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Thursday, 7 February 2019

Long Pendency Amounts To A Special Reason For Imposing Lesser Penalty In Corruption Case Involving Meager Bribe Amount: SC

To begin with, it has to be said right at the outset that in a rare departure from the past, the Supreme Court has just recently in a notable case titled Ambi  Ram v State of Uttarakhand in Criminal Appeal No. 1723 of 2009 dated February 5, 2019 has taken a lenient view in a corruption case involving meager bribe amount on the ground that long pendency amounts to a special reason for imposing lesser penalty. This landmark, latest and laudable judgment authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari has reduced punishment imposed on a man who was convicted for receiving a bribe of Rs. 1200 in the year 1985 to ‘period already undergone’. It must be noted that the counsel for the accused vociferously contended in front of the Apex Court that he is now aged around 78 years and is suffering from heart ailment and deserves leniency and his contention was accepted also!

                                      First and foremost, the ball is set rolling in para 1 in which it is pointed out that, “The appeal is filed against the final judgment and order dated 14.05.2009 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 258 of 2001 (Old No. 1518/1991) whereby the High Court partly allowed the appeal filed by the appellant herein.”

                                   To be sure, para 2 then illustrate that, “A few facts need mention to appreciate the short controversy involved in this appeal.” Starting from the scratch, para 3 then points out that, “The appellant was working as “Kanoongo/Patwari” at Didihat, Uttarakhand. He was prosecuted for commission of the offences punishable under Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as “the PC Act”) read with Section 161 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).”

                              Needless to say, it is then brought out in para 4 that, “The charge against the appellant was that he assured one Gopal Singh that he would not arrest him nor would implicate him in one pending criminal case, if he pays him Rs. 1200/-.” What para 5 then brings out is that, “It was the case of the prosecution that the appellant while accepting the illegal gratification of Rs. 1200/- from Gopal Singh on 30.09.1985 was caught by S.P. (Vigilance) in a trap arranged for this purpose at the behest of Gopal Singh.”

                                    As it turned out, para 6 then reveals that, “The Sessions Judge, Pithoragarh, by order dated 05.08.1991, found the case of the prosecution proved beyond reasonable doubt and accordingly convicted the appellant for the offences punishable under Section 5(2) of the PC Act read with Section 161 IPC and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5000/- under Section 5(2) of the PC Act and in default of payment of fine, to undergo further rigorous imprisonment for a period of three years under Section 161 IPC. Both the sentences were to run concurrently.”

                                        To put things in perspective, it is then illustrated in para 7 that, “The appellant felt aggrieved by his conviction and sentence and filed an appeal in the High Court. By impugned order, the High Court partly allowed the appeal. The High Court maintained the conviction insofar as it pertains to the offence punishable under Section 5(2) of the PC Act but interfered in quantum of sentence awarded and accordingly reduced the jail sentence from four year to one year and in default of payment of fine to further undergo rigorous imprisonment for three months. So far as the offence punishable under Section 161 IPC is concerned, the High Court upheld the conviction but reduced the sentence from three years to one year. Both the sentences were to run concurrently.”

                                      It is a no-brainer that the accused felt aggrieved by the punishment inflicted on him. So no prizes for guessing that he decided to go in for appeal. As has been pointed out in para 8 that, “The appellant (accused) felt aggrieved and has filed this appeal by way of special leave in this Court.”

                                  By the way, it is then pointed out in para 9 that, “Heard Mr. Arun K. Sinha, learned counsel for the appellant (accused) and Mr. Ashutosh Kumar Sharma, learned counsel for the respondent (State).” It is then specifically brought out in para 10 that, “Learned counsel for the appellant (accused) has argued only one point. He did not question the legality of the conviction. All that he argued was that the jail sentence awarded to the appellant be reduced.”

                                        Going forward, para 11 then while referring to appellant pleading reduction of sentence points out that, “According to him, having regard to the fact that the appellant is now aged around 78 years and suffering from heart ailment and further the incident is of the year 1985 and, in the meantime, 34 years have elapsed and lastly the appellant has undergone around one month and 10 days imprisonment, this Court should exercise its powers under proviso to Section 5(2) of the PC Act and reduce the jail sentence from one year to what is undergone by the appellant, i.e., 1 month and 10 days as his total jail sentence and may, if considered proper, instead enhance the fine amount.”

                                  Of course, para 12 then states that, “Learned counsel for the respondent, in reply, supported the impugned order and contended that having regard to the factual circumstances, no case of further reduction in the sentence awarded by the High Court is made out and, therefore, the appeal is liable to be dismissed.” The Bench then goes on to add in para 13 that, “Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and reduce the sentence as indicated below.”

                              For esteemed readers exclusive benefit, it must be mentioned here that para 14 then states that, “Section 5(2) of the PC Act reads as under:

“(2) Any public servant who commits criminal misconduct 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”.”

