Criminal Writ Petition No. 2109 of 2011. Case: Guerrero Lugo Elvia Grissel and Ors Vs State of Maharashtra. High Court of Bombay (India)

Case NumberCriminal Writ Petition No. 2109 of 2011
CounselFor Petitioner: Murtaza Najmi, Jagdish Shetty, Advs. and For State: Mrs. M. M. Deshmukh, A.P.P.
JudgesA. M. Khanwilkar, J. and R. G. Ketkar , J.
IssueCriminal Procedure Code (2 of 1974) - Section 265E; Constitution of India - Article 14
Citation2012 CriLJ 1136
Judgement DateJanuary 04, 2012
CourtHigh Court of Bombay (India)


A. M. Khanwilkar, J.

  1. This matter raises pure question of law as to the interpretation of Section 265-E of the Code of Criminal Procedure, 1973, in particular clause (d) thereof. The petitioners were arrested by DCB, C.I.D., Unit XII, in connection with C.R. No. 77/2010 on 26th August, 2010 at Dubai for having committed offence under Sections 380 and 34 of the Indian Penal Code.

  2. Shorn of details, the prosecution case is that-

    (a) An International Jewellery Exhibition was held at Mumbai Exhibition Centre, Goregaon (E), Mumbai, between 19th August, 2010 and 23rd August, 2010. A Jewellery Company of Hongkong by name Daluwi Diamonds had also installed its stall thereat. One Goy Yehskil Yas, an Israel National, the complainant, was looking after the stall of Dalumi Diamonds along with his associates Kobi and Henry, both foreign nationals.

    (b) That on 23rd August, 2010, at about 3.30 p.m., when the complainant was busy in winding up and putting the diamonds in boxes, one unknown person came to the stall and diverted the attention of Kobi, who later found one diamond box worth ' 6,60,85,000/- missing. The complainant lodged his complaint with Goregaon (E) Police Station which was registered vide C.R. No. 251/10 under Section 380 read with Section 34 of the Indian Penal Code. The case was transferred to DCB, CID, on 24th August, 2010 and registered as C.R. No. 77/2010.

    (c) The accused were arrested at Dubai International Airport by Dubai Police on 25th August, 2010 along with diamonds and gold ornaments valued at ' 3,00,00,000/- and brought to Mumbai by DCB, CID, Unit 12.

    (d) In the meantime on 25th August, 2010, DRI, Mumbai, intercepted a box containing 1641 diamonds and other articles which were booked to Italy through Air Courier, DHL, on 23rd August, 2010 at the Airport. The wanted accused had booked the said box. The diamonds recovered by DRI are valued at ' 3,60,85,000/-. Thus, the entire diamonds have been recovered.

    (e) The prosecution claims to have verified the footage of C.C.TV camera installed at the exhibition site and found some of the accused near the stall of the complainant at the material time.

  3. In this backdrop, the petitioners were arrested on 26th August, 2010 in connection with the alleged offence. After carrying out investigation, the police filed charge-sheet against the accused (petitioners). The petitioners had applied for bail, which was, however, rejected on 4th December, 2010. Since the petitioners were more than convinced that the trial of the case would take quite some time, and the petitioners, being foreign nationals from Mexico, were keen to return back to their home countries at the earliest, they decided to move an application under Section 265-B of the Code, for plea-bargaining. The said application was filed on 22nd December, 2010. Besides, the petitioners filed separate affidavits, stating that they have filed the application for plea-bargain after understanding the nature and extent of punishment provided under law for the offence. Further, they have filed the said application voluntarily. They asserted that they have not been convicted previously by any Court of the same offence with which they have been charged and facing trial.

  4. Consequent to filing of the aforesaid application and affidavit by each of the petitioners, the designated Metropolitan Magistrate interviewed the petitioners and recorded their plea under Section 265-B (4) of the Code of Criminal Procedure in camera through interpreter, as the petitioners were familiar only with Spanish language. In the course of their statement, each of them, when called upon to indicate as to whether they were aware that they may be sentenced to one-fourth of the maximum punishment or one-half of the minimum punishment, in addition to the payment of the compensation, if any, they have, in no uncertain terms, stated that their lawyer had informed them that they will be sentenced with one-fourth of the maximum punishment or one-half of the minimum punishment specified for the stated offence.

  5. Thereafter, the Additional Chief Metropolitan Magistrate examined the plea of the accused, as required under Section 265-B (4) of the Code, and recorded his satisfaction that, from the plea of the accused, they have moved the application for plea-bargaining voluntarily and without any sort of pressure on them. Accordingly, the Magistrate kept the case for hearing to work out a mutually satisfactory disposition of the case. Consequent thereto, the process of arriving at mutually satisfactory disposition was taken forward and culminated in filing of report jointly signed by the Special Public Prosecutor and Investigating Officer of the case under Section 265-B of the Code.

