, whereby the respondent No.2 has been acquitted for the
offence under Section 306 of the Indian Penal Code and while
maintaining his conviction under Section 376 of the Indian
Penal Code, the sentence has been reduced to that already
undergone, which is said to be about five years and six months. H
    908       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A         2. The facts are as under:
         3.1 Sunita then aged 21 years, committed suicide by
    consuming aluminium phosphide tablets on 14th April, 2003.
    A suicide note Ex. P .4 (G) found near her body was proved to
    be written in her hand. In the suicide note, she pointed out that
B   she had taken tuitions from the accused, Amit, at her residence
    in Rajgarh Colony and during that period had developed a deep
    friendship with him leadiflg to physical relations as well. He also
    held out a promise of marriage but later backed off and when
    she remonstrated with him and reminded him of his promise
C   he threatened to expos~ and defame her in case she insisted
    on meeting him. She sta~ed in the suicide note that the accused
    continued to h<!Ve sexu~I relations with her but also compelled
    her to have sexual relations with others as well. Frustrated ;:ind
    feeling exploited, Sunit~ thus committed suicide.
                             I
D         2.2 The learned Additional Sessions Judge, Karkardooma
    Courts, Delhi, by his judgment dated 21st April, 2008, relying
    primarily on the dying declaration which was the suicide note,
    convicted the accused under Section 306 of the IPC and
    sentenced him to rigorous imprisonment for 10 years with a fine
E   of Rs.5,000/- and in default of payment of fine, to undergo
    rigorous imprisonment for six months in addition, and to
    imprisonment for life. under Section 376 of the IPC and a fine
    of Rs.5000/- and in default, to undergo rigorous imprisonment
    for six months; both the sentences to run concurrently.
F        2.3 An appeal was thereafter taken by the accused to the
    High Court. The High Court vide the impugned judgment held
    that a case under Section 306 was not made out and the
    accused was entitled to acquittal under that provision but on
    the question of the offence under Section 376 observed as
G   under:
          "We note that Sunita was aged 21 years and the appellant
          was aged 20 years when they indulged in a promiscuous
          relationship.
H
  NATIONAL COMMISSION OF WOMEN v. STATE OF                    909
                DELHI & ANR.
          I

     At the age of 21, Sunita was matured enough to                  A
     understand the moral worth of her acts. She was conscious
     that by having repeated sex with the appellant she could
     become pregnant and hence the appellant had told her to
     take Mala-D tablets.
                                                                     B
     There is some piirticipative act committed by Sunita. It is
     not a case whe~e the appellant forced herself on Sunita.
     There is no evidence that the appellant compelled Sunita
     to have sex with the other person. We note that the Sunita
     has only written that the appellant was compelling her to       C
     have sex with a third person. She has not1written that she
     was actually made to have sex with a third person.

     Considering the totality of the circumstances and noting
     that the appellant has suffered incarceration for five years
     and six months and would be entitled to remissions on           D
     account of his good conduct in jail; noting further that the
     appellant has redeemed himself in jail evidenced by the
     fact that he took his civil services examinations and
     qualified for being appointed to the Indian Administrative
     Services; we are of the opinion that the custodial sentence     E
     already suffered by the appellant would meet the ends of
     justice as a requisite punishment."

      2.4 An order reducing the term of imprisonment for life to
 that already undergone was, accordingly, made.
                                                                     F
      3. The present Special Leave Petition has been filed by
 the National Commission for Women and the only plea raised
 is that the reasons given by the High Court for reducing the
·sentence awarded under Section 376 of the IPC were not
 acceptable as a helpless girl had been cruelly exploited and        G
 cheated by the accused. This matter came up for motion
 hearing before a Bench of this Court and permission to file
 Dthe Special Leave Petition was granted and notice was
 issued on 2nd April 2009. Respondent No.1, that is the State
 of Delhi, has filed a counter affidavit, in effect supporting the   H
    910      SUPREME COURT REPORTS                [2010] 10 S.C.R.


A   case of the Commission although it has been conveyed to us
    by the learned Additional Solicitor General that the State does
    not propose to file an application for leave to appeal against
    the impugned judgment. The accused has also been served by
    publication but has not chosen to appear in response thereto.
B
        4. Ms. Priya Hingorani, the learned counsel for the
  petitioner, has forcefully argued that notwithstanding the fact that
  the State had not filed an appeal in the present matter an appeal
  at the instance of the Commission was maintainable under the
C inherent powers of this Court more particularly, as leave to file
  the Special Leave Petition had already been granted by order
  dated 2nd April, 2009. It has, accordingly, being submitted that
  it was not now open to this Court to retract on the earlier order
  and revoke the permission and to doubt the very maintainability
  of the Special Leave Petition. On merits, it has been submitted
D that the discretion exercised by the High Court while reducing
  the sentence for the offence under Section 376 of the IPC was
  not called for and merely because the accused had, in the
  meanwhile, cleared the Indian Administrative Services
  Examination was not a relevant consideration. We are unable
E to accept the plea raised by the learned counsel.

