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Permissibility Ratio |
On 28.01.2008,this Court consisting of three Hon'ble Judges issued notice in this matter confining to the quantum of sentence only FAC |
In pursuance of the same,we permitted Mr FAC |
Rangaramanujam,learned senior counsel for the appellant to address his arguments confining to quantum of sentence imposed on the appellant-accused FAC |
As stated in the narration of facts,the appellant was convicted u/s.7 of the Act for which he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/-,in default,simple imprisonment for one month FAC |
He was also convicted for the offence under S.13(1)(d)(ii) read with S.13(2) of the Act and sentenced to undergo rigorous imprisonment for one year and fine of Rs.500/-,in default,simple imprisonment for one month FAC |
The trial Court ordered that both the sentences of imprisonment shall run concurrently FAC |
The said conviction and sentence was affirmed by the High Court FAC |
If we confine ourselves to the limited extent of notice dated 28.01.2008,we have to hear both sides only on the quantum of sentence FAC |
However,Mr.Rangaramanujam,learned senior counsel for the appellant by drawing our attention to the recent judgment of this Court in Yomeshbhai Pranshankar Bhatt vs ARG |
State of Gujarat,(2011) 6 SCC 312 2011 Indlaw SC 370,submitted that in spite of limited notice,this Court,while exercising jurisdiction u/art.142 of the Constitution,in order to do complete justice while hearing the matter finally can go into the merits of the orders passed by the trial Court and the High Court ARG |
In the reported case,the appeal was against the concurrent finding of both the courts convicting the appellant u/s.302 IPC and sentencing him to suffer imprisonment for life ARG |
At the SLP stage,this Court,by order dated 27.07.2009,issued notice confined only to the question as to whether the petitioner was guilty of commission of an offence under any of the parts of S.304 Indian Penal Code,1860 (in short 'IPC') and not u/s.302 IPC.Similar request was made before the Bench that the appellant w... |
This Court,referred to the Supreme Court Rules,1966 which have been framed u/art.145 of the Constitution and also considered scope of its power u/art.142 as well as Order 47 ARG |
Rule 6 of the Code of Civil Procedure,1908 ARG |
in short 'the Code).While deciding the said question,the Bench has also considered the scope of S.100 of the Code for entertaining the second appeal ARG |
It further shows that the Court considered the plea of the appellant therein for acquittal despite the fact that the notice was limited in terms of the order dated 27.07.2009.It is relevant to point out that the Bench in para 18,clarified the position and reopened the case in its entirety even though notice was issued ... |
After permitting the appellant therein to argue the case for acquittal on merits,it observed: " .......We,however,make it clear that this cannot be a universal practice in all cases ARG |
The question whether the Court will enlarge the scope of its inquiry at the time of final hearing depends on the facts and circumstances of the case ARG |
Since in the facts of this case,we find that the appellant should be heard on all points,we have come to the aforesaid conclusion ARG |
Emphasis supplied STA |
It is clear that the Bench itself has clarified that they are not laying down the law that in spite of issuing notice confining to a particular aspect (in the case on hand -"quantum of sentence") the parties are entitled to urge all points and re-open the case as if they are free to do the same without any restriction ... |
As a matter of fact,the last sentence in para 18 makes it clear that in the facts and circumstances of that case,they permitted the appellants to urge all points on merits Ratio |
In the case on hand,it is to be noted that on appreciation of oral and documentary evidence led in by the prosecution and the defence and on appreciation of entire materials,the court of first instance i.e.the trial Court convicted the appellant and sentenced him as mentioned above Ratio |
The High Court,as an appellate Court,once again analysed all the material,discussed the oral and documentary evidence and finding that the prosecution had proved the guilt of the accused beyond reasonable doubt concurred with the conclusion arrived at by the trial Court and dismissed the appeal of the appellant Ratio |
Inasmuch as both the courts have thoroughly discussed the oral and documentary evidence with reference to the charges leveled against the appellant and in view of the limited order dated 28.01.2008 by this Court issuing notice confining to quantum of sentence only and even applying the analogy enunciated in Yomeshbhai ... |
Quantum of sentence Ratio |
Whether requires any reduction Ratio |
Mr ARG |
Rangaramanujam,learned senior counsel for the appellant submitted that inasmuch as the alleged incident took place on 14.11.1997 and 14 years have elapsed since then,the amount of Rs.200/-said to have been received by the appellant is trivial in nature and also of the fact that due to the said conviction and sentence h... |
