Fifteen years after a man was convicted of murder and sentenced to 35 years' imprisonment, he has approached the Delhi High Court challenging the legality of the trial court's sentencing order [Mahender @ Dabbu v State (Govt of NCT of Delhi)]. 

In his plea, convict Mahender alias Dabbu has argued that the trial court lacked the power to impose such a “modified sentence”. 

A modified sentence is a special form of life imprisonment where a court fixes a specific period of actual incarceration, such as 20, 25, 30 or 35 years, before the convict can be considered for remission or release.

The trial court, while sentencing him to life imprisonment on May 13, 2011, directed that he undergo 35 years of actual imprisonment before being considered for remission. Mahender's conviction and sentence were subsequently upheld by the Delhi High Court in 2013 and by the Supreme Court in 2014. 

He has now relied on a 2015 Constitution Bench judgment in the case of Union of India v V Sriharan @ Murugan, which held that the power to impose a modified sentence could be exercised only by constitutional courts.

A Division Bench of Justices Navin Chawla and Arun Bhardwaj of the High Court heard the matter on September 24 and reserved its verdict. 

Notably, in his plea, Mahender has said that he is not challenging his conviction but only the legality of the sentence imposed on him. He has sought a direction to the trial court to rehear him on the question of sentence. 

As per the petition, the power to impose a modified sentence, including a sentence of a fixed term in substitution of a sentence of imprisonment for life or death penalty is vested only in the Constitutional Courts, namely, the High Courts and the Supreme Court, and such power is not available to the courts subordinate to Constitutional courts.

This is a settled proposition of law as laid down by the Constitution Bench of the Supreme Court in Union of India v. V Sriharan @Murugan, it was contended.

The petitioner conceded that the judgment and sentence in his case had attained finality in 2014 while the Constitution Bench decision in Sriharan case was delivered only in 2015.

However, it is a settled constitutional principle of law that judgments are retrospective unless expressly made prospective, it was argued.

In the Sriharan judgment, the Supreme Court did not expressly make it prospective and hence it applies retrospectively, it was submitted.

"Though to be fair to this Hon'ble Court Constitutional bench decision came to be decided on 02.12.2015 and by that time present case attained finality when Special Leave Petition was dismissed on 01.08.2014, yet, it is a settled constitutional principle of law that Judgments are retrospective unless expressly made prospective meaning thereby Judgment of Constitutional Bench decision Sriharan will apply retrospectively as it had not expressly made prospective," the plea said.

Therefore, the trial court committed an error by imposing a modified sentence.

Hence, the trial court should be directed to rehear the matter on the aspect of sentence, the petitioner has prayed.

Senior Advocate Rishi Malhotra along with advocates Ansuiya, Shivansh Maini, Saurabh Kumar Gupta, and Shweta Sharma appeared for petitioner Mahender.

Advocates Amol Sinha, Kshitiz Garg, Anshul Sharma, Nitish Dhawan and Chavi Lazarus appeared for the State.

[Read Order]