REPORTABLE                           

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1429      OF 2011 (Arising out of S.L.P. (CRL.) No. 3262 of 2011)

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  

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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.

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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?

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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.     

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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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