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Thursday, October 1, 2015

Similarly, in Gulmahmad Abdulla Dall v. State of Gujarat 2014 (4) Crimes 455 (SC), the appellant was sentenced by the trial court to undergo rigorous imprisonment for a period of one year and a fine of Rs. 2500/- for the offence punishable under Sections 161 and 165(A) of Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947. While hearing an appeal on the quantum of sentence, this Court reduced the sentence of the accused to the period already undergone on the ground of protracted legal proceedings. The following passage is, in this regard, apposite: “7. The incident, in question, took place as back as on 29/6/1987. Almost 27 years have passed by. All these years, the Appellants must have suffered tremendous mental trauma and anguish. The Appellants have lost their jobs and all retiral benefits. The Appellant - Jujarsinh is, as of today, about 76 years old. We are informed by learned Counsel for the Appellant - Gulmahmad Abdulla Dall that Gulmahmad is suffering from gangrene and has undergone surgery. Both the Appellants are in jail. We are informed by learned Counsel for the Appellants that the Appellants have undergone about more than two months imprisonment.In the peculiar circumstances of the case, therefore, we are of the opinion that the sentence undergone by them should be treated as substantive sentence for the offences for which they are convicted and fine imposed on them needs to be enhanced”. Given the fact that the trial and appeal proceedings have in the case at hand continued for nearly 17 years by now causing immense trauma, mental incarnation and anguish to the appellant and also given the fact that the bribe amount was just about Rs.700/- and that the appellant has already undergone 7½ months against the statutory minimum of 6 months imprisonment, the reduction of the sentence as proposed by my esteemed Brother appears to be perfectly in order. I, therefore, concur with the view taken by His Lordship.

                                 Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1264  OF 2015
                 (ARISING OUT OF SLP (Crl.) NO. 444 OF 2015)


K.P. SINGH                             ………APPELLANT
                                     Vs.
STATE OF N.C.T. OF DELHI           ……RESPONDENT

                                  O R D E R


V.GOPALA GOWDA, J.

       Leave granted.

2.    The present criminal appeal is directed against the impugned  judgment
and order dated 31.10.2014 passed by the High Court of Delhi  at  New  Delhi
in Crl. A. No. 758 of 2008, wherein it has affirmed the  conviction  against
the appellant for the offence punishable under Section 8 of  the  Prevention
of Corruption Act, 1988 (hereinafter “the P.C. Act”)  and  reduced  sentence
awarded from 2 years  to  1  year  retaining  Rs.5000/-  fine  imposed  with
default sentence of 2  months  after  re-appreciation  of  evidence  of  the
prosecution witnesses no.6, 9 and 13 and accepted their evidence  as  cogent
to prove the charge levelled  against  him  in  exercise  of  its  appellate
jurisdiction. Various legal contentions  have  been  urged  by  the  learned
counsel on behalf  of  the  appellant  before  this  Court  questioning  the
correctness of the judgment and order reducing the sentence of  imprisonment
imposed upon him from 2 years to 1 year with fine amount of  Rs.5,000/-  and
in default sentence as mentioned above. This  Court  vide  its  order  dated
02.02.2015 has issued notice to the respondent to  re-consider  the  quantum
of sentence subject to the condition that the  appellant  surrender  to  the
Central Jail, Tihar to undergo sentence and  file  proof  thereof  within  a
week. Accordingly, he surrendered to the Central Jail, Tihar  on  04.02.2015
in case FIR No. 29 of 1997.

3.    Mr. Radha Shyam Jena, learned  counsel  appearing  on  behalf  of  the
appellant contends that both the Special  Court  and  the  High  Court  have
erred in convicting the appellant despite the fact  that  the  main  accused
Ms. Manju Mathur has been acquitted for  the  offence  under  Sections  7,8,
13(1)(d) read with Section  13(2)  of  the  P.C.  Act,  on  appreciation  of
evidence on record and that  the  prosecution  failed  to  prove  the  guilt
against her. She was acquitted from the charges, which  order  has  attained
finality. The learned counsel has further contended that  the  courts  below
have erred in recording a finding of guilt on  the  charge  as  against  the
appellant despite the fact that there is no evidence on record to prove  the
same. The learned counsel has further contended  that  the  High  Court  has
erred in upholding the judgment and order of the Special Judge and  did  not
consider the essential ingredients of Section 8 of the P.C. Act,  which  are
that the accused should accept or agree to accept or even attempt to  obtain
gratification from someone, the gratification is for himself or for  someone
else and its motive or reward is to induce a public servant  by  corrupt  or
illegal means to do or forebear to do any official act or to show favour  or
disfavour to someone etc.

