Ram Kumar vs State
2021 Latest Caselaw 1829 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR
 

 
Court No. - 90
 

 
Case :- CRIMINAL APPEAL No. - 344 of 1981
 

 
Appellant :- Ram Kumar
 
Respondent :- State
 
Counsel for Appellant :- Amresh Kumar Sharma, A. Kulshrestha, Havaldar Verma, S.N. Pandey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajit Singh,J.          

1. Heard the learned counsel for appellant, learned AGA appearing for the State and perused the record of this case. 

2. The prosecution story of this in brief is that on 20th June, 1978 one Suraj Mal moved a complaint against the present accused appellant Ram Kumar in writing  (Ext. Ka-13) before the Superintendent of Police (Vigilance), Meerut. It was mentioned in the said complaint that the accused appellant posted as operator at the public tube-well No. 52 H.G. in village Dehpa was habitual of accepting bribes from the farmers to irrigate their fields. Complainant's sugar cane (perhi) field measuring six bighas was not irrigated and it went dry. The tube well operator, the present accused appellant, was demanding Rs. 60/- as bribe from the complainant and the complainant gave the currency notes to the accused appellant who kept the same in his pocket after its verification and counting.

3. Further prosecution case is that the members of the trap party overheard the conversation going on in between the complainant and accused appellant. Inspector Chawala and and his other companions entered the Gher and the accused was surrounded. Mr. Chawala, after disclosing his identity to  the accused appellant, made the search of the accused's person and recovered Rs. 60/-  from the accused appellant. The currency notes of the recovered amount were the same which were given to the complainant to be given to the tube well operator (the present appellant) as bribe. The serial numbers of the currency notes were found exactly tallied with the memo, which is marked as Ext. Ka - 2. The currency notes along with the shirt of the accused wearing at that time were taken into custody by the concerned Inspector.

4. Thereafter, the accused as well as the complainant both were asked to put their hands into the liquid of sodium carbonate in two different glasses and the liquid turned red, which was sealed separately in two dry bottles. The recovery memo was prepared and marked as Ext. Ka - 3.  All the relevant formalities were done and First Information Report of this incident was lodged by the Inspector, which is marked as Ext. Ka-12. Thereafter, investigation of this matter was entrusted to Inspector Harpal Singh - P.W. 5 under the direction of S.P. (Vigilance), Meerut. He prepared the site plan of the place of occurrence, recorded the statements of the members of the trap party and applied for and obtained sanction from the concerned Executive Engineer to prosecute the accused appellant, the sanction letter is marked as Ext. Ka - 16.

5. The trial started and concluded into conviction and sentence of the accused appellant, vide the impugned judgment and order dated 30.1.1981.  By the impugned judgment and order the accused appellant had been convicted and sentenced to one year R.I. with a fine of Rs. 500/-  and in default of payment of fine, three months' further R.I.  Further, for the offence under Section 5(2)  Prevention of Corruption Act the accused appellant was convicted and sentenced to one year R.I. for the offence under Section 161 IPC with a fine of Rs. 500/-  and in default of payment of fine, three months' further R.I. It was also directed that both the sentence shall run concurrently.

6. The aforesaid judgment and order dated 30.1.1981, narrated above, has been challenged before this Court by means of the present appeal.

7. The learned counsel for the appellant submits that the incident is of the year 1978.  The appellant is now aged about 82 years and he is suffering from age related ailments.  For the last 42 years, the sword of punishment had been hanging over the head of the accused appellant. The appellant had been in imprisonment for about twenty days. Learned counsel has further submitted that he does not want to press this appeal on merits but wants to argue only on the quantum of sentence.

8. The learned AGA  has strongly opposed the submission made by the learned counsel for the appellant and he submits that the impugned judgment and order of the learned Trial Court is liable to be confirmed and the appeals deserves to be dismissed.

9. After having gone through the judgment and order assailed by this appeal and also going through the facts and circumstances of this case, it would not be out of context to have a glance on Section 5 of the Prevention of Corruption Act, 1947 which deals with criminal misconduct.

10. Section 5(2) deals with punishment, which reads as under:-

"5. Criminal misconduct.

(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."

11. Section 161 of IPC was omitted by the introduction of the Prevention of Corruption Act, 1988. The pre-amended proviso dealt with the offence of public servant taking gratification other than legal remuneration in respect of an official act. The punishment was:

"... .....imprisonment of either description for a term which may extend to three years, or with fine or with both."

12. Thus, as far as punishment under the old Section 161 of IPC is concerned, there is no mandatory minimum punishment. The question is whether the sentence could be reduced for any special reason. Under the old Prevention of Corruption Act, 1947, there is a mandatory minimum punishment of one year. It may extend to seven years. However, under the proviso, the court may, for special reasons, impose a sentence of imprisonment of less than one year.

13. 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.

14. 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. As we have noted above, the FIR was registered by the police in 1978. The appellant has suffered physical and mental agony of criminal trial and conviction for more than 40 years in the trap case involving a petty amount.

15. In Ashok Kumar v. State (Delhi Administration), 1980 (2) SCC 282, the commission of offence of theft was in 1971 and the Judgment of this Court was delivered in 1980. The conviction was under Section 411 of IPC. This Court having regard to the purpose of punishment and "the long protracted litigation", reduced the sentence to the period already undergone by the convict.

16. In Sharvan Kumar v. State of Uttar Pradesh, (1985) 3 SCC 658, the commission of offence had taken place in 1968 and the judgment was delivered in 1985. The conviction was under Section 467 and 471 of IPC. In that case also, the long delay in the litigation process was one of the factors taken into consideration by the Court in reducing the sentence to the period already undergone.

17. In Ajab and others v. State of Maharashtra, (1989) Supp. (1) SCC 601 also, the Hon'ble Apex had an occasion to examine the similar situation. The offence was committed in 1972 and this Court delivered the Judgment in 1989. The conviction was under Section 224 read with Section 395 of IPC. In that case also "passage of time was reckoned as a factor for reducing the sentence to the period already undergone". The Hon'ble Apex Court in that case, while reducing the substantive sentence, increased the fine holding that the same would meet the ends of justice.

18. In CRIMINAL APPEAL NO. 404 OF 2014: V.K. Verma Vs. CBI, decided on 14th February, 2014, the Hon'ble Apex Court has held in paragraphs - 15 and 16 thus:

"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.

Accordingly, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs.50,000/- is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled".

19. In the present case this Court finds that the appellant is now a senior citizen aged about 82 years. This Court has also been informed that he is not keeping good health and is suffering from age related ailments. The offence is of the year 1978. The accused has already served out twenty days' incarceration and he has suffered mental incarceration for about 42 years. Looking to the facts and circumstances of this case and also taking into consideration the ratio of the law laid down by the Hon'ble Apex Court as discussed above, this Court is of the firm view that certainly a case is made out for reducing the substantive sentence by enhancing the fine. However, no case is made out to interfere with the conviction of the accused appellant.

20. In the result, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs. 10,000/- is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of three months. On payment of fine, his bail bond will stand cancelled.

21. Let a copy of this judgment and order be transmitted to the learned District Judge, Meerut for compliance.

22. The record of the lower court be transmitted immediately to the lower court.

Order Date :- 2.2.2021

LBY