Balwinder Singh Singh v. CORAM
Case Details
IN THE THE HIGH COURT OF PUNJAB CHANDIGARH AT CHANDIGARH PUNJAB & HARYANA 112 2590-2025(O&M) CRR-2590 Date of decision: decision: 14.11.2025 Balwinder Singh Singh ...Petitioner State of Punjab ...Respondent VERSUS CORAM : HON'BLE HON'BLE MR. JUSTICE VINOD VINOD S. BHARDWAJ Present :- Mr. Mr. Umesh Kumar Kanwar, Advocate, Advocate, for the petitioner. Ms. SaviNagpal, AAG, Punjab. Ms. ***** VINOD S. BHARDWAJ BHARDWAJ, J. (Oral) The present revision petition has The been preferred against the judgment dated 20.12.2018 passed in case No.CHI/130/2017 No.CHI/130/2017 by the Chief Judicial Magistrate, Magistrate, Fazilka, whereby the petitioner petitioner had been convicted for commission of offence offence under Section 465, 468 and 471 of the Indian Penal Code, 1860 and sentenced vide order dated 20.12.2018 20.12.2018 as under:- Accused Balwinder Balwinder Singh Sr. No. Offence Sentence Fine Imprisonment in default of fine Imprisonment 1 2 3 465 IPC RI 2 years 500/- RI 10 10 days 468 IPC RI 2 years 1000/- RI 15 15 days 471 IPC RI 2 years 500/- RI 10 10 days 2. Challenge further is to the judgment Challenge judgment dated 16.09.2025 passed in Criminal Appeal Appeal No.28 of 2019 by the Additional Additional Sessions Judge, Fazilka, whereby the appeal appeal preferred by the petitioner against the said judgment of conviction and order order of sentence had been dismissed. ismissed. 3. Briefly summarised, the facts of the Briefly the present case are that on 17.08.2016, SI Lekh Lekh Raj of the Recruitment/Bharti Recruitment/Bharti Cell, Fazilka, vide letter No. 209 dated 17.08.2016, informed Police Station Station City Fazilka that the SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 2 recruitment process process for the post of Constable Constable was underway at the Multipurpose Sports Sports Stadium, Fazilka, from 27.07.2016, 27.07.2016, wherein physical tests were being being conducted. On 17.08.2016, the the petitioner, Balwinder Singh son of Tara Singh, Singh, appeared with an admit card card bearing Roll No. 8219844 and Registration Registration No. 204458079. Upon suspicion suspicion that he had earlier participated in the the selection process, the records records were verified, revealing that the petitioner had had also appeared earlier under Roll Roll No. 8110167 under the name of Baljinder Baljinder Singh son of Tara Singh. He had participated in the trials on 27.07.2016 in in Batch No. 8, wherein he failed failed to qualify the 1600-metre race and was declared declared unfit. It thus emerged that that the petitioner had filled two separate online forms, forms, one by filling details as Balwinder Balwinder Singh and another in the name as Baljinder Baljinder Singh, to secure two different different roll numbers and had thus attempted to re-appear in the selection process process despite failing in the earlier trial. On On the basis of these allegations,
Legal Reasoning
an FIR under Sections 420, 465, 468 and 471 471 of the Indian Penal Code, 1860, 1860, was registered against the petitioner. 4. The matter was investigated, statements The statements of witnesses were recorded, documents documents collected, whereafter final final report was filed. Copies of the challan and documents documents were duly supplied to to the petitioner. 5. To prove its case, the prosecution led led as many as 06 witnesses. The details of the the witnesses as well as the documents documents exhibited by them is tabulated as under: under:- Sr. No. Prosecution Witnesses Prosecution Documents Exhibited SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 1. PW- -1 SI Lekh Raj 3 (Ex.P2) Computer Computer record of Baljinder Singh (Ex.P1) (Ex.P1) Admit Admit Card under the name of Balwinder Singh Admit Admit Card under the name of Baljinder Singh (Ex.P3) Application Application Forms respectively) respectively) Result Sheet (Ex. P6) (Ex.P4 and P5 Result 2. 3. 4. 5. 6. PW- -2 ASI Karnail Singh -- PW- -3 HC Harbans Singh Arrest Personal Arrest Memo (Ex.P3/A) Personal Search Memo (Ex.P3/B) Intimation memo (Ex.P3/C) Intimation PW- -4 Hari Singh Snap on both the applications (Ex.P4/A P4/B) and P4/B) PW- -5 ASI Lekh Raj --- PW- -6 ASI Tilak Raj FIR (Ex.P6/A) (Ex.P6/A) Site Plan Plan (Ex.P6/B) Notice Notice issued to accused (Ex.P6/C) 6. After the conclusion of the prosecution After prosecution evidence, the statement of the petitioner petitioner was recorded under Section 313of 313of the Code of Criminal Procedure, wherein wherein all incriminating circumstancesand circumstancesand evidence on record were put to him. him. The petitioner denied the allegations allegations in their entirety, described the prosecution prosecution case and evidence asfalse and fabricated, and asserted his innocence. innocence. He however did not examine examine any witness in defence. 7. After considering the arguments After advanced, the testimonies ofwitnesses and and the evidence placed on record, record, the Chief Judicial Magistrate, Fazilka Fazilka convicted the petitioner of commission of the offences under Sections 465, 465, 468 and 471 of the Indian Indian Penal Code, 1860 while he was discharged for for offence under Section 420 Indian Indian Penal Code, 1860. 