4.    It is further contended by  Mr.  Radha  Shyam  Jena,  learned  counsel
appearing on behalf of the appellant that  the  prosecution  has  failed  to
prove the involvement of someone other than the appellant.  Further,  it  is
alternatively contended by him that the appellant had  undergone  agony  and
trauma since the litigation has been going on for  the  last  17  years.  In
this backdrop, the High Court ought to have imposed the minimum sentence  of
6 months as provided under Section 8 of the P.C.  Act  in  exercise  of  its
discretionary power. Hence the present appeal urging various grounds.

5.    We have heard the learned counsel for the parties and  have  carefully
examined the concurrent findings  and  reasons  recorded  by  the  appellate
court in its judgment after re-appreciation of evidence in exercise  of  its
appellate jurisdiction. The High Court after adverting to  the  evidence  of
the prosecution witnesses has concurred with the findings  of  fact  on  the
charge framed against the appellant under Section 8 of the P.C.  Act.  While
concurring with the findings of fact on  conviction  of  the  charge  framed
against the appellant, the High Court  has  modified  the  sentence  imposed
upon him from 2 years to 1 year with no change in the fine  amount  and  the
default sentence as awarded by the learned Special Judge.

6.    We have carefully examined the impugned judgment and order  passed  by
the High Court with a view to ascertain whether the sentence imposed on  the
appellant by the High Court can be modified to the  minimum  sentence  of  6
months as provided under the provisions of Section 8 of the P.C. Act. It  is
an undisputed fact that the main accused No. 2 has been acquitted  from  the
charges framed against her by the Special Court. The learned Special  Judge,
on appreciation of evidence on record has  held  that  the  prosecution  had
failed to prove the charge against the accused No.  2,  who  is  the  public
servant. Further, pursuant to  our  order  dated  02.02.2015  the  appellant
surrendered to the Central Jail, Tihar on 04.02.2015 in FIR case No.  29  of
1997. He has served the sentence  for  more  than  7.5  months  as  per  the
certificate dated 6.9.2015 issued  by  the  Deputy  Superintendent,  Central
Jail, Tihar and has paid the fine amount awarded by the Special Court  which
fine amount as sentence is  affirmed by the High  Court.  Having  regard  to
the facts and circumstances of the case, particularly in the  light  of  the
fact that the main accused No. 2, against whom  the  charges  were  levelled
under Sections 7, 8, 13 (1) (d) read with Section 13 (2) of  the  P.C.  Act,
was acquitted for want of evidence on  record,  we  are  of  the  view  that
justice would be met if the period of  sentence  already  undergone  by  the
appellant be treated as the sentence to be imposed  for  the  conviction  on
the charge framed against  him.  To  that  extent  the  impugned  order   of
sentence imposed by the High Court is modified and  we  pass  the  following
order :-

This criminal appeal is partly allowed and  we  modify  the  order  impugned
with regard to the period of sentence already undergone by the appellant  is
treated as sentence imposed upon him for the charge proved against  him.  To
this extent the impugned order of sentence of 1 year  imposed  by  the  High
Court is modified. In view of the  above  modified  order  of  sentence,  we
direct the Superintendent of Central Jail, Tihar to  release  the  appellant
forthwith from the custody, if he is not  required  in  any  other  criminal
case.



