Munilal Mochi vs State Of Bihar & Anr

Munilal Mochi .... Appellant(s)

Versus

State of Bihar & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the common final

judgment and order dated 28.07.2010 passed by the learned

Single Judge of the High Court of Judicature at Patna in

Criminal Appeal (SJ) No. 600 of 2004 which was filed by the

appellant herein along with Criminal Appeal (SJ) Nos. 576,

595, 609 and 625 of 2004 whereby the High Court dismissed

the appeal upholding the order of conviction passed by the

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trial Court and reduced the sentence from two and a half years

to one and a half years.

3) Brief facts:

(a) Several schemes of National Rural Employment

Programme (in short "NREP") executed between the years

1982-83 by the officers posted at Piro, District Ara with the

assistance of some executing agents/agencies came under the

scan of the Vigilance Department. Enquiries including re-

measurement of the Schemes/works executed under these

Schemes revealed that some local officers posted in the Block

in connivance with agents appointed for few Schemes

fraudulently withdrew and misappropriated the Government

funds in relation to those schemes and created official

records/documents to cover up such defalcation.

(b) On 14.09.1983, one Hem Raj Prasad, Dy. S.P. Cabinet

(Vigilance) Department, Government of Bihar, Patna, made a

written complaint before the Office-in-charge, Vigilance Police

Station, Patna, alleging that in Piro Block of District Ara,

under NREP, six Schemes viz., Scheme Nos. 27/1982-83,

28/1982-83, 25/1982-83, 21/1982-83, 22/1982-83 and

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14/1982-83 were executed and in those Schemes after

preliminary enquiry, it was detected that Junior

Engineer/agents of concerned Department/Agency have

misappropriated government money in the said Schemes and

as such the persons have committed an offence under

Sections 120-B, 420, 467, 468, 471(A) of the Indian Penal

Code (hereinafter referred to as "the IPC") and Section 5(2)

read with Section 5(1)(d) of the Prevention of Corruption Act,

1947 (hereinafter referred to as "the P.C. Act"). On the basis of

the said complaint, police lodged a First Information Report (in

short "the FIR") and registered a Vigilance P.S. Case No. 18 of

1983 under the aforesaid sections. According to the appellant,

his name was not mentioned in the FIR.

(c) On 14.09.1988, Special Case no. 87 of 1983 was initiated

in the Court of Special Judge (Vigilance), Patna. After

investigation, charge sheet was submitted wherein the name of

the appellant was figured for the first time as an accused, after

more than 5 years of registration of the FIR and he was charge

sheeted for offences under Sections 120-B, 420, 467, 468 and

477A of the IPC and under Section 5(2) read with Section

3 5(1)(c)(d) of the P.C. Act. After examining the witnesses, the

Special Judge (Vigilance) Patna, by order dated 19.07.2004,

convicted the appellant for the offences punishable under the

aforesaid Sections and sentenced him rigorous imprisonment

for a period of two and a half years and to pay fine of Rs.

15,000/- having default clause.

(d) Aggrieved by the order passed by the Special Judge, the

appellant filed Criminal Appeal No. 600 of 2004 before the

High Court of Judicature at Patna. The learned Single Judge

of the High Court, by impugned judgment dated 28.07.2010,

dismissed the appeal upholding the order of conviction passed

by the trial Court but reduced the sentence from two and a

half years to one and a half years.

(e) Aggrieved by the said judgment, the appellant has

preferred this appeal by way of special leave before this Court.

4) Heard Mr. Nagendra Rai, learned senior counsel for the

appellant and Mr. Gopal Singh, learned counsel for the

respondents.