8. Aggrieved of the same, the petitioner Aggrieved petitioner preferred an appeal before SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 4 the Court of Sessions Sessions Judge, Fazilka bearing Criminal Appeal No.28 of 2019. The said appeal was dismissed by the Additional Sessions Judge, Fazilka vide judgment judgment dated 16.09.2025. Hence, Hence, the instant revision petition. 9. Learned counsel appearing for the Learned the petitioner has vehemently contended that the the petitioner never appeared in any subsequent physical test and had participated participated only in the test conducted on on 27.07.2016. It is submitted that the signatures signatures appearing in the attendance attendance register dated 17.08.2016 pertain to one ‘ ‘Baljinder Singh’, and the same same cannot, by any stretch, be attributed to the the petitioner Balwinder Singh, who had appeared only on 27.07.2016. It is argued that the identity of the person, who presented himself under the roll number used on 17.08.2016 17.08.2016, has neither been established nor linked linked to the petitioner, and therefore therefore the benefit of the same ought to be given given to the petitioner. The second argument advanced was that in the event the the Court does not find merit in the the contention raised by the petitioner, the sentence sentence awarded to the petitioner petitioner be reduced considering that the petitioner is not involved in any other case and and he has faced the criminal prosecution for a period of nearly 09 years. Besides, Besides, the petitioner was a young boy at the the relevant point of time and while while being keen on securing a public employment employment for himself may have, out out of anxiety, taken the step. There was no intention of taking away anyone anyone else‘s right in the said process. 10. State counsel, on the other hand, contends State contends that both the Courts have examined the evidence brought on record and concurrently recorded a finding of conviction conviction against the petitioner. In a revisional jurisdiction, neither new line line of defence can be adopted nor nor any reappreciation of the SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 5 evidence can be be undertaken. There is no illegality illegality or perversity that has been pointed out by the the petitioner, hence, there is no no occasion that would call for upsetting the findings findings recorded or the sentence awarded awarded and affirmed by the Courts. 11. I have have heard learned counsel appearing appearing on behalf of the respective parties parties and have gone through the judgments judgments passed by the Courts as well as the do documents appended along with the the present petition. 12. Insofar as the petitioner‘s submission Insofar submission that the prosecution failed to establish establish that he had in fact appeared under under the second roll number is concerned, this contention is clearly an an afterthought and stands contradicted by the record. A perusal of the judgment judgment of the Trial Court reveals that the the specific defence taken by the petitioner through his suggestions that that he himself had filled both application application forms and had duly signed them. It is also the case set up in defence defence that since in one of the application forms, forms, the name was wrongly entered entered as Baljinder Singh instead of Balwinder Singh, Singh, hence, he filled the second form as well and that he had signed both the application forms as Balwinder Balwinder Singh. Hence, it is not even the petitioner‘s case case that he did not fill up the forms forms as Baljinder Singh. This factual position is further fortified by the record, record, which clearly shows that the photographs photographs affixed on both forms are identical, identical, and each form bears the petitioner‘s signature signature as Balwinder Singh and is is accompanied by the same supporting certificates. certificates.Besides, on the earlier occasion, a candidate had appeared and parti participated in the selection process. process. There was no occasion for any other person person to participate in the same same as the other person would have the roll number number and the specific details. No No reference is made to the SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 6 evidence to show show that such a suggestion was made made to the witnesses or such defence was raised raised in 313 Cr.P.C. statement that the petitioner had not appeared in the the first test. Besides, had the petitioner petitioner not appeared earlier, there would have have been no cause of suspicion at all. all.The argument now sought to be advanced by the petitioner was never part part of his defence during trial. Having not disputed disputed his appearance in the selection selection process either in the suggestion put to to the prosecution witnesses or in in his statement under Section 313 Cr.P.C., such such a line of defence cannot be permitted to be taken at the stage of the revisional revisional jurisdiction. It is thus evident evident that the petitioner is attempting to introduce introduce an entirely new defence defence at this belated stage, one that was never asserted asserted before the Trial Court, and such a course is legally impermissible. 