                                     …………………………………………………………J.
                        [T.S. THAKUR]





                        …………………………………………………………J.
   [V. GOPALA GOWDA]


New Delhi,
September 28, 2015

                                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1264  OF 2015
                 (Arising out of SLP (Crl.) No. 444 of 2015)


K.P. Singh                                           …Appellant

Versus

State of NCT of Delhi                        …Respondent

                                  O R D E R

T.S. Thakur, J.

1.    I have had the advantage of going through the  order  proposed  by  my
Esteemed Brother Gowda, J. and find myself in complete  agreement  with  the
view taken by His Lordship  that  the  sentence  awarded  to  the  appellant
deserves to be reduced to the period already undergone by him.  Not  because
the reasoning given in support of that view is in any manner deficient,  but
only to buttress the conclusion arrived at by his  Lordship,  I  propose  to
add a few lines of my own.

2.    The facts to the extent relevant have been  elucidated  in  the  order
proposed by Gowda, J. It would, therefore, serve no purpose to  recapitulate
the same over again.  What is important is that the  principal  accused  has
been acquitted of the charges framed against  her  while  the  courts  below
have concurrently convicted the appellant for the offences punishable  under
Section 8 of the Prevention of Corruption Act, 1988.  In the present  appeal
we had issued notice limited to the question of  quantum  of  sentence  that
could be awarded to the appellant in the peculiar  facts  and  circumstances
of the case. The Trial Court had, as noticed by Gowda, J., awarded  rigorous
imprisonment for a period of two years and a fine  of  Rs.  5,000/-  to  the
appellant herein which has been in appeal reduced by the High Court  to  one
year besides a fine of Rs.5,000/- and a  default  sentence  of  imprisonment
for a period of two months.

3.    Determining the adequacy of sentence to be awarded in a given case  is
not an easy task, just as evolving a uniform sentencing policy  is  a  tough
call. That is because the quantum of sentence that may  be  awarded  depends
upon a variety of factors including mitigating circumstances peculiar  to  a
given case. The Courts generally enjoy considerable amount of discretion  in
the matter of determining the quantum of sentence. In doing so,  the  courts
are  influenced  in  varying  degrees  by  the  reformative,  deterrent  and
punitive aspects of punishment, delay in the conclusion  of  the  trial  and
legal proceedings, the age of the accused,  his  physical/health  condition,
the nature of the offence, the weapon used  and  in  the  cases  of  illegal
gratification the amount of bribe, loss of job  and  family  obligations  of
accused are also some of the considerations  that  weigh  heavily  with  the
Courts while determining the sentence to be awarded.  The  Courts  have  not
attempted  to  exhaustively  enumerate  the  considerations  that  go   into
determination of the quantum of sentence nor have the  Courts  attempted  to
lay down the weight that each one of these  considerations  carry.  That  is
because any such exercise is neither easy nor  advisable  given  the  myriad
situations in  which  the  question  may  fall  for  determination.  Broadly
speaking, the courts have recognised the factors mentioned earlier as  being
relevant to the question of determining  the  sentence.  Decisions  of  this
Court on the subject are a legion. Reference to some only  should,  however,
suffice.

4.    In B.G. Goswami v. Delhi Administration (1974) 3 SCC 85,  the  accused
was  convicted  under  Section  5(2)  read  with  Section  5(1)(d)  of   the
Prevention of Corruption Act, 1947 and under Section 161 of  I.P.C  and  was
sentenced to undergo rigorous imprisonment for a period  of  1  year  and  4
months. On appeal, this Court while reducing the punishment  to  the  period
already undergone, laid down the general principles that are to be borne  in
mind by the Courts while determining the quantum of punishment.  This  Court
observed:

“10. As already observed, the  appellant's  conviction  under  Section  161,
I.P.C. was rightly upheld by the High Court and there is  no  cogent  ground
made out  for  our  interference  with  that  conviction.  The  sentence  of
imprisonment imposed by the High Court for both these  offences  is  1  year
and this sentence is to run concurrently. The only question which arises  is
that under Section 5(1)(d) read with  Section  5(2)  of  the  Prevention  of
Corruption Act the minimum sentence prescribed is rigorous imprisonment  for
one year and there  must  also  be  imposition  of  fine.  The  sentence  of
imprisonment can be for a lesser period but in that event the Court  has  to
assign special reasons which must be recorded  in  writing.  In  considering
the special reasons the judicial discretion of the Court is as wide  as  the
demand of the cause of substantial justice. Now the question of sentence  is
always a difficult question, requiring as it  does,  proper  adjustment  and
balancing of various considerations which weigh  with  a  judicial  mind  in
determining its appropriate quantum in a given case.  The  main  purpose  of
the sentence broadly stated is that the accused must  realise  that  he  has
committed an act which is not only harmful to the society of which he  forms
an integral part but  is  also  harmful  to  his  own  future,  both  as  an
individual and as a  member  of  the  society.  Punishment  is  designed  to
protect society by deterring potential offenders as also by  preventing  the
guilty party from repeating the offence; it is also designed to  reform  the
offender and re-claim him as a law abiding  citizen  for  the  good  of  the
society  as  a  whole.  Reformatory,  deterrent  and  punitive  aspects   of
punishment thus play their due part in judicial thinking  while  determining
this question. In modern civilized societies,  however,  reformatory  aspect
is being given somewhat greater importance.  Too  lenient  as  well  as  too
harsh sentences both lose their efficaciousness. One does not deter and  the
other may frustrate thereby making the offender a hardened criminal. In  the
present case, after weighing the considerations already noticed  by  us  and
the fact that to send the appellant back to jail now after 7  years  of  the
agony and harassment of these proceedings when he is also going to lose  his
job and to earn a living for himself and for  his  family  members  and  for
those dependent on him, we feel that it would meet the ends  of  justice  if
we reduce the  sentence  of  imprisonment  to  that  already  undergone  but
increase the sentence of fine  from  Rs.  200/-  to  Rs.  400/-.  Period  of
imprisonment in case of default will remain the same.”



5.    In Dologovinda Mohanty v. State of  Orissa  (1979)  4  SCC  557,  this
Court upon considering the negligible amount of Rs. 138/-  alleged  to  have
been received by the accused as illegal gratification, took a  lenient  view
by  reducing  the  sentence  of  the  accused  from  four  months   rigorous
imprisonment to the period  already  undergone.  The  following  passage  is
apposite:

“….It, however, appears that the entire money which was said  to  have  been
embezzled by the appellant was recovered by the government by deducting  the
entire amount from the salary of the appellant. It  also  appears  from  the
statement of the accused under Section 342 that  in  view  of  his  domestic
circumstances he was mentally disturbed.  Having  regard  to  these  special
circumstances and further having regard to the facts that the sum  embezzled
is only Rs. 138/- we feel that it would not be proper to send the  appellant
back  to  jail.  The  appellant  has  already  undergone  about   a   week's
imprisonment. For these reasons, therefore, we reduce the  sentence  to  the
period already served and reduce the fine from Rs. 1,000/- to Rs.  500/-  in
default one month's rigorous imprisonment. Out of  the  fine,  if  deposited
already, Rs. 500/- may be refunded to the appellant. With this  modification
the appeal is dismissed.”



6.    In light of the long delay in the conclusion of the legal  proceedings
and the consequential agony and incarceration undergone  by  the  appellant,
this Court in M.W. Mohiuddin v.  State  of  Maharashtra  (1995)  3  SCC  567
reduced the sentence of six months imposed  on  the  accused  by  the  trial
court to the period already undergone:

“10. Now coming to the question of sentence, the offence took place  in  the
year 1981. All  these  years  the  appellant  has  undergone  the  agony  of
criminal proceedings until now and he has also lost his job and has a  large
family to support. It is also stated that he has become sick and infirm.  He
has been in jail for  some  time.  For  all  these  special  reasons,  while
confirming the conviction of  the  appellant,  we  reduce  the  sentence  of
imprisonment to the  period  already  undergone.  However,  we  confirm  the
sentence  of  fine  with  default  clause.  Accordingly,  subject   to   the
modification of sentence of imprisonment, the appeal is dismissed.”



