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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1264  OF 2015

(ARISING OUT OF SLP (Crl.) NO. 444 OF 2015)   

K.P. SINGH                 ………APPELLANT Vs.

STATE OF N.C.T. OF DELHI           ……RESPONDENT

O R D E R

V.GOPALA GOWDA, J.

      Leave granted.

2. The present criminal appeal is directed against

the impugned judgment and order dated 31.10.2014

passed by the High Court of Delhi at New Delhi in

Crl. A. No. 758 of 2008, wherein it has affirmed

the  conviction  against  the  appellant  for  the

offence  punishable  under  Section  8  of  the

Prevention  of  Corruption  Act,  1988  (hereinafter

“the P.C. Act”) and reduced sentence awarded from 2

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years to 1 year retaining Rs.5000/- fine imposed

with  default  sentence  of  2  months  after

re-appreciation  of  evidence  of  the  prosecution

witnesses  no.6,  9  and  13  and  accepted  their

evidence  as  cogent  to  prove  the  charge  levelled

against  him  in  exercise  of  its  appellate

jurisdiction. Various legal contentions have been

urged  by  the  learned  counsel  on  behalf  of  the

appellant  before  this  Court  questioning  the

correctness of the judgment and order reducing the

sentence of imprisonment imposed upon him from 2

years to 1 year with fine amount of Rs.5,000/- and

in default sentence as mentioned above. This Court

vide its order dated 02.02.2015 has issued notice

to  the  respondent  to  re-consider  the  quantum  of

sentence  subject  to  the  condition  that  the

appellant surrender to the Central Jail, Tihar to

undergo sentence and file proof thereof within a

week. Accordingly, he surrendered to the Central

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Jail, Tihar on 04.02.2015 in case FIR No. 29 of

1997.

3. Mr. Radha Shyam Jena, learned counsel appearing

on behalf of the appellant contends that both the

Special  Court  and  the  High  Court  have  erred  in

convicting the appellant despite the fact that the

main accused Ms. Manju Mathur has been acquitted

for the offence under Sections 7,8, 13(1)(d) read

with Section 13(2) of the P.C. Act, on appreciation

of  evidence  on  record  and  that  the  prosecution

failed  to  prove  the  guilt  against  her.  She  was

acquitted  from  the  charges,  which  order  has

attained finality. The learned counsel has further

contended  that  the  courts  below  have  erred  in

recording  a  finding  of  guilt  on  the  charge  as

against the appellant despite the fact that there

is no evidence on record to prove the same. The

learned counsel has further contended that the High

Court has erred in upholding the judgment and order

of  the  Special  Judge  and  did  not  consider  the

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essential ingredients of Section 8 of the P.C. Act,

which are that the accused should accept or agree

to accept or even attempt to obtain gratification

from someone, the gratification is for himself or

for someone else and its motive or reward is to

induce a public servant by corrupt or illegal means

to do or forebear to do any official act or to show

favour or disfavour to someone etc.  

4. It  is  further  contended  by  Mr.  Radha  Shyam

Jena, learned counsel appearing on behalf of the

appellant that the prosecution has failed to prove

the  involvement  of  someone  other  than  the

appellant. Further, it is alternatively contended

by him that the appellant had undergone agony and

trauma since the litigation has been going on for

the last 17 years. In this backdrop, the High Court

ought to have imposed the minimum sentence of 6

months as provided under Section 8 of the P.C. Act

in exercise of its discretionary power. Hence the

present appeal urging various grounds.

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5. We  have  heard  the  learned  counsel  for  the

parties and have carefully examined the concurrent

findings  and  reasons  recorded  by  the  appellate

court  in  its  judgment  after  re-appreciation  of

evidence in exercise of its appellate jurisdiction.

The High Court after adverting to the evidence of

the prosecution witnesses has concurred with the

findings of fact on the charge framed against the

appellant under Section 8 of the P.C. Act. While

concurring with the findings of fact on conviction

of  the  charge  framed  against  the  appellant,  the

High Court has modified the sentence imposed upon

him from 2 years to 1 year with no change in the

fine amount and the default sentence as awarded by

the learned Special Judge.  

6. We  have  carefully  examined  the  impugned

judgment and order passed by the High Court with a

view to ascertain whether the sentence imposed on

the appellant by the High Court can be modified to

the minimum sentence of 6 months as provided under

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the provisions of Section 8 of the P.C. Act. It is

an undisputed fact that the main accused No. 2 has

been acquitted from the charges framed against her

by the Special Court. The learned Special Judge, on

appreciation of evidence on record has held that

the  prosecution  had  failed  to  prove  the  charge

against  the  accused  No.  2,  who  is  the  public

servant.  Further,  pursuant  to  our  order  dated

02.02.2015 the appellant surrendered to the Central

Jail, Tihar on 04.02.2015 in FIR case No. 29 of

1997. He has served the sentence for more than 7.5

months as per the certificate dated 6.9.2015 issued

by the Deputy Superintendent, Central Jail, Tihar

and has paid the fine amount awarded by the Special

Court which fine amount as sentence is  affirmed by

the  High  Court.  Having  regard  to  the  facts  and

circumstances  of  the  case,  particularly  in  the

light of the fact that the main accused No. 2,

against  whom  the  charges  were  levelled  under

Sections 7, 8, 13 (1) (d) read with Section 13 (2)

