caselaws
Supreme Court of India
K.P. Singh vs State (N.C.T) Of Delhi on 28 September, 2015Author: V Gowda
Bench: T.S. Thakur, V. Gopala Gowda
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
Comments