Mumbai: Bombay High Court has ordered the release of a 30-year-old man sentenced to around 83 years in jail in 41 cases, observing that any sentences imposed by courts must maintain a proper balance between deterrent and reformative objectives and that it cannot permit “miscarriage of justice”.
Aslam Shaikh has been in jail since December 2014 and convicted for offences pertaining to theft. He is presently lodged at the Yerawada prison in Pune.
All his sentences were to run consecutively as the trial courts had not specified that the sentences would run concurrently with the previous convictions and sentences.
A division bench of Justices Revati Mohite Dere and Gauri Godse in its judgment passed on July 17 on a plea filed by Shaikh said courts exist to do justice and that none of the trial courts considered the sentencing policy of deterrence and reformation.
“The sentencing policy of criminal jurisprudence mandates courts to pass such sentences as would meet its primary twin objects of deterrence and re-formation,” the high court said.
The deterrent effect of a sentence is to prevent the commission of a similar offence by the convict, it added.
“The sentence of imprisonment should also have a reformative aim, in as much as it should not demoralise the offender and in fact, the offender should be given an opportunity depending on the nature of the offence to improve himself,” the HC said.
“Thus, any sentence imposed by any courts must maintain a proper balance between the deterrent and reformative objects of a sentencing policy and must ensure that the said object is sufficiently met,” it said.
Shaikh in his plea filed through jail had sought for the imprisonment sentences imposed on him by different courts in 41 cases run concurrently.
Shaikh has been convicted of imprisonment ranging from six months to three years in the cases.
The high court noted that if Shaikh has to undergo imprisonment in all the cases consecutively then he would be compelled to undergo imprisonment of around 83 years and since he is not in a position to pay the fine imposed, he would be required to undergo imprisonment of further ten years.
The bench noted that this would mean a total of 93 years – “Shaikh’s entire life, with no hope whatsoever to even come out of jail”.
“This is a sentence, more than what a life convict would have to undergo for murder. If permitted, this would certainly lead to the travesty of justice. Being alive to this reality, we cannot permit this miscarriage of justice,” the HC said.
The high court quoted Earl Warren, former Chief Justice of the United States of America, “It is the spirit and not the form of law that keeps justice alive” and author William Scott Downey, “Law without justice is a wound without a cure”.
It added that there would be a serious miscarriage of justice if it failed to interfere and exercise its discretion.
“Courts exist to do justice, and this is one such case that begs our interference,” the high court said.
The bench said it deems it appropriate to “put right the clock, to prevent miscarriage of justice, failing which the petitioner (Shaikh) would remain incarcerated for more than 90 years, in 41 cases for committing theft, with no prospect of coming out of jail anytime in the future”.
The court noted that the actual period of imprisonment undergone by the petitioner is more than nine years and ordered for Shaikh to be released in all 41 cases considering the time he has spent in jail as an undergone sentence.
Shaikh in his plea claimed that he is an illiterate who pleaded guilty in all 41 cases under a belief that he would be released from prison for the period already undergone in jail.
The bench in its order noted that the facts of the case warrant the court to do justice.
“This is a glaring case warranting interference of this Court, as a protector of the fundamental right to life and personal liberty, lest there would be a serious miscarriage of justice,” the HC said.
The high court in its order noted that under provisions of the Criminal Procedure Code when a person undergoing imprisonment in a case is sentenced to imprisonment in another case then the second sentencing shall commence after the expiration of the first conviction unless the concerned court directs that both the sentences shall run concurrently.
“Thus, it is evident that the court has the power and discretion to issue a direction that all subsequent sentences run concurrently with the previous sentence,” the court said adding in the present case, in none of the convictions there is a specific direction by the court that the sentences shall run concurrently.
The bench noted that Shaikh at the time of his arrest was only 21 years old and was not defended by any advocate in any of the cases and was not offered legal aid too by the trial courts.
The HC said Shaikh had sought all the trial courts to show him leniency as he belonged to a poor family and his family was dependent on him.