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of the P.C. Act, was acquitted for want of evidence

on record, we are of the view that justice would be

met if the period of sentence already undergone by

the  appellant  be  treated  as  the  sentence  to  be

imposed  for  the  conviction  on  the  charge  framed

against him. To that extent the impugned order  of

sentence imposed by the High Court is modified and

we pass the following order :-

This criminal appeal is partly allowed and

we modify the order impugned with regard to

the period of sentence already undergone by

the appellant is treated as sentence imposed

upon him for the charge proved against him.

To  this  extent  the  impugned  order  of

sentence of 1 year imposed by the High Court

is modified. In view of the above modified

order  of  sentence,  we  direct  the

Superintendent  of  Central  Jail,  Tihar  to

release  the  appellant  forthwith  from  the

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custody, if he is not required in any other

criminal case.

                     …………………………………………………………J.                         [T.S. THAKUR]     

                                                                        …………………………………………………………J.  

    [V. GOPALA GOWDA]

New Delhi, September 28, 2015

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               REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1264  OF 2015 (Arising out of SLP (Crl.) No. 444 of 2015)  

K.P. Singh         …Appellant

Versus

State of NCT of Delhi …Respondent

O R D E R

T.S. Thakur, J.

1. I have had the advantage of going through the order

proposed by my Esteemed Brother Gowda, J. and find myself

in complete agreement with the view taken by His Lordship

that the sentence awarded to the appellant deserves to be

reduced  to  the  period  already  undergone  by  him.  Not

because the reasoning given in support of that view is in any

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manner deficient, but only to buttress the conclusion arrived

at by his Lordship, I propose to add a few lines of my own.

2. The facts to the extent relevant have been elucidated in

the order proposed by Gowda, J. It would, therefore, serve

no purpose to recapitulate  the same over  again.   What is

important is that the principal accused has been acquitted of

the charges framed against her while the courts below have

concurrently  convicted  the  appellant  for  the  offences

punishable under Section 8 of the Prevention of Corruption

Act,  1988.   In  the  present  appeal  we  had  issued  notice

limited to the question of quantum of sentence that could be

awarded  to  the  appellant  in  the  peculiar  facts  and

circumstances of the case. The Trial Court had, as noticed by

Gowda, J., awarded rigorous imprisonment for a period of two

years and a fine of Rs. 5,000/- to the appellant herein which

has been in appeal reduced by the High Court to one year

besides  a  fine  of  Rs.5,000/-  and  a  default  sentence  of

imprisonment for a period of two months.

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3. Determining the adequacy of sentence to be awarded in

a given case is not an easy task, just as evolving a uniform

sentencing  policy  is  a  tough  call.  That  is  because  the

quantum of sentence that may be awarded depends upon a

variety of factors including mitigating circumstances peculiar

to  a  given  case.  The  Courts  generally  enjoy  considerable

amount  of  discretion  in  the  matter  of  determining  the

quantum of sentence. In doing so, the courts are influenced

in varying degrees by the reformative, deterrent and punitive

aspects of punishment,  delay in the conclusion of  the trial

and  legal  proceedings,  the  age  of  the  accused,  his

physical/health  condition,  the  nature  of  the  offence,  the

weapon  used  and  in  the  cases  of  illegal  gratification  the

amount of bribe, loss of job and family obligations of accused

are also some of the considerations that weigh heavily with

the Courts while  determining the sentence to be awarded.

The Courts  have not  attempted to exhaustively  enumerate

the considerations that go into determination of the quantum

of sentence nor have the Courts attempted to lay down the

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weight that each one of these considerations carry. That is

because any such exercise is neither easy nor advisable given

the  myriad  situations  in  which  the  question  may  fall  for

determination. Broadly speaking, the courts have recognised

the  factors  mentioned  earlier  as  being  relevant  to  the

question of determining the sentence. Decisions of this Court

on the subject are a legion. Reference to some only should,

however, suffice.

4. In B.G. Goswami v. Delhi Administration (1974) 3

SCC 85, the accused was convicted under Section 5(2) read

with  Section  5(1)(d)  of  the  Prevention  of  Corruption  Act,

1947 and under Section  161 of I.P.C and was sentenced to

undergo rigorous imprisonment for a period of 1 year and 4

months. On appeal, this Court while reducing the punishment

to  the  period  already  undergone,  laid  down  the  general

principles that are to be borne in mind by the Courts while

determining  the  quantum  of  punishment.  This  Court

observed:

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job and to earn a living for himself and for his family members and for  those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same.”

