AMBI RAM versus STATE OF UTTARAKHAND on 5 February 2019

1. This appeal is filed against the final judgment and order dated14.05.2009 passed by the High Court of Uttarakhand at Nainital inFCriminal Appeal No. 258 of 2001 (Old No.1518/1991) whereby the HighCourt partly allowed the appeal filed by the appellant herein.

2. A few facts need mention to appreciate the short controversyinvolved in this appeal.

3. The appellant was working as “Kanoongo/Patwari” at Didihat,GUttarakhand. He was prosecuted for commission of the offencespunishable under Section 5 (2) of the Prevention of Corruption Act, 1947(hereinafter referred to as “the PC Act”) read with Section 161 of theIndian Penal Code, 1860(hereinafter referred to as “IPC”).

4. The charge against the appellant was that he assured one GopalSingh that he would not arrest him nor would implicate him in one pendingcriminal case, if he pays him Rs.1200/-.

5. It was the case of the prosecution that the appellant whileaccepting the illegal gratification of Rs.1200/- from Gopal Singh on30.09.1985 was caught by S.P. (Vigilance) in a trap arranged for thispurpose 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 andaccordingly convicted the appellant for the offences punishable underSection 5 (2) of the PC Act read with Section 161 IPC and sentencedhim to undergo rigorous imprisonment for a period of four years and topay a fine of Rs.5000/- under Section 5(2) of the PC Act and in defaultof payment of fine, to undergo further rigorous imprisonment for a periodof one year and to undergo rigorous imprisonment for a period of threeyears under Section 161 IPC. Both the sentences were to runconcurrently.

7. The appellant felt aggrieved by his conviction and sentence andfiled an appeal in the High Court. By impugned order, the High Courtpartly allowed the appeal. The High Court maintained the convictioninsofar as it pertains to the offence punishable under Section 5(2) of thePC Act but interfered in quantum of sentence awarded and accordinglyreduced the jail sentence from four years to one year and reduced thefine amount of Rs. 5000/- to Rs. 3000/- in default of payment of fine tofurther undergo rigorous imprisonment for three months. So far as theoffence punishable under Section 161 IPC is concerned, the High Courtupheld the conviction but reduced the sentence from three years to oneyear. Both the sentences were to run concurrently.

8. The appellant(accused) felt aggrieved and has filed this appealby way of special leave in this Court.

9. Heard Mr. Arun K. Sinha, learned counsel for theappellant(accused) and Mr. Ashutosh Kumar Sharma, learned counselfor the respondent(State).

10. Learned counsel for the appellant (accused) has argued onlyone point. He did not question the legality of the conviction. All that heargued was that the jail sentence awarded to the appellant be reduced.

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A11. According to him, having regard to the fact that the appellantis now aged around 78 years and suffering from heart ailment and furtherthe incident is of the year 1985 and, in the meantime, 34 years haveelapsed and lastly, the appellant has undergone around one month and10 days imprisonment, this Court should exercise its powers under provisoto Section 5 (2) of the PC Act and reduce the jail sentence from oneByear to what is undergone by the appellant, i.e., 1 month and 10 days ashis total jail sentence and may, if considered proper, instead enhance thefine amount.

12. Learned counsel for the respondent, in reply, supported theimpugned order and contended that having regard to the factualCcircumstances, no case of further reduction in the sentence awarded bythe High Court is made out and, therefore, the appeal is liable to bedismissed.

13. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal in part andDreduce the sentence as indicated below.

14. Section 5 (2) of the PC Act reads as under :

“(2) Any public servant who commits criminal misconductshall be punishable with imprisonment for a term which shallnot be less than one year but which may extend to sevenEyears and shall also be liable to fine:Provided that the court may, for any special reasonsrecorded in writing, impose a sentence of imprisonment ofless than one year.”

15. Reading of Section 5 (2) of the PC Act shows that it providesFthat any public servant, who commits criminal misconduct, shall bepunishable with imprisonment for a term which shall not be less than oneyear but which may extend to seven years and shall also be liable tofine.

