1. Since all the aforesaid cases arise out of the common impugned judgment, they are being disposed of by this common order.
2. Accused persons viz. Bhagirath Jatav and Manish have been convicted by judgment dated 8.12.2009 passed by Fourth Additional Sessions Judge, Bhopal (Shri Shailendra Shukla) in Sessions Trial No. 240/2009 under Sections 364-A read with Section 120-B of the Indian Penal Code and have been sentenced to rigorous imprisonment for seven years with fine of Rs. 5,000/-. Accused Madan has been convicted under Section 368 read with Section 120-B of the Indian Penal Code and has been sentenced to rigorous imprisonment for four years with fine of Rs. 1,000/-. All these three accused persons have also been convicted under Section 386 read with Section 120-B of the Indian Penal Code and sentenced to rigorous imprisonment for five years with fine of Rs. 2,000/-. All the aforesaid jail sentences have been directed to run concurrent.
3. A letter of request has been received by the High Court from the trial Judge Shri Shailendra Shukla, Fourth Additional Sessions Judge, Bhopal submitting that due to bonafide mistake, he awarded sentence of seven years rigorous imprisonment to aforesaid accused persons while convicting them under Section 364-A of the Indian Penal Code, whereas the minimum punishment for the said offence is imprisonment for life. Since no powers of review are available to trial Court, he has referred this matter for consideration and rectification of mistake.
4. This Court by order dated 1.2.2010 passed in Criminal Reference No. 109/2010, took up the matter as suomotu revision and issued notices to all the concerned accused persons.
5. State has also filed Criminal Appeal No. 249/2010 under Section 377 of the Code of Criminal Procedure for enhancement of the sentence of respondent nos. 1 and 2 viz. Bhagirath Jatav and Manish stating that the sentence awarded to these respondents under Section 364-A of the Indian Penal Code by the trial Court is not according to law. The minimum sentence provided for the offence under Section 364-A of the Indian Penal Code is imprisonment for life, therefore, sentence of aforesaid respondents be enhanced.
6. In Criminal Appeal No. 113/2010 accused/appellants Manish and Madan have challenged their conviction and sentence passed by the trial Court under Sections 364-A read with Section 120-B, 386 read with Section 120-B and 368 read with Section 120-B of the Indian Penal Code. Similarly in Criminal Appeal No. 180/2010 accused/appellant Bhagirath Jatav has challenged his conviction and sentence passed by the trial Court against him under Sections 364-A read with Section 120-B and 386 read with Section 120-B of the Indian Penal Code.
7. After going through the impugned judgment passed by the Fourth Additional Sessions Judge, Bhopal, we find that accused Manish and Bhagirath Jatav have been convicted under Section 364-A read with Section 120-B of the Indian Penal Code and sentenced to rigorous imprisonment for seven years with fine of Rs. 5,000/-. It is also seen that accused Madan, who has been convicted under Section 368 read with Section 120-B of the Indian Penal Code has also been sentenced to rigorous imprisonment for four years with fine of Rs. 1,000/-. It's necessary to quote the provision of Section 364-A of the Indian Penal Code for ready reference. It reads as under: "364-A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter- governmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
8. On perusal of the above provision of law, it is apparent that whoever is convicted on the charge under Section 364-A shall be punishable with death or imprisonment for life, and shall also be liable to fine. Thus, except these two sentences, no other punishment is provided for a person convicted on the charge under Section 364-A of the Indian Penal Code.
9. Though, it has not been visualized by the trial Judge or by the State, but it is also important to note that when person is convicted on the charge under Section 368 of the Indian Penal Code, he is to be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement. Section 368 of the Indian Penal Code reads as under:
"368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
10. Thus the sentence of rigorous imprisonment for four years awarded to accused Madan under Section 368 read with Section 120-B of the Indian Penal Code is also illegal, incorrect and not in accordance with the law.
11. This Court in exercise of powers under Section 397 read with Section 401 of the Code of Criminal Procedure is empowered to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the inferior Court and pass appropriate orders for rectification of mistakes and illegalities committed by the the inferior Courts.
12. Learned counsel for the State as well as the learned counsel of respective accused appellants/respondents have not disputed the above legal position.
13. In view of the above position of law, in exercise of powers under Sections 377, 386 and 397 read with Section 401 of the Code of Criminal Procedure, we deem it just and proper to set aside and hereby set aside the sentence part of the impugned judgment in respect of accused Manish, Madan and Bhagirath Jatav, without touching or commenting upon the merits of their conviction under Sections 364-A read with Section 120-B and 368 read with Section 120-B of the Indian Penal Code.
14. Accordingly, Criminal Reference No. 109/2010 and Criminal Appeal No. 249/2010 filed by the State under Section 377 of the Code of Criminal Procedure is allowed. The case is remanded to the trial Court for passing the order of sentence afresh against accused Manish, Madan and Bhagirath Jatav according to law after providing them adequate opportunity of hearing on the question of awarding sentence to them.
15. Criminal Appeal No. 113/2010 preferred by accused Manish and Madan and Criminal Appeal No. 180/2010 preferred by accused Bhagirath Jatav are disposed of in terms of the order passed hereinabove in Criminal Reference No. 109/2010 and Criminal Appeal No. 249/2010.
16. We, however, make it clear that the accused Manish, Madan and Bhagirath Jatav shall be at liberty to file fresh appeal after appropriate sentence is awarded to them by the trial Court.