REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1429 OF 2011
(Arising out of S.L.P. (CRL.) No. 3262 of 2011)
Munilal Mochi .... Appellant(s)
Versus
State of Bihar & Anr. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the common final
judgment and order dated 28.07.2010 passed by the learned
Single Judge of the High Court of Judicature at Patna in
Criminal Appeal (SJ) No. 600 of 2004 which was filed by the
appellant herein along with Criminal Appeal (SJ) Nos. 576,
595, 609 and 625 of 2004 whereby the High Court dismissed
the appeal upholding the order of conviction passed by the
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trial Court and reduced the sentence from two and a half years
to one and a half years.
3) Brief facts:
(a) Several schemes of National Rural Employment
Programme (in short "NREP") executed between the years
1982-83 by the officers posted at Piro, District Ara with the
assistance of some executing agents/agencies came under the
scan of the Vigilance Department. Enquiries including re-
measurement of the Schemes/works executed under these
Schemes revealed that some local officers posted in the Block
in connivance with agents appointed for few Schemes
fraudulently withdrew and misappropriated the Government
funds in relation to those schemes and created official
records/documents to cover up such defalcation.
(b) On 14.09.1983, one Hem Raj Prasad, Dy. S.P. Cabinet
(Vigilance) Department, Government of Bihar, Patna, made a
written complaint before the Office-in-charge, Vigilance Police
Station, Patna, alleging that in Piro Block of District Ara,
under NREP, six Schemes viz., Scheme Nos. 27/1982-83,
28/1982-83, 25/1982-83, 21/1982-83, 22/1982-83 and
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14/1982-83 were executed and in those Schemes after
preliminary enquiry, it was detected that Junior
Engineer/agents of concerned Department/Agency have
misappropriated government money in the said Schemes and
as such the persons have committed an offence under
Sections 120-B, 420, 467, 468, 471(A) of the Indian Penal
Code (hereinafter referred to as "the IPC") and Section 5(2)
read with Section 5(1)(d) of the Prevention of Corruption Act,
1947 (hereinafter referred to as "the P.C. Act"). On the basis of
the said complaint, police lodged a First Information Report (in
short "the FIR") and registered a Vigilance P.S. Case No. 18 of
1983 under the aforesaid sections. According to the appellant,
his name was not mentioned in the FIR.
(c) On 14.09.1988, Special Case no. 87 of 1983 was initiated
in the Court of Special Judge (Vigilance), Patna. After
investigation, charge sheet was submitted wherein the name of
the appellant was figured for the first time as an accused, after
more than 5 years of registration of the FIR and he was charge
sheeted for offences under Sections 120-B, 420, 467, 468 and
477A of the IPC and under Section 5(2) read with Section
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5(1)(c)(d) of the P.C. Act. After examining the witnesses, the
Special Judge (Vigilance) Patna, by order dated 19.07.2004,
convicted the appellant for the offences punishable under the
aforesaid Sections and sentenced him rigorous imprisonment
for a period of two and a half years and to pay fine of Rs.
15,000/- having default clause.
(d) Aggrieved by the order passed by the Special Judge, the
appellant filed Criminal Appeal No. 600 of 2004 before the
High Court of Judicature at Patna. The learned Single Judge
of the High Court, by impugned judgment dated 28.07.2010,
dismissed the appeal upholding the order of conviction passed
by the trial Court but reduced the sentence from two and a
half years to one and a half years.
(e) Aggrieved by the said judgment, the appellant has
preferred this appeal by way of special leave before this Court.
4) Heard Mr. Nagendra Rai, learned senior counsel for the
appellant and Mr. Gopal Singh, learned counsel for the
respondents.
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5) While ordering notice on 11.04.2001, this Court confined
itself only to the question of sentence. In view of the same,
there is no need to traverse or discuss the facts leading to his
conviction. We have already noted that the appellant was
convicted under Sections 409, 420, 467, 468, 471, 477A and
120B of IPC and Section 5(2) read with Section 5(1)(c)(d) of the
P.C. Act by the Special Judge (Vigilance), Patna. The High
Court modified the sentence alone on appeal filed by the
appellant by reducing the substantive sentence imposed on
him to undergo RI for two and a half years under Sections 409
and 120B IPC to a period of RI for one and a half years.
