Suspension of sentence order by Sessions Judge at night time at his...

Suspension of sentence order by Sessions Judge at night time at his residence – Memoirs

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This was a trivial and insignificant matter from professional and legal angle. However, the thrill, pleasure, satisfaction and a sense of achievement imbibed therein makes it memorable for me.

In April, 1970 it was a Saturday evening customarily kept free by the lawyers for the family. I was planning and discussing about it with my wife and two kids aged five and three years.

That was not to be. At about 07:00 P.M. my friend Pandit Liladhar Sharma, Advocate dropped in with grave anxiety on his face and with a client Gokul in tears. He was a village grocer of moderate means and was running a shop at Chandrawatiganj (Railway Station, Fatehbad), Tahsil Sanwer, District Indore with his father Sardarmal and son Raju. A sample of turmeric powder (haldi) was collected from this shop by the Food Inspector years ago which was found to contain 0.2% (7.2%) ash in excess of the standard prescribed (7%). This led to prosecution of his father Sardarmal under section 7/16 Prevention of Food Adulteration Act, 1954. The case was dragging on in the Court of Magistrate, First Class, Sanwer. The judgment in this case was pronounced in the evening at 05:00-05:15’o clock imposing the minimum sentence of six months RI and fine of Rs. 1,000/-. In the evening itself the accused Sardarmal hitherto on bail was handcuffed and sent to police station as the entry in the prison was closed by then. Sardarmal was aged 70 years with one hand amputated up to arm and with that disability he was unable to change his clothes even. Shri Sharma handed over the certified copy of the judgment to me. He told me about the gravity of the situation and the gloom suffered by the family.

Shri Sharma also told me that while coming from Sanwer to Indore they had a brief halt at his farm on the way. Gokul unable to bear the indignity of his father jumped into the well on his farm and with the effort of his servants could be dragged out without injury. Gokul told me that he would not put anything into his mouth not even water till Sardarmal was out of prison. I expressed my utter helplessness to do anything instantaneously. Appeal with an application for suspension of sentence could be filed only on Monday and there was no possibility of Sardarmal coming out before that.

As an advocate I did not have much experience of criminal matters but the experience gained during judicial service of two years helped me. I had studied the Rules and Orders (Criminal) then very thoroughly and suddenly I was reminded of Rule 245 of Rules and Orders (Criminal) which reads as under :-

“245. In every case resulting in conviction, in which a sentence of imprisonment is passed, judgment should, as far as possible, be pronounced in the forenoon and at the headquarters of the court, care being taken to see that the next day is not a holiday. The time and the place of the pronouncement of the judgment, and in case the rule could not be observed the reasons of non-observance, should be specified in the order-sheet. This rule must invariably be observed if the accused is on bail during the trial and on conviction is sentenced to undergo a term of imprisonment.”

I drafted a memo of appeal along with application for suspension of sentence and proceeded to a typist. In my application for suspension of sentence I quoted the aforesaid rule and urged that the judgment and sentence has been passed on Saturday at 05:00 P.M. in violation of the aforesaid rule and therefore it has become imperative to present the appeal along with application at residence. It was already 09:30 P.M. and then I proceeded to the residence of the then District and Sessions Judge Shri M.L. Malik who was District Judge, Indore for five years (1967-1972) and later a judge of Madhya Pradesh High Court from 02.06.1973 to 05.05.1983. Till then I had no occasion to appear before him and I had considerable hesitation and fear in going to his residence for relief at that hour. I opted to run the risk in view of the pathetic condition of Gokul and his entire family and proceeded on my Lamberatta MHC4436 to Radio Colony and located the residence of District and Sessions Judge after enquires from passersby. I have a graphic vivid recollection of everything that happened thereafter. With trembling fingers I pressed the call bell. I noticed that Shri Malik was engaged in dinner with the army commandant of Mhow. He himself opened the door and I told him that I am sorry to disturb him for judicial work at that hour. He smiled, permitted entry and asked me to wait for 20 minutes in his drawing room. I did accordingly. The great Malik Sahab appeared after 15 minutes in the drawing room and asked me as to what was the matter about. I briefly stated the purpose of my visit and placed my papers before him. He perused them and then conversation between us followed:-

Malik :      Are you sure that the judgment has been passed at 05:00 P.M. ?