       5. Chapter XXIX of the Code of Criminal Procedure deals
  with "Appeal"{s). Section 372 specifically provides that no
  appeal shall lie from a judgment or order of a Criminal Court
F except as provided by the Code or by any other law which
  authorizes an appeal. The proviso inserted by Section 372 (Act
  5 of 2009) w.e.f. 31_~! December, 2009, gives a limited right to
  the victim to file an appeal in the High Court against any order
  of a Criminal Court acquitting the accused or convicting him
G for a lesser offence or the imposition of inadequate
  compensation. The proviso may not thus be applicable as it
  came in the year 2009 (long after the present incident) and, in
  any case, would confer a right only on a victim and also does
  not envisage an appeal against an inadequate sentence. An
H appeal would thus be maintainable only under Section 377 to
 NATIONAL COMMISSION OF WOMEN v. STATE OF 911
               DELHI & ANR.
the High Court as it is effectively challenging the quantum of A
sentence. Section 377 is reproduced below:

    "377. Appeal by the State Government agaJnst
    sentence:(1) Save as otherwise provided in sub- section
    (2), the State Government may, in any case of conviction
                                                                     8
    on a trial held by any Court other than a High Court, direct
    the Public Prosecutor to present an appeal against the
    sentence on the ground of its inadequacy-

    (a) to the Court of session, if the sentence is passed by
the Magistrate; and                                           C

    (b) to the High Court, if the sentence is passed by any other
Court.

    (2) If such conviction is in a case in which the offence has D
    been investigated by the Delhi Special Police
    Establishment, constituted under the Delhi Special Police
    Establishment Act, 1946 (25 of 1946), or by any other
    agency empowered to make investigation into an offence
    under any Central Act other than the Code, [the Central
    Government may also direct] the Public Prosecutor to . E
    present an appeal against the sentence on the ground of
    its inadequacy-

            (a) to the Court of session, if the sentence is passed
            by the Magistrate; and                                   F

    (b) to the High Court, if the sentence is passed by any other
    Court.

    (3) When an appeal has been filed against the sentence
    on the ground of the inadequacy the Court of Session, or, G
    as the case may be, the High Court shall not enhance the
    sentence except after giving to the accused a reasonable
    opportunity of showing cause against such enhancement
    and while showing cause, the accused may plead for his
    acquittal or for the reduction of the sentence."          H
    912       SUPREME COURT REPORTS                [201 OJ 10 S.C.R.


A         6. This Se.ction specifically provides that it is the State
    Government or the Central Government which can issue a
    direction to the Public Prosecutor to present an appeal before
    the Court of Session or the High Court on the ground of
    inadequacy of the sentence. This Section does not in any
B   manner authorize an appeal to the Supreme Court. We are,
    therefore, unable to comprehend as to how the Commission
    was entitled to maintain an appeal in the Supreme Court
    against the order of the High Court. An appeal is a creature of
    a Statute and cannot lie under any inherent power. This Court
c   does undoubtedly grant leave to the appeal under the
    discretionary power conferred under Article 136 of the
    Constitution of India at the behest of the State or an affected
    private individual but to permit anybody or an organization pro-
    bono publico to file an appeal would be a dangerous doctrine
    and would cause utter confusion in the criminal justice system.
0
    We are ,therefore, of the opinion that the Special Leave Petition
    itself was not m;;iintainable.

        7. In Pritam Singh v. State AIR (37) 1950 SC 169 , this
    Court while dealing with a criminal matter (after the grant of
E   leave under Article 136 of the Constitution) considered scope
    and ambit of this Article and observed:

          "9. On a careful examination of Article 136 along with the
          preceding article, it seems clear that the wide discretionary
F         power with which this Court is invested under it is to be
          exercised sparingly and in exceptional cases on1y, and as
          far as possible a more or less uniform standard should be
          adopted in granting special leave in the wide range of
          matters which can come up before it under this article. By
          virtue of this article, we can grant special leave in civil
G
          cases, in criminal cases, in income-tax cases, in cases
          which come up before different kinds of tribunals and in a
          variety of other cases. The only uniform standard which in
          our opinion can be laid down in the circumstances is that
          Court should grant special leave to appeal only in those
H
 NATIONAL COMMISSION OF WOMEN v. STATE OF 913
               DELHI & ANR.

    cases where special circumstances are shown to A
    exist.. ...... It is sufficient for our purpose to say that though
    we are not bound to follow them too rigidly since the
    reasons, constitutional and administrative, which
    sometimes weighed with the Privy Council, need not weigh
    with us, yet some of those principles are useful as B
    furnishing in many cases a sound basis for invoking the
    discretion of this Court in granting special leave. Generally
    speaking, this Court will not grant special leave, unless it
    is shown that exceptional and special circumstances exist,
    that substantial and grave injustice has been done and that         c
    the case in question presents features of sufficient gravity
    to warrant a review of the decision appealed against."

