Archive

Monthly Archives: February 2014

Delay in trial ground for leniency in sentencing: Supreme Court.

 

A bench of Justices S J Mukhopadhaya and Kurian Joseph said on Friday, “The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence.”

 

The case was transferred to a Delhi special judge in 1994, ten years after the registration of FIR. The special judge convicted Verma under Prevention of Corruption Act and sentenced him to one-and-a-half years in jail along with a fine of Rs 5,000.

The high court took another 10 years to decide Verma’s appeal against conviction. Verma had claimed that the contractor had an axe to grind against him as he had not budged on his demand for tweaking the measurement of the work done. The HC dismissed his appeal on July 22, 2013. Verma appealed against the HC judgment in the apex court.

Justice Joseph, who authored the bench’s judgment on Verma’s appeal, said, “One wonders as to how it took 10 years for the matter to be registered as sessions case and stranger is it to see that the trial also took almost 10 years and still stranger is that the matter took 10 years in the HC.”

Verma’s counsel pleaded for leniency saying his 76-year-old client was now suffering from various ailments. Taking this into account, the bench said, “It is a litigation of almost three decades in a simple trap case and that too involving a petty amount.”

Justice Kurian said, “The accused has already undergone physical incarceration for three months and mental incarceration for about 30 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.”

 

——————————————————————————————————————————————————————————————————————————————————————————

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 404 OF 2014
[Arising out of S.L.P.(Criminal) No. 8628/2013]

V. K. Verma … Appellant (s)

Versus

CBI … Respondent (s)
J U D G M E N T

KURIAN, J.:

 

Leave granted.
2. Appellant is the accused in C.C. No. 205 of 1994 on the file of the
Special Judge, Delhi. He was tried for offences under Section 161 of
the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’)
and Section 5(1)(d) read with Section 5(2) of the Prevention of
Corruption Act, 1947. The charge was that the appellant demanded and
accepted bribe of Rs.265/- from a contractor by name Sanjeev Kumar
Sawhney on 21.12.1984. According to the appellant, the said contractor
had an axe to grind since the appellant did not budge to his demand
for improper measurement of the work done by him and he was actually
trapped at his instance. FIR was registered on 21.12.1984. The
sessions court convicted him of the charges and sentenced him to
undergo rigorous imprisonment for a period of one and a half years
with a fine of Rs.5,000/- each under the charged Sections, as per
Judgment dated 10.04.2003.

3. The High Court declined to interfere with the conviction and sentence
and dismissed the appeal as per Judgment dated 22.07.2013 and, hence,
the appeal.

4. One wonders as to how it took ten years for the matter to be
registered as sessions case and stranger is it to see that the trial
also took almost ten years and still stranger is that the matter took
ten years in the High Court.

5. Pursuant to dismissal of the appeal before the High Court, the
appellant surrendered before the Special Judge on 03.10.2003 and he
was sent to custody. On 28.10.2013, this Court issued notice limited
to the quantum of sentence. Thereafter, by Order dated 16.12.2013, the
appellant was enlarged on bail.

6. Learned counsel for the appellant submits that the incident is of the
year 1984, the appellant is now aged 76 and he is sickly. Heard also
the counsel for the CBI who has strongly opposed even any lenient
approach by this Court.

7. Section 5 of the Prevention of Corruption Act, 1947 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.”

 

8. 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”

9. 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.

10. In imposing a punishment, the concern of the court is with 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 on 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.

11. 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 taking a decision on the quantum of sentence. As we have noted
above, the FIR was registered by the CBI in 1984. The matter came
before the sessions court only in 1994. The sessions court took almost
ten years to conclude the trial and pronounce the judgment. Before the
High Court, it took another ten years. Thus, it is a litigation of
almost three decades in a simple trap case and that too involving a
petty amount.

12. In Ashok Kumar v. State (Delhi Administration)[1], the commission of
offence of theft was in 1971 and the Judgment of this Court was
delivered in 1980. The conviction was under Section 411 of IPC. This
Court having regard to the purpose of punishment and “the long
protracted litigation”, reduced the sentence to the period already
undergone by the convict.
13. In Sharvan Kumar v. State of Uttar Pradesh[2], the commission of
offence was in 1968 and the judgment was delivered in 1985. The
conviction was under Sections 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 this Court in reducing the sentence to the
period already undergone.

14. In Ajab and others v. State of Maharashtra[3] also, this Court had an
occasion to examine the similar situation. The offence was committed
in 1972 and this 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”. This Court in that case, while reducing
the substantive sentence, increased the fine holding that the same
would meet the ends of justice.

15. 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.

16. 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.