He fairly admitted that out of the maximum period of one year,the appellant had served only 52 days in prison ARG |
With this factual position,let us consider whether the request of the learned senior counsel for the appellant is to be accepted and sentence be reduced to the period already undergone ARG |
It is not in dispute that the provisions of the Prevention of Corruption Act,1988 alone are applicable since the incident occurred on 14.11.1997 i.e.subsequent to the Act Ratio |
S.7 of the Act relates to public servant taking gratification other than legal remuneration in respect of an official act Ratio |
If the said offence/charge is proved,the court has no other option but to impose sentence of imprisonment which shall be not less than six months but which may extend to five years and also liable to fine Ratio |
The said section reads as under:- " Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever,being,or expecting to be a public servant,accepts or obtains or agrees to accept or attempts to obtain from any person,for himself or for any other person,any gratification whatev... |
S.13 deals with criminal misconduct by a public servant STA |
As per sub-s.(2) if any public servant commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine STA |
For clarity,we reproduce the said section hereunder: " Criminal misconduct by a public servant.-(1 STA |
A public servant is said to commit the offence of criminal misconduct, (a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) If ... |
If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d STA |
If he,- (i STA |
By corrupt or illegal means,obtains for himself or for any other person any valuable thing or Pecuniary advantage; or (ii) By abusing his position as a public servant,obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii STA |
While holding office as a public servant,obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) If he or any person on his behalf,is in possession or has,at any time during the Period of his office,been in possession for which the public servant cannot satisfactorily accoun... |
Explanation STA |
For the purposes of this section "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance,with the provisions of any law,rules or orders for the time being applicable to public servant STA |
Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine STA |
It is useful to refer that in the Prevention of Corruption Act,1947 the same "criminal misconduct" which is available in S.13 of the 1988 Act had been dealt with in S.5 of the 1947 Act STA |
S.5(2) of the 1947 Act mandates 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 STA |
However,proviso to sub-s.(2) of S.5 gives power to the court that for any special reasons to be recorded in writing,impose a sentence of imprisonment of less than one year STA |
Such relaxation in the form of a proviso has been done away with in the 1988 Act STA |
To put it clear,in the 1988 Act,if an offence u/s.7 is proved,the same is punishable with imprisonment which shall be not less than six months and in the case of Section 13,it shall not be less than one year STA |
No other interpretation is permissible STA |
Other circumstances pleaded for reduction of sentence Ratio |
In order to substantiate the claim with the regard to the above,learned senior counsel for the appellant has relied on the decision of this Court in Bechaarbhai S.Prajapati vs ARG |
State of Gujarat,(2008) 11 SCC 163 2008 Indlaw SC 297 and based on the same requested this Court to modify the sentence to the extent of period already undergone ARG |
We have gone through the facts in that case Ratio |
It is true that even in the cited decision,the appellant accused demanded only Rs.250/-and it was paid and accepted Ratio |
Finally,the Special Judge framed charges for offence punishable under Sections 7,12,13(1)(d) read with S.13(2) of the Act Ratio |
The appellant therein was convicted for offence u/s.7(2) of the Act and appeal before the High Court was also dismissed Ratio |
Thereafter,the same was challenged before this Court Ratio |
This Court,after holding that the conclusion of the trial Court and High Court does not suffer from any infirmity considered the alternative submission which related to harshness of sentence Ratio |
In that case,taking note of the fact that the occurrence took place nearly seven years back and also of the fact that the appellant had suffered custody for more than six months,considering all these aspects,while maintaining the conviction,this Court reduced the sentence to the period already undergone Ratio |
Since the appellant therein was convicted only u/s.7 and S.161 Cr Ratio |
PC.,the minimum sentence being six months and of the fact that he had suffered custody for more than six months,the course adopted by this Court is perfectly in order and the same cannot be applied to the case on hand,wherein the appellant had undergone only 52 days when the minimum sentence was six months u/s.7 and on... |
