State
of Jammu & Kashmir Vs. Vinay Nanda [2001] Insc 24 (16 January 2001)
R.P.Sethi,
K.T.Thomas Sethi, J.
Special Leave Petition (crl.) 3028 of of
L.J
Leave
granted.
Corruption
at any level, by any person, of any magnitude is condemnable which cannot be
ignored by the judicial courts, when proved. No leniency is required to be
shown in proved cases under the Prevention of Corruption Act which itself
treats the offences under it of a special nature to be treated differently than
the general penal offences. The convicts of the offences under the Act are to
be dealt with heavy hand and deterrent rod. No populous or sympathetic approach
is needed in such cases.
The
only exception is the existence of special circumstances for awarding the
minimum sentence. The important point of law involved in the present appeal is
as to whether the benefit of Jammu & Kashmir Probation of Offenders Act can
be extended to the convicts under the Jammu & Kashmir Prevention of
Corruption Act, Svt. 2006 (hereinafter referred to as "the Act"). The
facts giving rise to the determination of the question noted hereinabove are
that the respondent, when posted as cashier in the Procurement Department of
the State of Jammu & Kashmir, tampered the record regarding the carriage of
store articles to and fro through RTC vehicles. The word "RTC" was
changed into "one RTC Vehicles" and the words "RTC was changed
into the words "BTC". After withdrawing Government money for making
payment to the carriers, the respondent was alleged to have misappropriated the
amount with the connivance of his superior officers. It was specifically stated
in the complaint filed against him that with the connivance of the Account
Officer Shri Babu Ram Sharma the respondent encashed a cheque of Rs.89,000/-
from the Treasury and misappropriated the same. On receipt of the complaint
against the respondent, a preliminary enquiry was conducted during which it
transpired that accused had in fact misappropriated the amount upon which a
regular FIR No.23 of 1987 was registered and investigation commenced. During
the investigation it was found that Cheque No.0547185 for an amount of Rs.97,952.11
was encashed by the respondent-accused but instead of remitting the amount into
the Treasury, he misappropriated the same. To conceal the embezzlement he defalcated
the account by making a false entry of remittance in cash book at Page No.41.
The accused confessed the non remittance of the account and when show cause
notice was issued to him on 1.3.1985, he refunded the said amount in different instalments
during the years 1985-87. After completion of the investigation charge-sheet
was filed in the court of Special Judge, Anti Corruption, Jammu who charged him for the commission
of offences under Section 5(2) of the Act and Sections 409 and 468 of the Ranbir
Penal Code vide its order dated 1st May, 1991. The accused pleaded not guilty to the charge and claimed
to be tried. To prove its case, the prosecution had examined S/Sh. Davinder
Singh, Shambu Nath, Dharampal, Om Parkash, Nertar Parkash, Babu Ram, Romesh
Kumar Bali, Khajour Singh, Suram Singh, Bal Krishan, Jagdish Chander, Radhey Shayam,
Kuldeep Khoda, R.P. Abrol and Ranbir Singh as witnesses.
In his
statement recorded under Section 342 of the Code of Criminal Procedure
corresponding to Section 313 of the Central Criminal Procedure Code, the
respondent denied all the allegations. After critically examining the evidence
led in the case, the Special Judge, vide an elaborate judgment found the
respondent guilty of commission of offences under Section 5(1)(c) of the Act
and Section 409 and 468 of the Ranbir Penal Code. Upon his conviction the
respondent was sentenced to undergo imprisonment for one year on each count
besides paying a total fine of Rs.16,000/-. All the sentences were directed to
run concurrently. Not satisfied with the judgment of the Special Judge, the
respondent filed an appeal which was disposed of by the judgment impugned in
this case by upholding the conviction of the respondent but giving him the
benefit of probation under the Jammu & Kashmir Probation of Offenders Act.
He was directed to furnish a bond for maintaining good conduct for a period of
three years and to pay costs in terms of Section 5(1)(b) of the said Act which
were assessed at Rs.2000/-. The costs were to be deposited with the Registrar
(Judicial) within a period of three months. In case that direction was not
complied with, the respondent was ordered to suffer jail sentence for six
months. Feeling aggrieved by the judgment of the High Court, the present appeal
has been filed by the State.