13. It would would also be apposite to advert advert to the findings recorded by the learned Additional Additional Sessions Judge, Fazilka while dismissing the appeal. The same are extracted extracted as under:- ”16. 16. The first arguments raised raised by learned counsel for the accused is that the documents documents ie. two online applications were not filled by the accused but were were were got filled by some other person from a cyber café who made person made typographical mistake in the first form due to which second form was filled. It is prayed that hence there is no forgery committed that committed by the accused. It is further argued that the admit cards further cards were issued by the department and roll number was also department also issued by the department which shows that the accused had which had no role in the same and hence, cannot be held responsible hence, responsible for creation of fake/forged documents. However, both the above documents. above said arguments of learned counsel for accused are bereft of counsel any merit. The accused has miserable failed to prove that he had miserable had filled online forms with the SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 7 help of some person at a cyber cafe. help cafe. The form Ex.P2 in the name of Balwinder Singh (also as name as Ex.P4/A and Ex.P3 in the name of Baljinder Singh (also name as Ex.P4/B) contains the uploaded signatures of the accused. uploaded accused. The accused has no where denied his signatures on these applications denied applications forms as is clear from the cross-examination of PWs from PWs and the stand taken by the accused in his statement under Section accused Section 313 Cr.P.C. Once the application forms both in the names application names of Balwinder Singh and Baljinder Singh contains signatures Baljinder signatures of accused which are not disputed, the only reasonable conclusion disputed, conclusion is that the forms were filled by the accused. Moreover, the filled the accused filled the form for the post of Constable which means that he signed the same after reading the contents. Apart from reading the bald averments of the accused, there is nothing on file accused, file to show that these online application forms were not filled by application by the accused but by some other person. Once the forms contains other contains the signatures of the accused, the prosecution is not required accused, required to prove I.P. address as to establish establish from where the said forms forms were uploaded. 17. The next contention is that the admit card Ex.P1/5 having roll number 8219844 and admit having admit card Ex.P3 having roll number 8110167 in the name of Balwinder number Balwinder Singh and Baljinder Singh respectively have been issued Singh issued by the department but the same stands done on the basis of online same online applications submitted by the accused. Thus, it is the accused accused who submitted false applications with false particulars application resulting in creation of two provisional admit cards in favour provisional favour of the accused having his photographs but with different names photographs names ie. Balwinder Singh and Baljinder Singh. Therefore, merely Baljinder merely because the department issued admit cards or allotted the roll issued roll numbers is not a ground for the accused to escape his liability liability and the role played by him to generate these documents. him 18. Another point raised is that the presence of the accused is not proved on the date of accused of the test and he only came SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 8 to the the ground and did not use the the roll number/admit card. However, from the testimonies of PW1 However, PW1 and PWS, it is clear that the accused had also appeared on 27.07.2016 for the physical test and had failed in 1600 meter race. test race. The fact that the accused came again on 17.08.2016 with another came another admit card and roll number in the test ground is in itself number itself sufficient to prove that the accused had used the roll number/admit accused number/admit card and wanted to appear for the test again. PW1 has appear has clearly stated that when during the process of physical test, during due to suspicion, the record of accused accused was checked and it was was found that he had already appeared for the exams of physical appeared physical test on previous date with some other roll number/admit card. some card. Hence, before the accused could cheat the recruitment cell, he could was caught. As such, the Ld. Trial Court has rightly concluded Trial that the offence of cheating was not completed. However, the culpability was culpability of the accused for offence u/s 465, 468 and 471 IPC offence IPC is duly established on the ground in view of the discussion above ground above and herein. The result sheet of physical test on 27.07.2016 sheet 27.07.2016 is also proved on the file as Ex.P1/1 and the list Ex.P1/2 also shows Ex.P1/1 shows that accused Baljinder Singh had appeared on 17.08.2016 Singh 17.08.2016 also. The list Ex.P1/3 contains the test that Baljinder contains Singh having roll number 8219844 failed in the test. All these 8219844 these documents are sufficient to prove the presence of accused on 27.07.2016 prove 27.07.2016 and mere absence of attendance attendance sheet is not fatal to the case of the prosecution. No doubt, in the case at hand, the FIR was registered on 20.08.2016, whereas the incident 20.08.2016, incident is of 17.08.2016 but the complaint by PW1 is dated 17.08.2016 complaint 17.08.2016 and since the offence took place during the recruitment took recruitment process, the necessary channels had to forward the complaint channels complaint for processing. Hence, the delay of registration of FIR i.e. e. after 3 days is not fatal in