BLP :        Sir, in fact it was at 05:30 P.M. but in the application I have mentioned 05:00 P.M.

Malik :     Even if I suspend the sentence just now, how the bail bonds would be verified as Nazarat is closed tomorrow and would open not before 11:00 A.M. on Monday.

BLP :        Sir, the discretion vesting in the Appellate Court regarding the terms on which the sentence should be suspended is widest. The appellant was on bail till 05:30 P.M. today. Only five hours have passed and the solvency of the surety has never been doubted by anyone. Your honour can direct that if the same surety furnishes the security bond it may be accepted without any verification.

Shri Malik thought over for few minutes, went inside, brought two blank full sheets of paper and asked me to take down the order which he was going to dictate. I was astonished. He dictated and I took down the order entertaining the appeal and suspending the sentence on the condition submitted by me. He put his signatures thereon and wrote in his own handwriting “District and Sessions Judge, Indore” below his signatures. Then he asked me to prepare a copy of the order on the second sheet. He endorsed “certified true copy for compliance” and put his signatures and designation on the copy also and handed it over to me. It was past 10:30 P.M. by then. He asked me to handover this copy to Magistrate for further action early in the morning and not immediately at that hour. I returned back. Shri Malik followed me up to the exit gate and conversed as under :-

Malik :     Is the appellant a big man ?

BLP :        No sir, he is an ordinary village grocer. Had he been a big man, some big lawyer in a fat car with several juniors would have been before you and not a struggling lawyer on a Lambretta.

Malik:       (with a smile on his face) Youngman treat this case as an exception. Do not make it a rule.

BLP:         Of course not. Even in this case it is the breach of rules on the part of the Magistrate which has brought me to you at this odd hour.

I returned home on my Lambretta with the copy of the order. A miracle of life has happened. To say that I was happy would be a gross understatement. I was virtually dancing with joy and flying in air. At about 11:00 P.M. when I returned home in Cloth Market, Indore, Gokul, Sharmaji and about 10-15 relatives and friends of Gokul’s family were waiting. The outcome was unbelievable to all of them. On Sunday morning at 08:00 A.M. the copy along with security bond with an affidavit was delivered to Magistrate then residing at Jawahar Marg, Indore and in turn he addressed a letter to SHO, Sanwer directing release of the appellant Sardarmal. At about 09:00 A.M. on Sunday Sardarmal was out and back home to great surprise of the entire locality.

Malik Saheb, later Justice Malik was a great gentleman. His unfailing and uniform courtesy to the bar was exemplary. Never during his five years tenure as District Judge at Indore or ten years tenure as High Court Judge at Jabalpur any harsh or uncharitable word to any member of the bar ever slipped from his tongue. He was a quiet judge with excellent command on law and language both. He had a large hearted and compassionate judicial approach throughout his career. The smile on his face was very lively and could give a clear indication to the arguing counsel of his agreement or disagreement with the submissions. On Monday when I appeared in court before him for the appeal he informed me that as this matter was entertained at his residence, he would not hear it and transfer it to some Additional Sessions Judge. That was done immediately.

The memory of that Saturday night still thrills me now and then. Within the same frame work of law and rules there lies a vast area of judicial discretion where the approach of the judge is decisive. The sensitivity of our judicial system towards liberty of citizen is on decline and receding very fast. I wonder if the framers of the aforesaid rule (Englishman in 1936) were far more sensitive and compassionate than many of the present day judges. When I narrate this story of conviction and jail on Saturday evening and suspension, bail and release on Sunday morning to my junior colleagues they express astonishment to the point of disbelief. According to them it is inconceivable today, a near impossibility. I narrated this story to some of my batchmates who have retired as judges of the High Court. They told me that if a District Judge today ventures to do what Malik Saheb has done in my case, he is sure to invite a departmental enquiry and to imperil his elevation if he is in the queue. The institution which has a constitutional obligation to protect liberty of citizen has become altogether insensitive to it.

Malik Saheb is no more. I am yet to see another rare combination of such rare judicial virtues on the Bench.

About B.L. Pavecha

B.L. PavechaShri B.L. Pavecha is a Senior Advocate in the Madhya Pradesh High Court Bench at Indore. He is in practice since 1962 and was designated as a Senior Advocate in 1995.

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