4 5) While ordering notice on 11.04.2001, this Court confined

itself only to the question of sentence. In view of the same,

there is no need to traverse or discuss the facts leading to his

conviction. We have already noted that the appellant was

convicted under Sections 409, 420, 467, 468, 471, 477A and

120B of IPC and Section 5(2) read with Section 5(1)(c)(d) of the

P.C. Act by the Special Judge (Vigilance), Patna. The High

Court modified the sentence alone on appeal filed by the

appellant by reducing the substantive sentence imposed on

him to undergo RI for two and a half years under Sections 409

and 120B IPC to a period of RI for one and a half years.

Similarly, sentence to undergo RI for two and a half years

imposed under Sections 467, 468, 471 and 477A of the IPC

and Section 5(2) and Section 5(1)(c)(d) of the P.C. Act were

reduced to a period of RI for one and a half years.

6) Now, we have to consider whether the appellant has

made out a case for further reduction in the quantum of

sentence?

5 7) Mr. Nagendra Rai, learned senior counsel, by drawing

our attention to the fact that the present appellant was not

named in the FIR and he was convicted nearly after 25 years

from the date of occurrence and as on date he is 71 years of

age submitted that since he had already undergone 6 months

imprisonment, the period undergone would be appropriate

sentence and prayed for reduction to that extent. On the

other hand, Mr. Gopal Singh submitted that it is not a fit case

for reduction of sentence. In any event, according to him, in

view of sub-Section 3, the imprisonment shall not be less than

1 year, hence it is not a fit case for reduction, even on the

sentence.

8) The only bar against the appellant insofar as reduction of

sentence is the minimum sentence prescribed in Section 5(3)

of the Act. The relevant proviso appended thereto reads as

under:-

"5. Criminal misconduct.

(1) XXX

(2) XXX

(3) Whoever habitually commits--

(i) an offence punishable under Section 162 or Section 163 of

the Indian Penal Code (45 of 1860), or

(ii) an offence punishable under Section 165A of the Indian

Penal Code,

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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.

(4) XXX"

Inasmuch as, he was also convicted under Section 5(1)(c)(d)

and Section 5(2) in the normal circumstance, the court has to

impose minimum sentence of 1 year. However, proviso

appended to sub-Section 3 gives power to the court to impose

a sentence of imprisonment of less than 1 year for any special

reasons recorded in writing.

9) It is not in dispute that the occurrence related to period

1982-83. Even on 01.10.2003, he retired from the post of

Deputy Collector, Nalanda and stood convicted by the trial

Court as aforesaid only in 2004, i.e., after a long period of 21

years. As rightly pointed out by Mr. Nagendra Rai, he had

undergone the ordeal of facing trial anticipating uncertainty

about the nature of conviction for such a long period. It is

true that the appellant was not named in the FIR. However,

after a period of 5 years, when the prosecution filed a

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chargesheet, he was shown as 3rd accused. As rightly pointed

out by Mr. Rai, the appellant had reeled under the threat of

being convicted and sentenced for all these 21 years. Even the

High Court had taken more than 6 years to dispose of the

appeal. As on date, the appellant is 71 years of age and has

already undergone 6 months imprisonment. If we consider the

date of occurrence, 29 years have been passed now. There is

no record to show that the appellant was involved in other

criminal case. Considering the case of the prosecution,

namely, several illegalities and irregularities in execution of

NREP which is a Scheme formulated by the Government of

India, the fact that the occurrence relates to the year 1982-83,

the trial went for 21 years and ended in conviction in 2004,

the appellant retired from service even before conviction and

his appeal was kept pending in the High Court for nearly 6

years, taking note of his present age, namely, 71 years and

undergone 6 months imprisonment, we feel that ends of

justice would be met by modifying the sentence to the period

already undergone.

8 10) In the light of the above discussion, while confirming the

conviction imposed on the appellant and having adverted to

special circumstances in the case on hand, the sentence alone

is modified to the extent, i.e., the period of imprisonment,

namely, 6 months undergone in prison as substantive

sentence. To this extent, the impugned order of the High

Court is modified. The appeal is allowed in part to the extent

mentioned above.

.................................................J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

JULY 21, 2011.

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