Legal Reasoning
this case. The contention that the fact this fact that the accused was not arrested on the same day ie.on 17.08.2016 arrested 17.08.2016 raised doubt against the veracity of the claim of the prosecution is not tenable SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 9 because at that time, the officials were because were on duty for recruitment people. process and were not to arrest the people. process 19. Coming to the judgment judgment of the Trial Court, perusal of the the same shows that the Court Court has passed detailed and reasoned order duly appreciating reasoned the entire evidence brought on the file and meeting the arguments/contentions arguments/contentions raised by both sides. The learned Trial Court both Court has rightly concluded that it was the accused who had filed was online applications by two different names i.e. Baljinder Singh different Singh and Balwinder Singh and mere both mere the forms contains signatures of the name "Balwinder Singh" does not mean that "Balwinder that there was any absence of intent or mensrea on the part of accused. intent accused. Mensrea and intent is apparent from the fact that the accused apparent accused has come to appear for the second time in the physical test test despite having failed the first attempt and on the basis of two first two online application forms by the accused under different names, names, two admit card and roll numbers were generated. Hence, the numbers the accused is liable for the offence of forgery and preparation offence preparation of forged document i.e. under Section 465 IPC. The accused under accused also used the said forged documents when he reported in the documents the ground for the physical test second day. Hence, he used the forged second forged document as genuine. As such, offence under Section 471 IPC such, IPC is also duly made out. No doubt the Ld. Trial Court has held doubt held that the offence of cheating was completed but the fact that the was the accused filled two online forms out of which one was with the forms the wrong name to obtain the forged admit card for purpose of ch forged cheating, as such the offence u/s 468 IPC is made out. 20. Accordingly, the appellant/accused appellant/accused has failed to show 20. any ground to interfere in show in the findings of the Ld. Trial Court. The impugned judgment upheld. Court. upheld. The appeal of the appellant/accused is dismissed. The appellant/accused The accused is taken into custody and his custody warrants be custody be issued so as to make him undergo the sentence imposed by undergo by the Ld. Trial Court vide SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 10 judgment dated 20.12.2018. Record judgment Record of Ld. Trial Court be returned along with copy of this judgment. returned judgment. File be consigned to the record room.” 14. It is is evident from the perusal of the the same that insofar as the substantive arguments arguments that were raised by the the petitioner before both the Courts is concerned concerned (which such argument has has not been raised here), the same were dealt alt with by reference to the specific evidence and the conclusions were were drawn on the basis thereof. Said conclusions cannot be said to be perverse perverse or not sustainable on an objective objective reading of the evidence adduced by the the prosecution to establish its its case. While sitting in a revisionaljurisdiction, jurisdiction, the High Court would not not ordinarily substitute the findings recorded recorded by the Courts below for an an opinion of its own. If the findings recorde recorded are sustainable and plausible, plausible, on a meaningful reading of the evidence, the upheld. the same would ordinarily be upheld. 15. In view view of the above, the challenge challenge to the conviction of the petitioner is dismissed dismissed and the judgments recorded recorded by both the Courts are hereby affirmed. affirmed. 16. The same thus leads next to the question The question of quantum of sentence imposed upon the the petitioner. 17. Counsel for the petitioner has argued Counsel argued for claiming the benefit of probation contending contending that the petitioner is not involved involved in any other criminal case. He has already already undergone the agony of a a protracted criminal trial for nearly nine years years and is now married with two ch children dependent upon him Sending him to custody custody would have a devastating devastating impact on his family. 