7.    To the same effect is the decision of this Court in  Ghulam  Din  Buch
etc. etc. v. State of Jammu and Kashmir  (1996)  9  SCC  239  wherein  after
considering the long delay in the legal proceedings, this Court reduced  the
punishment of the accused to two months rigorous imprisonment  for  offences
punishable under the Prevention of  Corruption  Act,  1947  and  the  Ranbir
Penal Code. This Court said:

“28. According to us, it would be  too  harsh  to  award  even  the  minimum
punishment at this length of time  keeping  in  view  the  hardship  already
undergone and the amount which the State had ultimately to lose  because  of
the conspiracy - the same being a sum  of  Rs.  1,62,117.89.  As  about  two
decades have passed since the commission of the offence and  as  during  the
interregnum the appellants  had  undoubtedly  suffered  in  body  and  mind,
according to us, it is a fit case where the proviso to  Sub-section  (2)  of
Section 5 of the Act  should  be  invoked  which  states  that  for  special
reasons recorded in writing, the court may refrain from imposing a  sentence
of imprisonment or impose a sentence of imprisonment of less than one  year.
Though the proviso permits not to impose a sentence of imprisonment  at  all
and confine the sentence to fine only, we do not think if present is a  case
where the punishment to be awarded should be only fine, as any  softness  in
this regard could produce an undesirable result,  namely,  encouragement  to
adoption of corrupt  means  by  public  servants  which  has  indeed  to  be
checked, and not allow to be encouraged. Keeping in view all  the  attending
circumstances, we are of the view that a  sentence  of  RI  for  two  months
would be adequate sentence, apart from the fine of Rs.  15,000.  On  failure
to pay the fine, each of the appellants would suffer  imprisonment  for  two
months.”



8.    So also, in the case  of  State  of  Maharashtra  v.  Rashid  Babubhai
Mulani (2006)  1  SCC  407,  the  accused  had  allegedly  obtained  illegal
gratification to the tune of  Rs.  300/-  for  which  the  trial  Court  had
convicted the accused under Section 161 of the I.P.C.  and  for  an  offence
punishable under Section 5(2) read with Section 5(1)(d)  of  the  Prevention
of Corruption Act, 1947 and sentenced him to  rigorous  imprisonment  for  a
period of one year. This Court reduced the sentence  to  four  months  after
considering the bribe amount and the long delay. The following  observations
are, in this regard, relevant:

“6. In regard to sentence, we find  that  the  incident  occurred  about  19
years ago. The matter was pending for  about  3  years  before  the  Special
Judge, and about 8 years before the High Court and, thereafter, for 8  years
before this Court. The accused was hardly 32 years  old  when  the  incident
occurred and now more than 50 years old. The accused was  a  Talathi  coming
from a poor background with a  family  to  support.  In  the  circumstances,
while restoring the conviction, we reduce the  sentence  from  one  year  to
four months both under Section 161 IPC and Section 5(2)  read  with  Section
5(1)(d) of the Act. Both the sentences to  run  concurrently.  The  accused,
who is on bail, shall surrender forthwith to serve out the sentence.”



9.    So also, in the case of Bechaarbhai S. Prajapati v. State  of  Gujarat
(2008) 11 SCC 163, this Court reduced the sentence of one year  imprisonment
imposed on the accused for the offences under  Section  161  of  the  Indian
Penal Code, 1860 and Section 7(2)  of  the  Prevention  of  Corruption  Act,
1988. The Court, in the  following  words,  held  that  the  delay  and  the
sentence undergone by the accused were  mitigating  factors  in  determining
the quantum of sentence:

“8. The alternative submission relates to the  harshness  of  sentence.  The
occurrence took place nearly  seven  years  back.  It  is  stated  that  the
appellant has suffered  custody  for  more  than  six  months.  Taking  into
account all these aspects, we feel interest of justice would be best  served
if the sentence is reduced to the period undergone,  while  maintaining  the
conviction. It is to be noted that the  minimum  sentence  prescribed  under
Section 7(2) of the Act is six months.”

