Smt.Nirmala Devi vs State Of U.P.
2021 Latest Caselaw 2478 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 90
 
AFR
 

 
Case :- CRIMINAL APPEAL No. - 2929 of 1981
 

 
Appellant :- Smt. Nirmala Devi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- B.P.Gupta, A.N. Mulla, Atul Pandey, I.N.
 
Mulla, Jitendra Pal Singh, R.P.Tiwari, Rahul Misra, S.P.Tiwari
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajit Singh,J.

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

This criminal appeal has been preferred against the judgment and order dated 19.11.1981 passed by IInd Additional Sessions Judge (Special Judge), Moradabad in Sessions Trial No. 460 of 1979 convicting the appellant under Section 161 of I.P.C. and sentencing her to one month's Rigorous Imprisonment and further convicting and sentencing her under Section 5(2) of the Prevention of Corruption Act to one month's Rigorous Imprisonment (under the impugned judgment and order). Both the above sentences were directed to run concurrently.

The prosecution story of this case in brief is that in the month of June 1979, the accused appellant was posted as Medical Officer in District Board's Janana Hospital in Raja-Ka-Sahaspur. It is next alleged that one Lokesh Pal Singh took his mother Smt. Shanti Devi to the said hospital and presented her before the accused appellant for treatment. It has been further alleged that the said ailing woman was medically examined by the accused appellant and after examining her, the appellant made a demand of Rs. 50/- as an illegal gratification for her treatment, at which Lokesh Pal Singh (son of the ailing woman) urged that there is no question of gratification in the Government hospitals as all the treatments there are available free of cost. Then, he was told that without charging money, the appellant never treated the patients. It was also told that even in big hospitals no treatment is done without charging the extra money. The complainant Lokesh Pal Singh was not having any money at that time. He showed his inability to fulfill the demand of the accused appellant and desired some time to arrange money to fulfill the illegal demand of the accused appellant and returned back.

It was also stated by the prosecution that the accused appellant did show her willingness to accept even Rs. 40/- for doing the treatment. Thereafter, a complaint was moved by Lokesh Pal Singh against the accused appellant in writing (Ext. Ka-1) before the Deputy Superintendent of Police, Anti-Corruption Department, Moradabad and in the said complaint, it was mentioned that the accused appellant was habitual of accepting bribes from the attendants of the patients who came to her for treatment.

Further prosecution case is that since the complainant wanted to get the accused appellant arrested red-handed, he was required by the Dy. S.P. To meet Ram Autar Tyagi, Inspector (Anti-Corruption), who recorded the statement of the complainant on 6.6.1979. The complainant was not having the amount to be offered to the lady doctor (appellant), he promised to come back with money on 07.06.1979 and the said Inspector along with other officials as well as the complainant with his mother Smt. Shanti reached at 9:00 A.M. at Octroi Post, Kundarki and at that place complainant Lokesh Pal Singh produced two currency notes of Rs. 20/- each which were treated with phenolphthalein powder by the driver Khem Singh and Lokesh Pal Singh was directed to pay those very notes to the lady doctor on demand. The number of the currency notes meant for being offered to the lady doctor (appellant) were noted in the Fard and the entire police party proceeded to the Janana Hospital, Raja Ka Sahaspur under PS Bilari, District - Moradabad. The jeep was parked a furlong before the Hospital. The party consisted of Inspector Ram Autar Tyagi, H.C. Km. Praveen Siddiqi and the two public witnesses and the other employees. It is further alleged that the accused was present in the room and as a matter of precaution Constable Km. Praveen Siddiqi was shown to the accused (lady doctor) for certain ailment though she was not suffering from any disease. Her name was entered by the accused in the outdoor register of the Hospital and was given some tablets and a prescription by the accused. Thereafter, it is alleged that after seeing Lokesh Pal Singh, the accused enquired from him if he had brought the money and his reply was in affirmative.