5. In Dologovinda Mohanty v. State of Orissa (1979)

4  SCC  557,  this  Court  upon  considering  the  negligible

amount of Rs. 138/- alleged to have been received by the

accused  as  illegal  gratification, took  a  lenient  view  by

reducing  the  sentence  of  the  accused  from  four  months

rigorous imprisonment to the period already undergone. The

following passage is apposite:  

“….It, however, appears that the entire money which was said to have been embezzled by the appellant was recovered by the government by deducting the entire amount from the salary of the appellant. It also appears  from  the  statement  of  the  accused  under Section  342  that  in  view  of  his  domestic circumstances  he  was  mentally  disturbed.  Having regard  to  these  special  circumstances  and  further having regard to the facts that the sum embezzled is only Rs. 138/- we feel that it would not be proper to send  the  appellant  back  to  jail.  The  appellant  has already undergone about a week's imprisonment. For these reasons, therefore, we  reduce the sentence to the period already served and  reduce the fine from Rs.  1,000/-  to  Rs.  500/-  in  default  one  month's rigorous imprisonment. Out of the fine, if deposited

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already, Rs. 500/- may be refunded to the appellant. With this modification the appeal is dismissed.”  

6. In light of the long delay in the conclusion of the legal

proceedings and the consequential  agony and incarceration

undergone by the appellant, this Court in  M.W. Mohiuddin

v.  State of Maharashtra  (1995) 3 SCC 567  reduced the

sentence of six months imposed on the accused by the trial

court to the period already undergone:

“10.  Now coming  to  the  question  of  sentence,  the offence took place in the year 1981. All these years the  appellant  has  undergone  the agony of  criminal proceedings until now and he has also lost his job and has a large family to support. It is also stated that he has become sick and infirm. He has been in jail for some  time.  For  all  these  special  reasons,  while confirming the conviction of the appellant, we reduce the sentence of imprisonment to the period already undergone. However, we confirm the sentence of fine with  default  clause.  Accordingly,  subject  to  the modification of sentence of imprisonment, the appeal is dismissed.”

7. To  the  same  effect  is  the  decision  of  this  Court  in

Ghulam  Din  Buch  etc.  etc.  v. State  of  Jammu  and

Kashmir  (1996) 9 SCC 239 wherein after considering the

long delay in the legal proceedings, this Court reduced the

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punishment  of  the  accused  to  two  months  rigorous

imprisonment for offences punishable under the Prevention of

Corruption Act, 1947 and the Ranbir Penal Code. This Court

said:

“28. According to us, it would be too harsh to award even the minimum punishment at this length of time keeping in view the hardship already undergone and the amount which the State  had ultimately  to  lose because of the conspiracy - the same being a sum of Rs. 1,62,117.89. As about two decades have passed since the commission of the offence and as during the interregnum the appellants had undoubtedly suffered in body and mind,  according to us,  it  is  a fit  case where the proviso to Sub-section (2) of Section 5 of the  Act  should  be  invoked  which  states  that  for special  reasons  recorded  in  writing,  the  court  may refrain from imposing a sentence of imprisonment or impose a sentence of imprisonment of less than one year. Though  the  proviso  permits  not  to  impose  a sentence  of  imprisonment  at  all  and  confine  the sentence to fine only, we do not think if present is a case where the punishment to be awarded should be only fine, as any softness in this regard could produce an  undesirable  result,  namely,  encouragement  to adoption of corrupt means by public servants which has  indeed  to  be  checked,  and  not  allow  to  be encouraged.  Keeping  in  view  all  the  attending circumstances, we are of the view that a sentence of RI for two months would be adequate sentence, apart from the fine of Rs. 15,000. On failure to pay the fine, each of the appellants would suffer imprisonment for two months.”

8. So  also,  in  the  case  of  State  of  Maharashtra v.

Rashid Babubhai Mulani (2006) 1 SCC 407, the accused

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to  the  period  already  undergone.  The  following words  are

seminal to the issue at hand:

“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….

xxx xxx xxx

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.”

11. Similarly, in  Gulmahmad  Abdulla  Dall v. State  of

Gujarat  2014  (4)  Crimes  455  (SC), the  appellant  was

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12. Given  the  fact  that  the  trial  and  appeal  proceedings

have in the case at hand continued for nearly 17 years by

now  causing  immense  trauma,  mental  incarnation  and

anguish to the appellant and also given the fact that the bribe

amount was just about Rs.700/- and that the appellant has

already  undergone  7½  months  against  the  statutory

minimum of  6  months  imprisonment,  the reduction  of  the

sentence as proposed by my esteemed Brother appears to be

perfectly in order. I, therefore, concur with the view taken by

His Lordship.

………………….……….…..…J.     (T.S. Thakur)

New Delhi September 28, 2015