However,
the respondent has not challenged the finding of fact arrived at by the High
Court. In his judgment, the learned Single Judge of the High Court held:
"The facts which are undisputed are:
i.
That a sum of Rs.97,952.11 was withdrawn by the appellant by self cheque
No.0547185. This was done on 30.8.1984.
ii.
The aforementioned amount was not deposited in the account.
iii.
That a Senior Officer namely Babu Ram on checking the account found that the
aforementioned amount though withdrawn was not deposited in the State Treasury.
iv.
That an enquiry was held. Thereafter the appellants deposited the amount on
various dates. This was of course done before the present criminal
investigation started in this case." The plea of the respondent that while
he was on his way to deposit the entire amount in the Jammu & Kashmir Bank
a sum of Rs.40,000/- was lost, was held to have been not substantiated.
Deposits were proved to have been made after the factum of withholding the
money by the respondent came to the notice to his superior officer, Sh.Babu Ram
Sharma.
The
trial court as well as the High Court has concurrently held the accused guilty
for the commission of the offences with which he was charged. However, the High
Court was persuaded to take a sympathetic view in the matter on the existence
of circumstances justifying a lenient action and benefit of the Jammu &
Kashmir Probation of Offenders Act was given as noticed earlier. It appears
that the learned Single Judge of the High Court was not apprised of the
relevant provisions of the Jammu & Kashmir Probation of Offenders Act, 1966
(hereinafter referred to as "the 1966 Act") which resulted in the
passing of the judgment impugned. Sub-section (3) of Section 1 of the 1966 Act
provides that: "It shall come into force on such date as the Government
may, by notification in the Government Gazette, appoint and different dates may
be appointed for different parts of the State." The Act has been enforced
in the Cities of Jammu & Srinagar w.e.f. 15th May, 1969 by SRO 267 dated 3rd May, 1969 and in the Districts of Jammu & Srinagar w.e.f. 15th January, 1970 by SRO 23 dated 15th January, 1970. Despite its extension to whole of
the State of Jammu & Kashmir its provisions are not shown to have been
applied to the other parts of the State. Section 18 of the said Act reads:
"Saving
of operation of certain enactments: Nothing, in this Act shall, affect the
provision of sub-section (2), of section 5 of the Jammu and Kashmir Prevention
of Corruption Act Svt. 2006 or the supersession of Immoral Traffic in Woman and
Girls Act, 1956 (Central Act of 1956) or any law in force in the State relating
to Juvenile Offenders." In view of unambiguous and categoric provisions of
Section 18 of the Jammu & Kashmir Probation of Offenders Act, it is
incumbent upon us to hold that the High Court was not justified in giving the
respondent the benefit of the Jammu & Kashmir Probation of Offenders Act as
the said Act was not applicable to offences under the Act. We are sure that had
the provisions of the 1966 Act been brought to the notice of the High Court,
the order impugned could not have been passed. The judgment impugned in this
appeal is, therefore, liable to be set aside. Faced with this situation, the
learned counsel for the respondent submitted that the case be remitted back to
the High Court for deciding it afresh. We are not impressed by this submission
inasmuch as concededly the respondent has not filed any appeal against the
finding of conviction recorded by both the courts against him. Under the
circumstances of the case no useful purpose would be served by remanding the
case.
Mr.Jaspal
Singh, learned Senior Advocate appearing for the respondent then submitted that
as there exist special circumstances, the respondent be not sent to the jail at
this stage particularly when he has complied with the directions of the High
Court. To appreciate this submission a reference has to be made to the
provisions of the Act prescribing sentence upon conviction under it. Section
5(2) of the Act, as substituted by Act No.9 of 1993, provides:
"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 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 but not less than six
months." It is the mandate of law that a person convicted under the Act
can be sentenced for a term upto seven years and not less than one year.