It is further alleged by the prosecution that immediately on demand, the two currency notes of Rs. 20/- each were handed over by complainant to the accused and she kept them in her left palm. Thereafter, the Inspector Shri R.A. Tyagi gave his introduction and in presence of the witnesses, got the two currency notes recovered from the left 'Fist/Mutthi' of the accused through H.C. Km. Praveen Siddiqi. The numbers of the said notes were compared with the numbers of the notes noted down in the memo earlier and were sealed in an envelope and wash of the accused's hand was taken in presence of the witnesses with the solution of sodium corbonate. Its colour turned pink (gulabi) and the same was filled in a bottle and then sealed. The First Information Report was lodged against the accused appellant at 11:30 A.M. by the said Ram Autar Tyagi, Inspector giving all the details.

A case was registered against the accused and after the investigation, charge sheet was submitted against her on 27.08.1979 with due permission for her prosecution. The accused pleaded not guilty and claimed to be tried.

After the completion of the trial proceedings, the accused appellant was found guilty of the charges levelled upon her and accordingly, she was convicted and sentenced by the impugned judgment and order as noted above.

Hence, the present appeal.

The learned counsel for the appellant submits that the incident is of the year 1979. The appellant is a lady and now she is aged about more than 70 years and is suffering from age related ailments. For the last 41 years, the sword of punishment had been hanging over her head. It is also submitted by the learned counsel that the appellant had suffered mental incarceration since the very inception of this incident. 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.

However, the learned counsel for appellant has submitted that in 1982 Raj Cri C 120 (12), 1980 Raj Cri C 9(10), a sentence of imprisonment under Section 161 was set aside by the High Court as the accused was above 60 years of age, had retired and the bribe amount was only Rs. 5/- and a sentence of fine was imposed.

The learned counsel for appellant has also argued that the question of sentence must in each case depend upon a variety of considerations and is a matter primarily in the discretion of the Court which passes a sentence and in support of his this argument, the learned counsel cites the decision of the Apex Court reported in 1979 CriLR (SC) 182 (183).

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

After having gone through the judgment and order assailed by this appeal and having perused 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.

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."

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."

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.

In imposition of punishment, the concern of the court is with respect to 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 of 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.

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 arriving at a decision on the quantum of sentence to be imposed. As we have noted above, the F.I.R. was registered by the police in the year 1979 and the appellant has suffered physical and mental agony of criminal trial and conviction for more than 41 years in the trap-case involving a petty amount of Rs. 40/-.

In Ashok Kumar Vs. State (Delhi Administration), 1980 (2) SCC 282, the commission of offence of theft was in 1971 and the judgment of the Court was delivered in 1980. The conviction was under Section 411 of I.P.C. The Hon'ble Apex Court having regard to the purpose of punishment and "the long protracted litigation", reduced the sentence to the period already undergone by the convict.

In Sharvan Kumar Vs. 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.

In Ajab and others Vs. State of Maharashtra, (1989) Supp. (1) SCC 601 also, the Hon'ble Apex Court had an occasion to examine a similar situation. The offence was committed in 1972 and the 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.

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".

(emphasis supplied)

In the present case, this Court finds that the appellant is a lady, who is now a senior citizen aged about more than 70 years. This Court has also been informed that she is not keeping good health and is suffering from age related ailments. The offence pertain to the year 1979 and since she has been suffering mental incarceration for about more than 40 years. After conviction, she was on interim bail and thereafter, she was directed to be released on bail pending this appeal, vide order dated 14.12.1981 of this Court.

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.

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. 5,000/- is imposed as fine. The appellant shall deposit the fine within six months from the date of this judgment and in case of default in depositing the fine, she shall undergo imprisonment for a period of one month. On payment of the fine of Rs.5,000/-, her bail bonds will stand cancelled.

Let a copy of this judgment and order be sent to the learned District Judge, Moradabad for compliance.

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

Order Date :- 18.2.2021

R./