Maya Ram Bhatt vs State Of U.P. And Anr.
2019 Latest Caselaw 4852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 80
 

 
Case :- CRIMINAL APPEAL No. - 1266 of 2013
 
Appellant :- Maya Ram Bhatt
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Binod Kumar Jha,J.S.Pandey,Jadu Nandan Yadav,Pranvesh
 
Counsel for Respondent :- Govt. Advocate,Amit Mishra,Devendra Kumar,Gyan Prakash,Nazrul Islam Jafri,Pranay Krishna
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Heard Sri Jadu Nandan Yadav, learned counsel for the appellant, Sri Jitendra Prasad Mishra, Advocate holding brief of Sri Gyan Prakash, learned counsel appearing on behalf of C.B.I., Sri Manu Raj Singh and Smt. Alpana Singha, learned A.G.A. for the State and perused the record.

2. This appeal has been preferred against the judgment and order of conviction dated 18.02.2013, passed by Special Judge, Prevention of Corruption Act (C.B.I.), Ghaziabad, in Special Case No. 2 of 2005, R.C. No. 6(S)2001, under Sections 120B, 419, 420, 467, 468, 471, 409, 411 I.P.C. and Section 13(2) read with Section 13(1)(D) of the Prevention of Corruption Act, Police Station Sector 24 Noida, District Gautam Budh Nagar, whereby the accused-appellant was sentenced for the offence under section 120B I.P.C. for three years rigorous imprisonment and Rs. 3 lakhs fine, under section 419 read with Section 120B I.P.C. for two years rigorous imprisonment and Rs. 5 lakhs fine, under section 420 read with Section 120B I.P.C. for five years rigorous imprisonment and Rs. 5 lakhs fine, under section 467 read with Section 120B I.P.C. for seven years rigorous imprisonment and Rs. 7 lakhs fine, under section 468 read with Section 120B I.P.C. for five years rigorous imprisonment and Rs. 5 lakhs fine, under section 471 read with Section 120B I.P.C. for three years rigorous imprisonment and Rs. 2 lakhs fine, under section 409 read with Section 120B I.P.C. for seven years rigorous imprisonment and Rs. 5 lakhs fine, under section 411 read with Section 120B I.P.C. for two years rigorous imprisonment and Rs. 5 lakhs fine and under section 13(2) read with Section 13(1)(D) of the Prevention of Corruption Act for seven years rigorous imprisonment and Rs. 5 lakhs fine. The default sentence in lieu of fine against all the offences, if added together will be 61 months additional imprisonment. The learned trial court has further directed that all the sentences will run concurrently.

3. During the course of argument, learned counsel for the accused-appellant has confined his argument to the quantum of sentence and has submitted that the accused-appellant has been in jail since 18.02.2013. It has also been submitted by the learned counsel for the accused-appellant that prior to that the accused-appellant has been in jail for two years and as such, he has submitted that against the maximum sentence of seven years rigorous imprisonment, the accused-appellant has already passed the sentence and he has further passed the sentence of imprisonment of about 31 months and 20 days and only remaining sentence in lieu of fine has to be observed. In support of the said contention, learned counsel for the accused-appellant has drawn attention of this Court on the certificate issued by Jail Superintendent, Ghaziabad, which has been filed at page no. 13 of the second bail application and according to which the substantive sentence of accused-appellant is over on 02.10.2016 and since 03.10.2016, he is undergoing the default sentence in lieu of fine. The default sentence is to end on 02.11.2021. As such, the whole term of imprisonment, even in lieu of fine has to end after about two and half years. Therefore, the learned counsel for the accused-appellant has requested that either the accused-appellant should be released on undergone or substantial reduction in sentence may be made for the benefit of the accused-appellant, so that slight early release may be insured.

4. Learned counsel appearing on behalf of C.B.I. as well as learned A.G.A. has submitted that the offence against the accused-appellant was fully established on the basis of evidence produced before the court below but if the sentence awarded to him is reduced slightly, he would have no objection.

5. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

6. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:

"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."

7. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-

"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."

8. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

9. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.

10. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

11. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.

12. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

13. In view of the above, it is clear that in our country the reformative and corrective approach has been adopted in criminal justice administration. There is nothing on record to show that the accused-appellant is incapable of being reformated. The accused-appellant is in jail since 18.02.2013 continuously. Every convict is entitled for the advantage of reformative and corrective jurisprudence.

14. Looking to the long incarceration in jail, if the default sentence of the accused-appellant under section 120B I.P.C. is reduced from six months to four months, under section 419 read with Section 120B I.P.C. is reduced from three months to two months, under section 420 read with Section 120B I.P.C. is reduced from eight months to five months, under section 467 read with Section 120B I.P.C. is reduced from twelve months to eight months, under section 468 read with Section 120B I.P.C. is reduced from eight months to five months, under section 471 read with Section 120B I.P.C. is reduced from five months to three months, under section 409 read with Section 120B I.P.C. is reduced from eight months to five months, under section 411 read with Section 120B I.P.C. is reduced from three months to one months and under section 13(2) read with Section 13(1)(D) of the Prevention of Corruption Act is reduced from eight months to five months, the ends of justice would be subserved.

15. In view of the above, the conviction is upheld and the default sentence of the accused-appellant under section 120B I.P.C. is reduced from six months to four months, under section 419 read with Section 120B I.P.C. is reduced from three months to two months, under section 420 read with Section 120B I.P.C. is reduced from eight months to five months, under section 467 read with Section 120B I.P.C. is reduced from twelve months to eight months, under section 468 read with Section 120B I.P.C. is reduced from eight months to five months, under section 471 read with Section 120B I.P.C. is reduced from five months to three months, under section 409 read with Section 120B I.P.C. is reduced from eight months to five months, under section 411 read with Section 120B I.P.C. is reduced from three months to one months and under section 13(2) read with Section 13(1)(D) of the Prevention of Corruption Act is reduced from eight months to five months.

16. With the above modification, the appeal is accordingly disposed of finally.

17. Office is directed to send the certified copy of this judgment along with lower court record to the court concerned for information and necessary action.

Order Date :- 22.5.2019

sailesh