     8. In P.S.R. Sadhanantham v. Arunachalm And Anothe,r
(1980) 3 sec    141., this Court was dealing with the locus standi
of a private person, in this case a victim's brother, who was D
neither a complainant nor a firs.t informant in the criminal case
but had filed a petition under Article 136 of the Constitution of
India. This Court observed· that the strictest vigilance_Jll,t_~S
required to be maintained to prevent the abuse of the process
of the Court, more particularly, in criminal matters, and ordinarily E
a private party other than the complainant, should not be
permitted to file an appeal under Article 136, though the broad
scope of the Article postulated an exception in suitable cases.
It was spelt out as under:-
                                                                        F
     "7. Specificity being essential to legality, let us if the broad
     spectrum spread out of Article 136 fills the bill from the
     point of view of "procedure established by law". In express
    -terms, Article 136 does not confer a right of appeal on a
     party as such but it confers a wide discretionary power on         G
     the Supreme Court to interfere in suitable cases. The
     discretionary dimension is considerable but that relates to
     the power of the court. The question is whether it spells by
     implication, a fair procedure as contemplated by Article 21.
     In our view, it does. Article 136 is a special jurisdiction. It
                                                                        H
    914       SUPREME COURT REPORTS                   [2010] 10 S.C.R.


A        is residuary power; it is extraordinary in its amplitude, its
         limit, when it chases injustice, is the sky itself. This Court
       · functionally fulfils itself by reaching out to injustice wherever ·
         it is and this power is largely derived in the common run
         of cases from Article 136. Is it merely a power in the court
B        to be exercised in any manner it fancies? Is there no
         procedural limitation in the manner of exercise and the
         occasion for exercise? Is there no duty to act fairly while
         hearing a case under Article 136, either in the matter of
         grant of leave or, after such grant, in the final disposal of
c        the appeal? We have hardly any doubt that there is a
         procedure necessarily implicit in the power vested in the
         summit court. It must be remembered that Article 136
         confers jurisdiction on the highest court. The founding
         fathers unarguably intended in the very terms of Article 136
         that it shall be exercised by the highest judges of th land
D
         with scrupulous adheren·ce to judicial principles well
         established by precedents in our jurisprudence. Judicial
         discretion is canalised authority, not arbitrary eccentricity."

    The Court then examined the implications of completely shutting
E   out a private party from filing a petition under Article 136 on
    the locus standi and observed thus:

          "Having said this, we must emphasise that we are living
          in times when many societal pollutants create new
F         problems of unredressed grievance when the State
          becomes the sole repository for initiation o criminal action.
          Sometimes, pachydermic indifference of bureaucratic
          officials, at other times politicisation of higher functionaries
          may result in refusal to take a case to this Court under
          Article 136 even though the justice of lis may well justify it.
G
          While "the criminal law should not be used as a weapon
          in personal vendettas between private individuals", as Lord
          Shawcross once wrote, in the absence of an independent
          prosecution authority easily accessible to every citizen, a
          wider connotation of the expression 'standing' is
H         necessary for Article 136 to further its mission."
 NATIONAL COMMISSION OF WOMEN v. STATE OF 915
               DELHI & ANR.

      9. A reading of the aforesaid excerpts from the two                 A
judgments would reveal that while an appeal by a private
individual can be entertained but it should be done sparingly
and after due vigilance and particularly in a case where the
remedy has been shut out for the victims due to malafides on
the part of the· state functionaries or due to inability of the victims   B
to approach the Court. In the present matter, we find that neither
the State which is the complainanlnor the heirs of the deceased
have chosen to file a petition in the High Court. As this
responsibility has been taken up by the Commission at its own
volition this is clearly not permissible in the light of the aforesaid    c
judgments.

       10. Ms. Priya Hingorani's submission with regard to the
reasons which weighed with the Court while reducing the
sentence must now be d~alt with. Sub-section (1) of 376 of the
IPC provides for the imposition of a sentence of upto ten years D
or life but the proviso says that the Court may for adequate and
special reasons, impose a lesser sentence. We are of the
opinion that the discretion exercised by a Court, particularly a .
superior court, should not be lightly interfered with. We have
quoted from the judgment of the High Court hereinabove and E
find that several factors had been taken into account while
imposing a lesser sentence and it would be improper for us to
interfere in the High Court's discretion on the quantum of
sentence except in extraordinary circumstances. We do not see
any such circumstance. We, accordingly, dismiss the Special F
leave Petition as not maintainable. The permission to file the
Special Leave Petition granted vide this Court's order dated
~nd April, 2009, is, accordingly, revoked.
R.P.                                               SLP dismissed.