                                     Truth be told, para 15 then makes it absolutely clear that, “Reading of Section 5(2) of the PC Act shows that it provides that any public servant, who commits criminal misconduct, 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.”

                                   Be it noted, it is then clarified in para 16 that, “The proviso then empowers the Court to impose sentence of imprisonment of less than one year provided any special reasons are recorded in writing in support of imposing such reduce sentence of less than one year.”

                             More importantly, para 17 then makes it crystal clear that, “It is, therefore, clear that the Court is empowered to impose a sentence, which may vary from 1 year to 7 years with fine. However, in a particular case, the Court finds that there are some special reasons in favour of the accused then the Court is empowered to impose imprisonment of less than one year provided those special reasons are set out in writing in support of imposing sentence less than one year. So far as imposing of fine is concerned, it is mandatory while imposing any jail sentence. How much fine should be imposed depend upon the facts of each case.”

                                  No doubt, it is not at all easy for any Judge to award imprisonment of less than one year. This is all the more so because the Judge is then required to state the special reasons in writing in support of imposing sentence of less than one year. If the concerned Judge fails to give adequate reasons for reducing the sentence below the minimum level then he/she can only land himself/herself in trouble and in a piquant situation and this no sensible Judge would ever like to find himself/herself in!

                               It would be imperative to mention here that it is then pointed out in para 18 that, “In the case of K.P. Singh vs State (NCT) of Delhi, (2015) 15 SCC 497, this Court on somewhat similar facts considered the question as to what factors/circumstances should be taken into consideration for reducing the jail sentence.” It is then pointed out in para 19 that, “In his concurring opinion, Justice T.S. Thakur (as his Lordship then was and later CJI) in his distinctive style of writing in detail examined this question in the light of law laid down by this Court in earlier cases on the subject and held as under:

“10. 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 the 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 recognized the factors mentioned earlier as being relevant to the question of determining the sentence. The decisions of this Court on the subject are a legion. Reference to some only should, however, suffice.

19. 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 (sic incarceration) 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 7 ½ months imprisonment 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”.”     

                                    To say the least, while justifying its reduction of sentence with logical reasons, the Bench then very brilliantly and commendably observes in para 20 that, “Keeping in view the aforementioned statement of law laid down by this Court when we examine the facts of the case at hand, we find that Firstly, the incident is of the year 1985; Secondly, this case is pending for the last 34 years; Thirdly, the appellant has now reached to the age of 78 years; Fourthly, he is suffering from heart ailment, as stated by the learned counsel for the appellant, and is also not keeping well; Fifthly, he has so far, during the trial and after suffering conviction, undergone total jail sentence of one month and 10 days; Sixthly, he has been on bail throughout for the last 34 years and did not indulge in any criminal activities nor breached any conditions of the bail granted to him; Seenthly, the bribe amount was Rs 1200/-; and lastly, in the last 34 years, he has suffered immense trauma, mental agony and anguish.”

                                     It cannot be lost on us that it is then pointed out in para 21 that, “The aforesaid 8 reasons which, in our view, are the special reasons satisfy the requirements of proviso to Section 5(2) of the PC Act. This Court, therefore, invoke the powers under proviso to Section 5(2) of the PC Act and accordingly alter the jail sentence imposed on the appellant by the two Courts below and reduce it to “what is already undergone by the appellant”, i.e., 1 month and 10 days.”

                                 Simply put, para 22 then further states that, “In other words, this Court alter the jail sentence of the appellant and award him “what is already undergone by him” and at the same time enhances the fine amount of Rs. 3000/- to Rs. 10,000/- to meet the ends of justice.” It is then clarified in para 23 that, “The appellant is, therefore, now not required to undergo any more jail sentence. However, in case he fails to deposit a fine amount of Rs. 10,000/- after adjusting the sum of Rs 3000/-, if already paid by the appellant, he will have to undergo simple imprisonment for a period of one month.”  

                     Moving ahead, it is then held in para 24 that, “If the appellant deposits the fine amount of Rs. 10,000/- within 3 months from today, he will not be required to undergo any default jail sentence. If he has already deposited Rs. 3000/- then he will only deposit Rs. 7000/-.” Lastly, para 25 then concludes by stating that, “In view of the foregoing discussion, the appeal succeeds and is partly allowed. The impugned order is modified to the extent indicated above.”

                                               To conclude, it is a landmark, latest and laudable judgment which clearly lays down  that long pendency certainly amounts to a special reason for imposing lesser penalty in corruption cases involving meager bribe amount! Besides this, it also convincingly cites eight cogent reasons for reducing the penalty which are valid and strong reasons for the same! Every Judge and every lawyer as also every person interested in reading about corruption cases must read this noteworthy judgment which is certainly commendable and classic!



Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.