Similarly, sentence to undergo RI for two and a half years
imposed under Sections 467, 468, 471 and 477A of the IPC
and Section 5(2) and Section 5(1)(c)(d) of the P.C. Act were
reduced to a period of RI for one and a half years.
6) Now, we have to consider whether the appellant has
made out a case for further reduction in the quantum of
sentence?
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7) Mr. Nagendra Rai, learned senior counsel, by drawing
our attention to the fact that the present appellant was not
named in the FIR and he was convicted nearly after 25 years
from the date of occurrence and as on date he is 71 years of
age submitted that since he had already undergone 6 months
imprisonment, the period undergone would be appropriate
sentence and prayed for reduction to that extent. On the
other hand, Mr. Gopal Singh submitted that it is not a fit case
for reduction of sentence. In any event, according to him, in
view of sub-Section 3, the imprisonment shall not be less than
1 year, hence it is not a fit case for reduction, even on the
sentence.
8) The only bar against the appellant insofar as reduction of
sentence is the minimum sentence prescribed in Section 5(3)
of the Act. The relevant proviso appended thereto reads as
under:-
"5. Criminal misconduct.
(1) XXX
(2) XXX
(3) Whoever habitually commits--
(i) an offence punishable under Section 162 or Section 163 of
the Indian Penal Code (45 of 1860), or
(ii) an offence punishable under Section 165A of the Indian
Penal Code,
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shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to
seven years, and shall also be liable to fine:
Provided that the court may, for any special reasons
recorded in writing, impose a sentence of imprisonment of
less than one year.
(4) XXX"
Inasmuch as, he was also convicted under Section 5(1)(c)(d)
and Section 5(2) in the normal circumstance, the court has to
impose minimum sentence of 1 year. However, proviso
appended to sub-Section 3 gives power to the court to impose
a sentence of imprisonment of less than 1 year for any special
reasons recorded in writing.
9) It is not in dispute that the occurrence related to period
1982-83. Even on 01.10.2003, he retired from the post of
Deputy Collector, Nalanda and stood convicted by the trial
Court as aforesaid only in 2004, i.e., after a long period of 21
years. As rightly pointed out by Mr. Nagendra Rai, he had
undergone the ordeal of facing trial anticipating uncertainty
about the nature of conviction for such a long period. It is
true that the appellant was not named in the FIR. However,
after a period of 5 years, when the prosecution filed a
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chargesheet, he was shown as 3rd accused. As rightly pointed
out by Mr. Rai, the appellant had reeled under the threat of
being convicted and sentenced for all these 21 years. Even the
High Court had taken more than 6 years to dispose of the
appeal. As on date, the appellant is 71 years of age and has
already undergone 6 months imprisonment. If we consider the
date of occurrence, 29 years have been passed now. There is
no record to show that the appellant was involved in other
criminal case. Considering the case of the prosecution,
namely, several illegalities and irregularities in execution of
NREP which is a Scheme formulated by the Government of
India, the fact that the occurrence relates to the year 1982-83,
the trial went for 21 years and ended in conviction in 2004,
the appellant retired from service even before conviction and
his appeal was kept pending in the High Court for nearly 6
years, taking note of his present age, namely, 71 years and
undergone 6 months imprisonment, we feel that ends of
justice would be met by modifying the sentence to the period
already undergone.
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10) In the light of the above discussion, while confirming the
conviction imposed on the appellant and having adverted to
special circumstances in the case on hand, the sentence alone
is modified to the extent, i.e., the period of imprisonment,
namely, 6 months undergone in prison as substantive
sentence. To this extent, the impugned order of the High
Court is modified. The appeal is allowed in part to the extent
mentioned above.
.................................................J.
(P. SATHASIVAM)
...............................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
JULY 21, 2011.
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