According to the proviso, the sentence can further be reduced to six months
only "for any special reasons recorded in writing". Relying upon the
judgments of this Court in Aditya Nath Pandey v. State of U.P. [2000 SCC (Cri.)
1206, Vidyadhar Ganesh Lanjekar v. State of Maharashtra [1993 Cri.Law Journal
3667] and Ghulam Din Buch & Ors. v. State of J & K [1996 (9) SCC 239]
the learned Senior Counsel appearing for the respondent has submitted that in
view of peculiar and special circumstances of this case, the ends of justice
would be met only by awarding the sentence of fine to his client without
sending him to jail at this stage. However, the perusal of the aforesaid
judgments indicates that in none of the cases the Court considered the effect
of provisions of law prescribing the minimum sentence upon conviction under the
Act. Where the mandate of law is clear and unambiguous, the Court has no option
but to pass the sentence upon conviction as provided under the statute. In Ghulam
Din Buch's case the Court considered the scope of Section 5(2) of the Act prior
to its amendment, when it observed: "Though the proviso permits not to
impose a sentence of imprisonment at all and confines the sentence to fine
only, we do not think if the present is a case where the punishment to be
awarded should be only fine, as any softness in this regard would produce an
undesirable result, namely, encouragement to adoption of corrupt means by
public servants which has indeed to be checked, and not allowed 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/-." The mitigating circumstances in a case, if
established, would authorise the Court to pass such sentence of imprisonment or
fine which may be deemed to be reasonable but not less than the minimum
prescribed under an enactment.
On
behalf of the respondent it has been argued in the alternative that upon
conviction the minimum sentence in terms of proviso to sub-section (2) of
Section 5 of the Court be awarded in the case. For imposing the minimum
sentence the court has to record special reasons. 'Special reasons' have to be
distinguished from 'good' or 'other reasons'. The fact that the convict had
reached his superannuation is not a special reason. Similarly pendency of
criminal case for over a period of time can also not be treated as a special
reason. Prolonged litigation in the country is admittedly a general reason in
criminal cases.
This
Court under similar circumstances in Jagjeevan Prasad v. State of M.P. [2000
(8) SCC 22] observed: "Yet another consequence would be that if any public
servant succeeds in protracting the criminal proceedings to the stage of
superannuation he can also claim the benefit of "special reasons", if
the High Court's reasoning is to be accepted.
We
find the High Court's approach not only erroneous but prenicious, and
therefore, impermissible in law. Such a ground cannot by any stretch of
imagination be treated as "special reasons"." The respondent has
filed an affidavit in this Court stating therein that he was facing the trial
since 1987 and the amount allegedly misappropriated has already been deposited
by him with the Government. He submits to have been punished departmentally
vide orders of the Chief Engineer dated 13.1.1993. He claims to be the only
bread earner in the family who has to support his wife, one unmarried daughter
and two sons aged about 18 and 17 years.
None
of the circumstances, stated in his affidavit, by itself constitute a
"special reason". However, keeping in view the general conspectus of
the case, we feel that under the totality of the circumstances narrated, the
respondent has made out a case for invoking the proviso to Sub-section (2) of
Section 5 of the Act. We have further been persuaded to give him such a benefit
in view of the observations made in his favour by the trial court in para 55 of
its judgment and the High Court in the judgment impugned before us.
Under
the circumstances, the appeal is allowed by setting aside the impugned judgment
of the High Court and restoring the judgment of the trial court by which the
accused-respondent has been convicted and sentenced for offence as noticed
earlier. However, giving the respondent benefit of proviso to sub-section (2)
of Section 5 of the Act, the sentences of imprisonment awarded to him for all
the offences are reduced from one year to six months. Such terms of
imprisonments of the sentences would run concurrently. Sentences of fine
imposed upon the respondent amounting to Rs.16,000/- in all are also reduced to
Rs.5,000/-. The respondent shall be taken into custody to undergo the sentence
on all account for a period of six months and to pay the fine in terms of the
order of the trial court. In default of the payment of fine he will undergo
further imprisonment as awarded to him by the trial court.
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