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

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.”

 

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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

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REPORTABLE
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