10.   In the recent decision of this Court in V.K. Verma  v.  CBI  (2014)  3
SCC 485, the accused was charged under  Section  161  of  the  Indian  Penal
Code, 1860  and  Section  5(1)(d)  read  with  5(2)  of  the  Prevention  of
Corruption Act, 1947 for demand and acceptance of a bribe  of  Rs.265/-  and
was sentenced to undergo rigorous imprisonment for a period  of  one  and  a
half years for each of the offences. This Court, while  hearing  his  appeal
limited the quantum of punishment  to  the  period  already  undergone.  The
following words are seminal to the issue at hand:

“10. In imposing a punishment, the concern of the court is with  the  nature
of the act viewed as a crime or breach of the law. The maximum  sentence  or
fine provided in law is an indicator on  the  gravity  of  the  act.  Having
regard to the nature and mode of commission of an offence by  a  person  and
the mitigating factors, if any, the court has  to  take  a  decision  as  to
whether the charge established falls short of the maximum gravity  indicated
in the statute, and if so, to what extent.

11. The long delay before the courts in taking a final decision with  regard
to the guilt or otherwise of the accused is one of  the  mitigating  factors
for the superior courts to take into consideration while taking  a  decision
on the quantum of sentence….

xxx              xxx              xxx

15. The Appellant is now aged 76. We are informed that he is  otherwise  not
keeping in good health,  having  had  also  cardio  vascular  problems.  The
offence is of the year 1984. It is almost three  decades  now.  The  accused
has already undergone physical incarceration for  three  months  and  mental
incarceration for about thirty years. Whether at  this  age  and  stage,  it
would not be economically wasteful, and a liability to  the  State  to  keep
the Appellant in prison, is the question we have to  address.  Having  given
thoughtful consideration to all the aspects of the matter,  we  are  of  the
view that the facts mentioned above would certainly be special  reasons  for
reducing the substantive sentence but enhancing the fine, while  maintaining
the conviction.”

11.   Similarly, in Gulmahmad Abdulla Dall v.  State  of  Gujarat  2014  (4)
Crimes 455 (SC), the appellant was sentenced by the trial court  to  undergo
rigorous imprisonment for a period of one year and a fine of Rs. 2500/-  for
the offence punishable under Sections 161 and 165(A) of  Indian  Penal  Code
and under Section 5(2) of the Prevention  of  Corruption  Act,  1947.  While
hearing an appeal on  the  quantum  of  sentence,  this  Court  reduced  the
sentence of the accused to the period already undergone  on  the  ground  of
protracted legal proceedings. The following  passage  is,  in  this  regard,
apposite:

“7. The incident, in question, took place as back as  on  29/6/1987.  Almost
27 years have passed by. All these years, the Appellants must have  suffered
tremendous mental trauma and anguish. The Appellants have  lost  their  jobs
and all retiral benefits. The Appellant - Jujarsinh is, as of  today,  about
76 years old. We are  informed  by  learned  Counsel  for  the  Appellant  -
Gulmahmad Abdulla Dall that Gulmahmad is suffering  from  gangrene  and  has
undergone surgery. Both the Appellants are  in  jail.  We  are  informed  by
learned Counsel for the Appellants that the Appellants have undergone  about
more than two months imprisonment.

8. In the peculiar circumstances of the  case,  therefore,  we  are  of  the
opinion  that  the  sentence  undergone  by  them  should  be   treated   as
substantive sentence for the offences for which they are convicted and  fine
imposed on them needs to be enhanced”.



12.   Given the fact that the trial and appeal proceedings have in the  case
at hand continued for nearly 17 years by now causing immense trauma,  mental
incarnation and anguish to the appellant and also given the  fact  that  the
bribe amount was just about Rs.700/- and  that  the  appellant  has  already
undergone 7½ months against the statutory minimum of 6 months  imprisonment,
the reduction of the sentence as proposed by my esteemed Brother appears  to
be perfectly in order. I, therefore, concur  with  the  view  taken  by  His
Lordship.



                                                          ………………….……….…..…J.
       (T.S. Thakur)
New Delhi
September 28, 2015

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