  6. In the context of the issue that arises in this matter, we deem it apposite to advert to the relevant clauses of the said report, which read thus:-

    "4. The parties followed the guidelines given under Section 265-C and finally arrived at the mutually satisfactory disposition. The complainant and the accused filed their reports of mutually satisfactory disposition before the Court in writing.

  7. The complainant claimed that he had received ' 55 lakhs in cash at Hong Kong and that he had accepted the said money from the accused as satisfactory disposition as compensation.

  8. As agreed, the accused are willing to deposit ' 5 lakhs in the Court as expenses incurred during the case by the State. The State is agreeable to the disposition and the said money may be deposited with the Registrar of the Court on behalf of the State of Maharashtra.

  9. Under Section 265-E, the court shall dispose of the case in the manner provided under the section as sub-section (a) and (b) are not applicable to the accused. The benefit of releasing the accused on probation of good conduct under the Probation of Offenders Act is not attracted as the crime is exceptional and daring committed in India by foreigners.

  10. The case of the applicant falls under Section 265-E(d) as the offence committed by the accused is punishable with 7 years, the court may sentence the accused to one-fourth of the punishment provided or extendable, i.e. offences under Sections 380, 34, 109, 120 (B) of IPC.

  11. The property, i.e. the stolen diamonds from Dalumi Diamonds, Hong Kong valued at 6.73 crores are recovered at the instance of the arrested accused and also the wanted accused. One portion of the stolen diamonds, i.e. 305 carats, is in the custody of the Investigating Officer and the other portion, i.e. 619 carats, is in the custody of DRI. The complainant is claiming the said property and the State has no objection to return the same to the complainant.

    In the above circumstances, the Hon. Court may deliver the judgment in terms of Section 265 (F) by convicting the accused for 1/4 th of the maximum punishment extendable i.e. 7 years, which comes to 21 months. The Court may give the benefit of set-off period i.e. 8 months 10 days, which is undergone by the accused.

    The Court may convict and sentence accused for the remaining period of 12 months 20 days in addition to the compensation to the complainant and the expenses to the State of Maharashtra, as the final satisfactory disposition of the 'Plea Bargaining '." (Emphasis supplied)

  12. The matter proceeded before the Additional Chief Metropolitan Magistrate, who recorded his satisfaction that the accused have moved the application for plea-bargaining voluntarily and without any sort of pressure on them.

  13. The matter was then placed for hearing before the Additional Chief Metropolitan Magistrate, as required under Section 265-E of the Code. The Magistrate, vide impugned judgment and order dated 24th May, 2011, noted that it is already stated in the order of Report of the Mutually Satisfactory Disposition of the matter, the case is not that of the kind which should be dealt with in accordance with clause (b) of Section 265-E of the Code by giving the benefit of Section 360 of the Code or the Probation of Offenders Act, looking into the nature of the offence and the value of the property involved. The Court, therefore, heard the parties on the quantum of sentence. The argument of the petitioners before the Magistrate was that the entire stolen property has been returned or proposed to be returned to the complainant, and, in addition to that, the complainant is already paid the compensation to the tune of ' 55 lakhs. As a result, the loss of the complainant is sufficiently compensated. Further, all the accused are in jail right from the date of their arrest, i.e., 26th August, 2010. Moreover, the State has also been compensated to the tune of ' 5 lakhs on account of expenditure of the investigation, etc. It was argued that, keeping in mind all these aspects, even if the prosecution was to prove guilt of the accused at the end of the trial, the Court, normally, would impose sentence with imprisonment of two years and not up to the maximum imprisonment of seven years. On this premise, in exercise of power under Section 265-E (d) of the Code, the Court ought to award imprisonment of one-fourth of two years' period, which, normally, the accused would have received, in which case, the sentence to be awarded to the petitioners would come to six months.

  14. Besides this argument, relying on the expression "may" and "provided or extendable", it was argued on behalf of the petitioners that the same denotes that the Court has discretion to award sentence, which can be for a period less than one-fourth of the punishment provided or extendable. According to the petitioners, the purpose of introducing Chapter of Plea Bargaining by Amendment Act 2 of 2006 was to end uncertainty, save litigation costs and anxiety costs, to reduce back-breaking burden of the Court case and also to reduce the congestion in jails. Considering all these aspects, a purposive interpretation is warranted.

  15. The Special Public Prosecutor, on the other hand, argued that the Court had no...

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