16. The proviso then empowers the Court to impose sentence ofimprisonment of less than one year provided any special reasons areGrecorded in writing in support of imposing such reduce sentence of lessthan one year.

17. It is, therefore, clear that the Court is empowered to impose asentence, which may vary from 1 year to 7 years with fine. However, ina particular case, the Court finds that there are some special reasons inHfavour of the accused then the Court is empowered to impose imprisonment of less than one year provided those special reasons areset out in writing in support of imposing sentence less than one year. Sofar as imposing of fine is concerned, it is mandatory while imposing anyjail sentence. How much fine should be imposed depend upon the factsof 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 questionas to what factors/circumstances should be taken into consideration forreducing the jail sentence.

19. In his concurring opinion, Justice T.S Thakur (as his Lordshipthen was and later CJI) in his distinctive style of writing in detail examinedthis question in the light of law laid down by this Court in earlier cases onthe subject and held as under:

“10. Determining the adequacy of sentence to be awardedin a given case is not an easy task, just as evolving a uniformsentencing policy is a tough call. That is because thequantum of sentence that may be awarded depends upon avariety of factors including mitigating circumstances peculiarto a given case. The courts generally enjoy considerableamount of discretion in the matter of determining thequantum of sentence. In doing so, the courts are influencedin varying degrees by the reformative, deterrent andpunitive aspects of punishment, delay in the conclusion ofthe trial and legal proceedings, the age of the accused, hisphysical/health condition, the nature of the offence, theweapon used and in the cases of illegal gratification theamount of bribe, loss of job and family obligations of theaccused are also some of the considerations that weighheavily with the courts while determining the sentence tobe awarded. The courts have not attempted to exhaustivelyenumerate the considerations that go into determination ofthe quantum of sentence nor have the courts attempted tolay down the weight that each one of these considerationscarry. That is because any such exercise is neither easynor advisable given the myriad situations in which thequestion may fall for determination. Broadly speaking, thecourts have recognised the factors mentioned earlier asbeing relevant to the question of determining the sentence.The decisions of this Court on the subject are a legion.Reference to some only should, however, suffice.

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A19. Given the fact that the trial and appeal proceedings havein the case at hand continued for nearly 17 years by nowcausing immense trauma, mental incarnation (sicincarceration) and anguish to the appellant and also giventhe fact that the bribe amount was just about Rs 700 andthat the appellant has already undergone 7½ monthsBimprisonment against the statutory minimum of 6 months’imprisonment, the reduction of the sentence as proposedby 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 laidCdown by this Court when we examine the facts of the case at hand, wefind that Firstly, the incident is of the year 1985; Secondly, this case ispending for the last 34 years; Thirdly, the appellant has now reached tothe age of 78 years; Fourthly, he is suffering from heart ailment, asstated by the learned counsel for the appellant, and is also not keepingDwell; Fifthly, he has so far, during the trial and after suffering conviction,undergone total jail sentence of one month and 10 days; Sixthly, he hasbeen on bail throughout for the last 34 years and did not indulge in anycriminal 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.E

21. The aforesaid 8 reasons which, in our view, are the specialreasons 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 theappellant by the two Courts below and reduce it to “what is alreadyFundergone by the appellant”, i.e., 1 month and 10 days.

22. In other words, this Court alter the jail sentence of the appellantand award him “what is already undergone by him” and at the sametime enhances the fine amount of Rs.3000/- to Rs.10,000/- to meet theends of justice.G23. The appellant is, therefore, now not required to undergo anymore jail sentence. However, in case he fails to deposit a fine amount ofRs.10,000/- after adjusting the sum of Rs.3000/-, if already paid by theappellant, he will have to undergo simple imprisonment for a period ofone month.

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AMBI RAM v. STATE OF UTTARAKHAND[ABHAY MANOHAR SAPRE, J. ]

24. If the appellant deposits the fine amount of Rs.10,000/- within3 months from today, he will not be required to undergo any default jailsentence. If he has already deposited Rs.3000/- then he will only depositRs.7000/-.

25. In view of the foregoing discussion, the appeal succeeds andis partly allowed. The impugned order is modified to the extent indicatedabove.

Ankit Gyan

Appeal partly allowed.

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