 
………..…………………….…..…………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 

…………………..…………………………J.
(KURIAN JOSEPH)
New Delhi;
February 14, 2014.
———————–
[1] (1980) 2 SCC 282
[2] (1985) 3 SCC 658
[3] 1989 Supp (1) SCC 601

———————–
REPORTABLE
———————–
6

 

 

 

Advertisements

 

Supreme Court Rulings u/s  156(3) CrPC to Register FIR

 

“The only point for consideration in all these appeals is whether the learned Magistrate is justified in directing the Police to investigate and submit a detailed report within one month under Section 156(3) of the Code.

The order of the learned Magistrate shows that before passing the direction for investigation under Section 156(3), heard the counsel for the complainant, perused the allegations made against the accused in the complaint and documents annexed therewith. It also shows that taking note of the fact that some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under Section 156(3) of the Code directed the P.S.O. Ghatanji to investigate the matter and submit a detailed report within one month.”

———————————————————————————————————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NO. 684 OF 2013

(Arising out of S.L.P. (Crl.) No. 7293 of 2009)

Madhao & Anr. …. Appellant(s)

Versus

State of Maharashtra & Anr. …. Respondent(s)

2 WITH

3

4 CRIMINAL APPEAL NO. 685 OF 2013

(Arising out of S.L.P. (Crl.) No. 7324 of 2009)

5 CRIMINAL APPEAL NO. 686 OF 2013

(Arising out of S.L.P. (Crl.) No. 7332 of 2009)

6 CRIMINAL APPEAL NO. 687 OF 2013

(Arising out of S.L.P. (Crl.) No. 7693 of 2009)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted in all the special leave petitions.

7

8 CRIMINAL APPEAL NO. OF 2013

(Arising out of S.L.P. (Crl.) No. 7293 of 2009)

2) This appeal is directed against the final judgment and order dated 02.09.2009 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Application No. 3112 of 2006 whereby the High Court dismissed the appeal filed by the appellants herein while confirming the order dated 27.09.2005, passed by the Court of Judicial Magistrate, First Class, Ghatanji in Criminal Complaint Case No. 92 of 2005. 3) Brief facts:

(a) The Government of Maharashtra has published a Government Resolution on 02.06.2004 wherein it was informed to the public at large that the percentage of educated un-employed amongst the Scheduled Caste and neo- Buddhist are on the higher side and those who are below poverty line are required to work under different schemes and their standard of living is consequently adversely affected. For the said reason, it was resolved that land should be made available to such people to create a source of income for them. For the said purpose, a scheme was framed by name Karamveer Dadasaheb Gaikwad Sabalikaran and Swabhiman Yojana Samiti. As per the Scheme, a Committee was constituted in each district and the Collector of the district was to act as Head of the Committee. The said Scheme was made applicable with effect from 01.04.2004. As per the Scheme, land was to be purchased by the Government and was to be made available to the persons belonging to the Scheduled Caste and neo-Buddhist who were below poverty line.

(b) Madhao Rukhmaji Vaidya-Appellant No.1 herein while working as Special District Welfare Officer and Member Secretary of the Samiti under the Scheme, did several transactions under the supervision of District Collector, Yavatmal. Sau. Sadhana Mahukar Yavalkar-appellant No.2, a Warden at Government Hostel, Ghatanji, District Yavatmal was working as Assistant of appellant No.1 in the said Scheme. She was authorized by appellant No.1 to get the Sale deeds executed in favour of the Government of Maharashtra under the Scheme.

(c) On 04.04.2005, the State Government purchased agricultural land situated at village Koli-Bujruq. The said land was jointly owned by eight persons. The appellants, after perusing the revenue records of the said land purchased it from the Vendors by getting executed a registered sale deed. At the time of execution of sale deed, on 07.05.2005, an affidavit was sworn by the Vendors that they were residents of Mouza Koli-Buzruq, Tahsil Ghatanji, District Yavatmal and were the owners of Gut No. 43 of the said property.

(d) On 04.06.2005, A newspaper by name “Tarun Bharat” published an article in which it was alleged that the petitioners have purchased agricultural land showing Ramesh as alive while he was dead. It was further alleged that one Ramesh Shikaji Rathod had signed the sale deed as Ramesh Shika Jadhav.

(e) On coming to know about the said publication, appellant No. 1 on 29.06.2005 made an enquiry and recorded the statements of the said eight Executants and on 02.07.2005 lodged a report in Ghatanji P.S. against them for an offence of impersonation and cheating.

