Ambi Ram vs State Of Uttarakhand

Ambi Ram ….Appellant(s)

VERSUS

State of Uttarakhand ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This 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

Signature Not Verified filed by the appellant herein. Digitally signed by ANITA MALHOTRA Date: 2019.02.05

2. A few facts need mention to appreciate the 17:38:28 IST Reason:

short controversy involved in this appeal.

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3. 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”).

4. 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/­.

5. 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.

6. The Sessions Judge, Pithoragarh, by order

dated 05.08.1991, found the case of the prosecution

proved beyond reasonable doubt and accordingly

2 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 one year and

to undergo rigorous imprisonment for a period of

three years under Section 161 IPC. Both the

sentences were to run concurrently.

7. 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

years to one year and in default of payment of fine

3 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.

8. The appellant(accused) felt aggrieved and has

filed this appeal by way of special leave in this

Court.

9. Heard Mr. Arun K. Sinha, learned counsel for

the appellant(accused) and Mr. Ashutosh Kumar

Sharma, learned counsel for the respondent(State).

10. 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.

11. According to him, having regard to the fact

that the appellant is now aged around 78 years and

4 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.

12. 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.

13. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

5 are inclined to allow the appeal in part and reduce

the sentence as indicated below.

14. 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.”

15. 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.

16. 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.

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17. 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.

18. 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.

19. In his concurring opinion, Justice T.S Thakur

(as his Lordship then was and later CJI) in his

7 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 recognised the factors mentioned earlier as being relevant to the question of

8 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 7½ 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.”

20. 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

9 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;

Seventhly, the bribe amount was Rs.1200/­; and

lastly, in the last 34 years, he has suffered immense

trauma, mental agony and anguish.

21. The aforesaid 8 reasons which, in our view, are

the special reasons satisfy the requirements of

proviso to Section 5 (2) 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.

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22. 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.

23. 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.

24. 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/­.

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25. In view of the foregoing discussion, the appeal

succeeds and is partly allowed. The impugned order

is modified to the extent indicated above.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI] New Delhi;

February 05, 2019

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