18. State Counsel has, however, opposed State opposed the prayer for grant of SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 11 probation and contended that the conduct of of the petitioner reflects an orchestrated attempt attempt to subvert a fair and competitive competitive recruitment process by filing two separate separate application forms under different different names, thereby seeking to take an undue undue advantage and deprive other meritorious meritorious candidates of their rightful opportunity. opportunity. Such conductcannot be viewed as a mere error of judgment. 19. The State Counsel, however, does not The not dispute that the petitioner is not involved in in any other criminal case and has has undergone about 3 months of actual custody years. custody out of the total sentence of 2 years. 20. I have have heard learned counsel for the the respective parties on the quantum of sentence sentence as well. 21. The Hon'ble Supreme Court has laid The laid down certain principles to govern the Courts Courts in the matter of sentencing. sentencing. Reference in this regard is made to the judgment judgment of the Hon'ble Supreme Court Court in the matter of State of Punjab Vs. Prem Prem Sagar & Ors reported as (2008) (2008) 7 SCC 550. The relevant paragraphs are extracted extracted as follows:- “5. Whether Whether the Court while awarding awarding a sentence would take recourse to the principle of deterrence recourse deterrence or reform or invoke the doctrine of proportionality, would doctrine would no doubt depend upon the facts and circumstances of each case. facts case. While doing so, however, the nature of the offence said to have have been committed by the accused plays an important role. accused role. The offences which affect public health must be dealt with severely. public severely. For the said purpose, the courts must notice the object for for enacting Article 47 of the Constitution of India. Constitution 6. There There are certain offences which tou touch our social fabric. We must remind ourselves that even while must while introducing the doctrine SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 12 of plea plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept types out of the purview thereof. While imposing sentences, the said While said principles should be borne mind. in mind. 7. A sentence sentence is a judgment on conviction conviction of a crime. It is resorted to after after a person is convicted of the the offence. It is the ultimate goal of any justice-delivery system. goal system. Parliament, however, in providing for a hearing on sentence providing sentence, as would appear from sub- section (2) of Section 235, sub-section section section (2) of Section 248, Section 325 as also Sections 360 Section 360 and 361 of the Code of Criminal Procedure, has laid down Criminal down certain principles. The said provisions lay down the principle that provisions that the court in awarding the sentence must take into consideration sentence consideration a large number of relevant factors; sociological backdrop relevant backdrop of the accused being one of them. one 8. Although Although a wide discretion has been been conferred upon the court, the same must be exercised judiciously. judiciously. It would depend upon the circumstances in which the crime crime has been committed and his mental state. Age of the accused accused is also relevant. 9. What What would be the effect of the sentencing sentencing on the society is a question which has been left unanswered question unanswered by the legislature. The superior courts have come across superior across a large number of cases which go to show anomalies as regards which regards the policy of sentencing. Whereas the quantum of punishment Whereas punishment for commission of a similar type of offence varies from similar minimum to maximum, even where same sentence is imposed, where imposed, the principles applied are found to be different. Similar discrepancies found discrepancies have been noticed in regard regard to imposition of fine. 10. In Dhananjoy Dhananjoy Chatterjee v. State of of W.B. [(1994) 2 SCC 220: 1994 SCC (Cri) 358] this Court held 1994 held : (SCC p. 239, para 15): “15. … Imposition of appropriate appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. criminals. Justice demands that SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 13 courts should impose punishment punishment befitting the crime so that the courts reflect public abhorrence abhorrence of the crime.” Xxxxx 12. In a recent decision in Shailesh Shailesh Jasvantbhai v. State of Gujarat ujarat [(2006) 2 SCC 359 : (2006) (2006) 1 SCC (Cri) 499] this Court opined : (SCC pp. 361-62, para Court para 7) “7. The law regulates social interests, interests, arbitrates conflicting claims and demands. Security of persons claims persons and property of the people is an essential function of the people the State. It could be achieved through instrumentality of criminal through criminal law. Undoubtedly, there is a cross-cultural conflict where living cross living law must find answer to the new challenges and the courts are new are required to mould the sentencing system to meet the challenges. sentencing challenges. The contagion of lawlessness would undermine social lawlessness social order and lay it in ruins. Protection of society and stamping Protection stamping out criminal proclivity must be the object of law which must must be achieved by imposing appropriate sentence. Therefore, law appropriate law as a cornerstone of the edifice of ‘order’ should meet the edifice the challenges confronting the society. Friedman in his Law in Changing society. Changing Society stated that: ‘State of criminal law continues ‘State to be—as it should be—a decisive reflection of social consciousness decisive consciousness of society.’ Therefore, in operating the entencing Therefore, entencing system, law should adopt the corrective machinery or deterrence deterrence based on factual matrix. By deft deft modulation, sentencing process process be stern where it should be, and tempered with mercy where where it warrants to be. The facts and given circumstances in each case, and case, the nature of the crime, the manner in which it was planned planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other nature other attending circumstances are relevant facts which would would enter into the area of consideration.” consideration.” SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 14 Relying upon the decision of this Court Relying Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471 State : 1991 SCC (Cri) 724] this Court furthermore held that it was Court was the duty of every court to award proper sentence having regard award regard to the nature of the offence and the manner in which it offence it was executed or committed, etc. etc. xxx 18. Don Don M. Gottfredson in his essay on on “Sentencing Guidelines” in Sentencing by Hyman Gross and Andrew Sentencing Andrew von Hirsch opines: “It is a common claim in the literature literature of criminal justice and indeed in the popular press that indeed that there is considerable ‘disparity’ in sentencing. The word ‘disparity’ word ‘disparity’ has become a prerogative and the concept of prerogative ‘sentencing disparity’ now carries with it the connotation of biased carries biased or insidious practices on the part of the judges. This is is unfortunate in that much otherwise valid criticism has failed otherwise failed to separate justified variation from the unjustified variation variati variation referred to as disparity. The phrase ‘unwarranted disparity’ The disparity’ may be preferred; not all sentencing variation should be considered sentencing considered unwarranted or disparate. Much of it properly reflects disparate. reflects varying degrees of seriousness in the offense and/or varying seriousness varying characteristics of the offender. Dispositional variation that offender. that is based upon permissible, rationally rationally relevant and understandably understandably distinctive characteristics of the offender and characteristics of the offense may be wholly justified, beneficial and proper, so long justified, long as the variable qualities are carefully monitored for consistency consistency and desirability over time. Moreover, since no two time. offenses or offenders are identical, the labeling of variation identical, variation as disparity necessarily involves a value judgment, that is, involves disparity to one person may be simply justified variation to another. another. It is only when such variation takes the form of differing variation differing sentences for similar SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 15 offenders committing similar offenses offenders offenses that it can be considered disparate.” disparate.” The learned learned author further opines: “In many jurisdictions, judicial discretion “In discretion is nearly unlimited as (emphasis supplied) to whether whether or not to incarcerate an individual; and bound only by statutory statutory maxima, leaving a broad broad range of discretion, as to the length of sentence.” 19. Kevin Kevin R. Reitz in Encyclopædia of Crime Crime and Justice, 2nd Edn., “Sentencing Guidelines” states: “Sentencing “All guideline jurisdictions have found “All found it necessary to create rules that identify the factual issues rules issues at sentencing that must be resolved under the guidelines, resolved those that are potentially relevant to a sentencing decision, relevant decision, and those viewed as forbidden considerations that may forbidden not be taken into account by sentencing courts. One heated sentencing heated controversy, addressed differently across differently jurisdictions, is whether the guideline sentence should be based exclusively sentence exclusively on crimes for which offenders have been convicted (conviction offenders (conviction offenses), or whether a guideline guideline sentence should also also reflect additional alleged criminal conduct for which formal criminal formal convictions have not been obtained (non-conviction offenses). obtained Another difficult issue of fact finding Another finding at sentence for guideline designers has been the degree to which designers which trial Judges should be permitted to consider the personal permitted personal characteristics of offenders as mitigating mitigating factors when imposing imposing sentence. For example : Is the defendant a single parent with young children