(f) On 07.07.2005, the officials of Ghatanji P.S. registered offences punishable under Sections 420, 419, 468 and 34 of the Indian Penal Code, 1860 (for short ‘IPC’) for the acts of fraud, criminal breach of trust and impersonation against the said accused persons vide Crime No. 88 of 2005. (g) On 09.09.2005, one Rajnikant Deluram Borele, claiming himself to be a Social Worker, filed a Criminal Complaint in the court of the Judicial Magistrate, First Class, Ghatanji, which was registered as Case No. 92 of 2005 against the appellants-herein, Sub-Registrar and few more persons. In the complaint it was alleged that the accused had purchased the land from a dead person, namely, Ramesh Shikaji Jadhav, while the appellants were acting in their official capacity under the said Scheme. (h) Learned Magistrate, by order dated 27.09.2005, directed the Police to investigate the matter under Section 156(3) of the Code of Criminal Procedure Code, 1973 (in short the “Code”) and to submit a detailed report within one month.

(i) On 15.09.2006, the appellants (Madhao Rukhmaji Vaidya and Sau. Saudhana Mahukar Yavalkar) filed an application under Section 482 of Cr.P.C. being Criminal Application No. 3112 of 2006 before the Bombay High Court seeking quashing of the prosecution of the applicants (appellants herein) in Crime No. 92 of 2005.

(j) On 02.09.2009, after hearing the parties, the High Court dismissed the Criminal Application preferred by the appellants-herein by holding that the procedure adopted and the power exercised by the Magistrate ordering investigation under Section 156(3) of Cr.P.C. is just and proper. (k) Being aggrieved, appellants herein filed SLP No. 7293 of 2009.

9 CRIMINAL APPEAL NO. OF 2013

(Arising out of S.L.P. (Crl.) No. 7324 of 2009)

4) On 27.09.2006, one of the accused, namely, Akash Dattatraya Marawar (A-1), business man, also filed Criminal Application No. 3242 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005. The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No. 7324 of 2009.

10 CRIMINAL APPEAL NO. OF 2013

(Arising out of S.L.P. (Crl.) No. 7332 of 2009)

5) On 24.10.2006, another accused, namely, Omprakash Hiralal Jaiswal, Sub-Registrar, also filed Criminal Application No. 3526 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005. The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No. 7332 of 2009.

11 CRIMINAL APPEAL NO. OF 2013

(Arising out of S.L.P. (Crl.) No. 7693 of 2009)

6) On 29.10.2006, one of the accused, namely, Aslam Shakil Julphikar Khan, employee of Akash Dattatraya Marawar (A-1), business man, also filed Criminal Application No. 3240 of 2006 before the High Court seeking quashing of the prosecution in Crime No. 92 of 2005. The High Court, by order dated 02.09.2009, dismissed the application. Being aggrieved, he filed special leave petition No 7693 of 2009.

7) Heard Mr. Uday U. Lalit, learned senior counsel for the appellant and Mr. Shankar Chillarge, learned Additional Advocate General for the respondent-State of Maharashtra.

8) The only point for consideration in all these appeals is whether the learned Magistrate is justified in directing the Police to investigate and submit a detailed report within one month under Section 156(3) of the Code.

9) The order of the learned Magistrate shows that before passing the direction for investigation under Section 156(3), heard the counsel for the complainant, perused the allegations made against the accused in the complaint and documents annexed therewith. It also shows that taking note of the fact that some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under Section 156(3) of the Code directed the P.S.O. Ghatanji to investigate the matter and submit a detailed report within one month.

10) Chapter XIV of the Code speaks about conditions requisite for initiation of proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms of sub-section (1) subject to the provisions of the said Chapter, any Magistrate of first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

11) Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 may order such an investigation in terms of sub- section (1) of that section.

12) In CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and Another, (2005) 7 SCC 467, while considering the power of a Magistrate taking cognizance of the offence, this Court held:

“10. …. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure….”

It is clear that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.

13) When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3). 14) Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 15) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

16) Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.

17) The above principles have been reiterated in Devarapalli Lakshminarayana Reddy and Others vs. V. Narayana Reddy and Others, (1976) 3 SCC 252 and Tula Ram and Others vs. Kishore Singh,(1977) 4 SCC 459

18) Keeping the above principles, if we test the same with the direction issued by the magistrate for investigation under Section 156(3) of the Code and facts of these cases, we are satisfied that the magistrate has not exceeded his power nor violated any of the provisions contained in the Code. As observed earlier, the magistrate need not order any investigation if he pre-supposes to take cognizance of the offence and once he takes cognizance of the offence, he has to follow the procedure provided in Chapter XV of the Code. It is also settled position that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code.

19) As rightly observed by the High Court, the magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code, we are of the view that the procedure adopted and the power exercised by the magistrate in this case is acceptable and in accordance with the scheme of the Code. We are also satisfied that the High Court rightly refused to exercise its power under Section 482 of the Code. 20) In the light of the above discussion and conclusion, we find no merit in all these appeals, consequently, the same are dismissed.

………….…………………………J.

(P. SATHASIVAM)

………….…………………………J.

(JAGDISH SINGH KHEHAR)

NEW DELHI;