Munilal Mochi Vs State
of Bihar & ANR.
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 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 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 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.
1.
2.
3.
4.
Heard
Mr. Nagendra Rai, learned senior counsel for the appellant and Mr. Gopal Singh,
learned counsel for the respondents.
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?
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, 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 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.
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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