at home? Is the defendant a drug addict but a good candidate for drug treatment? Has the defendant struggled treatment? struggled to overcome conditions of economic, economic, social or educational educational deprivation prior to the offense? Was the defendant's criminal offense? criminal behavior explicable in part by youth, inexperience, or an part an unformed ability to resist peer pressure? Most guideline States, peer States, once again including all SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 16 jurisdictions with voluntary guidelines, jurisdictions guidelines, allow trial court's latitude titude to sentence outside of the guideline guideline ranges based on the Judge's assessment of such offender Judge's offender characteristics. Some States, States, fearing that race or class class disparities might be exacerbated by unguided consideration exacerbated consideration of such factors, have placed limits on the list of eligible placed eligible concerns. [However, such factors may indirectly affect the factors sentence, since Judges are permitted to base departures on permitted on the offender's particular 1997).]” ‘amenability’ to probation (Frase, 1997).]” ‘amenability’ 20. Andrew Andrew von Hirsch and Nils Jareborg Jareborg have divided the process of determining sentence into stages of determining proportionality while determining a proportionality a sentence, namely: 1. What interests are violated or threatened by the standard case of the crime—physical integrity, integrity, material support and amenity, freedom from humiliation, humiliation, privacy and autonomy. 2. Effect of violating those interests interests on the living standards of a typical victim—minimum wellbeing, wellbeing, adequate well- enhancement. being, significant enhancement. 3. Culpability of the offender. 4. Remoteness of the actual harm harm as seen by a reasonable man. (See Andrew Ashworth : Sentencing Sentencing and Criminal Justice, 2005, 4th Edn.)” 22. The purpose of sentencing being The being both deterrent as well as reformative, hence, hence, while sentencing of an an accused factors, such as psychological and and sociological circumstances of an accused; the gravity, nature and manner manner of committing the offence; the consequences, the social reaction of the offence; offence; the antecedents and tendencies tendencies of an accused should consideration. be taken into consideration. SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 23. CRR-2590-2025(O&M) CRR 17 I find find some force in the submissions submissions made by counsel for the petitioner for considering considering his case sympathetically sympathetically on the quantum of punishment in view view of the facts of the case and position position in law as above. The relevant factors may be culled out as under:- (i) The petitioner was nearly 27 years years of age as on the date when when the offence in question question was committed. Being unemployed,he might just be desperate unemployed, desperate for seeking a public appointment. appointment. (ii) There is no record of the petitioner petitioner having been involved in any other similar criminal offence, any offence, either prior to or during the pendency or after the conclusion of pendency of the present case, indicating that the petitioner has reformed that reformed himself and successfully reintegrated into the mainstream of reintegrated of society. (iii) The petitioner has faced rigors (iii) of criminal trial for a period of nearly nearly 09 years. (iv) The petitioner is now married (iv) and has two young children who are entirely dependent upon who upon him. Continued rigour of criminal proceedings and incarceration criminal incarceration would gravely impede his ability to provide for and raise his his children, thereby causing dependants. undue hardship to innocent dependants. undue (v) There is nothing on record to to suggest any probability of reoffending. reoffending. 24. It appears appears that the conduct constituting constituting the offence was not the product of any inherent criminal propensity, but but instead stemmed from an ill-conceived anxiety anxiety and over-zealousness to secure secure public employment. In SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document 112 CRR-2590-2025(O&M) CRR 18 the considered view view of this Court, the ends of justice would be adequately met in the peculiar peculiar facts of the present case by by extending some degree of leniency. latitude and leniency. 25. In view view of the aforesaid, the present present appeal is partly allowed. The sentence imposed imposed upon the petitioner vide vide judgment dated 20.12.2018 passed in case No.CHI/130/2017 No.CHI/130/2017 by the Chief Judicial Magistrate, Fazilka, for commission commission of offence under Section 465, 465, 468 and 471 of the Indian Penal Code, 1860 1860 is ordered to be reduced to the the period already undergone. 26. Pending application(s), if any, shall Pending
Decision
shall stand disposed of. 14.11.2025 SumitGusain speaking/reasoned : Whether speaking/reasoned : reportable Whether reportable Yes/No Yes/No (VINOD S. BHARDWAJ) (VINOD JUDGE SUMIT SINGH GUSAIN 2025.11.21 20:32 I attest to the accuracy and integrity of this document