Learned senior counsel for the appellant further submitted that inasmuch as the incident had occurred on 14.11.1997 and the trial Court has convicted him on 19.03.2001 which was affirmed by the High Court on 03.10.2007,at this juncture,i.e.,after a gap of 14 years,there is no need to retain the same sentence and the Co... |
There is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the High Court Ratio |
Inasmuch as the conviction on both counts have been confirmed by this Court and we are confined to sentence part alone and in view of the minimum sentence prescribed u/ss.7 and 13 of the Act,we are of the view that though long delay may be a ground for reduction of sentence in other cases,the same may not be applicable... |
Accordingly,we reject the said contention Ratio |
It was further contended that the amount alleged to have been received by the appellant accused is only Rs.200/-and he also lost his job after conviction by the trial court ARG |
Though,these grounds may be attractive in respect of other offences where minimum sentence is not prescribed,in view of our reasonings in the earlier paras,the same cannot be applied to the case on hand Ratio |
About the request based on delay that the appellant has lost his job,undergone the ordeal all along etc.a lenient view be taken in this case,it is useful to refer decision of this Court in State of M.P.vs PRE |
Shambhu Dayal PRE |
Nagar,(2006) 8 SCC 693 2006 PRE |
Indlaw SC 716 wherein it was held that: " It is difficult to accept the prayer of the respondent that a lenient view be taken in this case PRE |
The corruption by public servants has become a gigantic problem PRE |
It has spread everywhere PRE |
No facet of public activity has been left unaffected by the stink of corruption PRE |
It has deep and pervasive impact on the functioning of the entire country PRE |
Large-scale corruption retards the nation-building activities and everyone has to suffer on that count PRE |
As has been aptly observed in Swatantar Singh v PRE |
State of Haryana,(1997) 4 SCC 14 1997 Indlaw SC 1061,corruption is corroding,like cancerous lymph nodes,the vital veins of the body politics,social fabric of efficiency in the public service and demoralising the honest officers PRE |
The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently,truthfully,honestly and devotes himself assiduously to the performance of the duties of his post PRE |
The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke PRE |
Art.142 and its applicability PRE |
By drawing our attention to Art.142 of the Constitution of India,learned senior counsel for the appellant vehemently submitted that in order to do complete justice,this Court has ample power to reduce the sentence even to the extent of period already undergone or any other order which would be beneficial to the parties... |
Similar claim based on Art.142 has been negatived in several decisions by this Court,we need to refer only the latest decision of this Court in Manish Goel vs PRE |
Rohini Goel,(2010) 4 SCC 393 2010 Indlaw SC 301.The facts in that case are that the parties by persuasion of the family members and friends,entered into a compromise and prepared a memorandum of understanding dated 13.11.2009,in the proceedings pending before the Mediation Centre,Delhi,by which they agreed on terms and... |
The parties filed an application under Section 13-B(1) of the Hindu Marriage Act,1955 before the Family Court,Delhi seeking divorce by mutual consent PRE |
The said HMA No.456 of 2009 came before the court and it recorded the statement of parties on 16.11.2009.The parties moved another HMA No.457 of 2009 to waive the statutory period of six months in filing the second petition PRE |
However,the court rejected the said application vide order dated 01.12.2009 observing that the court was not competent to waive the required statutory period of six months under the Act and such a waiver was permissible only under the directions of the Supreme Court as held by this Court in Anil Kumar Jain vs PRE |
Maya Jain,(2009 PRE |
10 SCC 415 2009 Indlaw SC 1494.Hence the parties have approached this Court for appropriate relief PRE |
Speaking for the Bench one of us -(Dr PRE |
Justice B.S.Chauhan) referred to more than fifty decisions including the Constitution Bench judgments PRE |
The relevant paras,which are useful,may be quoted: " We are fully alive of the fact that this Court has been exercising the power u/art.142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable,emotionally dead,beyond salvage and has broken down irretrievably,even if ... |
Decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony,as it is evident from the judgments in Romesh Chander v PRE |
Savitri PRE |
1995) 2 SCC 7 1995 Indlaw SC 329,Kanchan Devi v PRE |
Promod Kumar Mittal (1996) 8 SCC 90 1996 Indlaw SC 2663,Anita Sabharwal v PRE |
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