1. The instant criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (in short 'Code'), has been preferred against the judgment and order dated 08.12.1987, passed by Additional Sessions Judge-II/Special Judge, Sultanpur in Session Trial No.4/86 whereby the appellants Bindhya Chal Singh, Satyendra Nath Upadhyay have been convicted and sentenced for one year rigorous imprisonment with fine of Rs.1000/- each for offence under Section 161 IPC and six months rigorous imprisonment for offence under Section 5 (2) of Prevention of Corruption Act, 1947 (in short 'PC Act, 1947'). They had been further directed to undergo three months imprisonment in default of payment of fine with further direction that all the sentences shall run concurrently.
2. The prosecution case, in brief, is that at the time of occurrence, appellant no.1 Bindhya Chal Singh was Assistant Consolidation Officer whereas appellant no.2 Satyendra Nath Upadhyay was Kanoongo in Consolidation Department, District Sultanpur. The complainant (P.W.2) filed an application to the then District Magistrate, Sultanpur, that both the appellants were demanding Rs.500/- each as a bribe for making reference for the purpose of notification of sale deed whereby land was purchased by complainant Maniram (P.W.2). In compliance of direction passed by the District Magistrate, Sultanpur, a trap team, headed by Trap Inspector Jagdamba Baksh Singh (P.W.5), was constituted, to trap the appellants and the appellants were caught while they were taking currency notes of Rs.500/- from Maniram (P.W.2) on 04.10.1985. Recovery memo of the said illegal gratification was prepared and case was registered under Section 161 IPC and under Section 5 (2) of P.C. Act, 1947 and after investigation, charge sheet was filed against the appellants.
3. During trial, the prosecution, in order to prove its case, examined Constable Ram Sewak (P.W.1), complainant Maniram (P.W.2), Head Constable Ram Asrey Gupta (P.W.3), Trap Inspector Jagdamba Baksh Singh (P.W.5), Ram Hit Verma (P.W.6) , Surendra Pratap Upadhyaya (P.W.7) and Radhey Shyam Pandey (P.W.8).
4. After conclusion of prosecution evidence, statement of appellants were recorded under Section 313 of the Code. They denied the prosecution story and alleged that they were falsely implicated in this case.
5. The learned trial Court, after conclusion of trial, convicted and sentenced both the appellants as above, vide impugned judgment and order.
6. Aggrieved by the said judgment and order, the appellants have preferred this appeal.
7. Heard Shri Rama Pati Shukla, learned counsel for appellants, Shri Brijendra Singh, learned AGA-I for the State and perused the record.
8. Learned counsel for appellants submitted that though appellants are innocent and have been falsely implicated and the trial court has convicted the appellants in a cursory manner, but he is not pressing this appeal on merits of the case. Learned counsel further submitted that the said occurrence happened in the year 1985 i.e. 35 years ago, an equal amount of bribe i.e. Rs.500-500 was alleged to be received by each appellants. Learned counsel further submitted that the appellants have been convicted for maximum period of one year imprisonment for the said offence. Learned counsel further submitted that at present appellant no.1 Bindhya Chal Singh, aged about 83 years; is completely bed ridden; and he cannot perform his routine work without taking assistance, whereas appellant no.2 is aged about 82 years and also cannot move anywhere frequently. Learned counsel further submitted that appellants were already in jail for 40 days in view of the peculiar facts and circumstances of the case as well as COVID 19 pandemic situation, no purpose would be served to sent the appellants to jail as such linent view may be adopted by the Court in reducing the sentence to the period already undergone.
9. In support of his submission, learned counsel for the appellants has placed reliance on catena of judgments rendered by Hon'ble Apex Court which are as follows :
(i) 2001 (4) 5 SC 502 (Ram Avadh Singh vs. State (through S.P., C.B.I./SPE) ;
(ii) 2010 (1) ADJ 683 Jagdish Saran Goyal vs. State of U.P.
10. Learned AGA appearing for State vehemently opposed but submitted that looking into COVID 19 pandemic situation and considering other facts and circumstances of the case, he has no objection on the quantum of sentence if the fine, imposed upon the appellants is increased.
11. I have considered the rival submissions made by learned counsel for both the parties and perused the record.
12. Since the learned counsel for the appellants has not made any submission regarding merit of the impugned judgment and has only submitted for reduction of quantum of sentence, the impugned judgment, so far as conviction of both the appellants is concerned, is affirmed. Now the question arises whether appellants are entitled for any linent view as well as for period undergone.
13. In (1974) 3 Supreme Court Cases 85 B.G. Goswami vs. Delhi Administration, the Hon'ble Supreme Court while considering the quantum of sentence awarded for offence under Section 4 (1) and Section 5 (1) (d) of PC Act, 1947 has held as under :
"As already observed, the appellant's conviction under Section 161 IPC was rightly upheld by the High Court and there is no cogent ground made out for our interference with that conviction. The sentence of imprisonment imposed by the High Court for both these offences is one year and this sentence is to run concurrently. The only question which arises is that under Section 5 (1) (d), read with Section 5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year and there must also be imposition of fine. The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence ; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to Jail now after seven years of the agony and harassment of these proceedings when he is also going to lose his job and has 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."
14. In 2014 (4) Crimes 455 (SC) Gulmahmad Abdulla Dall and another vs. State of Gujarat and others; where the occurrence had taken place 27 years ago, Hon'ble Supreme Court treated the period undergone by the appellant as sufficient for substantive sentence and enhanced the fine.
15. In Jagdish Saran Goyal (Supra), this Court for offence under Section 5 (2) of PC Act, 1947 and for offence under Section 161 IPC., where the appellants were in jail for 23 days and offence was happened more than 30 years ago, reduced the sentence of two years awarded by the trial Court to the period already undergone by the appellants by imposing fine of Rs.1000/-.
16. In Ram Avadh Singh (Supra), Hon'ble Supreme Court has reduced the sentence of appellant for the period already undergone for offence under Section PC Act, 1947.
17. Thus, from perusal of aforesaid principle of law laid down by Hon'ble Supreme Court, it transpires that in view of peculiar facts and circumstances of the case, the sentence of the appellants may be reduced to period already undergone by them in jail.
18. Admittedly, in this case, the occurrence took place 35 years ago and the appellants had been found guilty for taking illegal gratification of Rs.500/- each and they have been convicted only for maximum period of one year rigorous imprisonment. According to learned counsel for appellants, the appellants are more than 80 years and are unable to move freely anywhere. They were in jail for 40 days.
19. In view of peculiar facts and circumstances of the case, I am of the view that quantum of sentence of appellants may be reduced to the period already undergone by them in jail with enhancement of fine imposed against them from Rs.1000/- to Rs.3000/-.
20. Hence, the appeal is partly allowed. The conviction of the appellants for offences punishable under Section 161 IPC and Section 5 (2) of Prevention of Corruption Act, 1947 is confirmed but the quantum of sentence is modified and is reduced to period already undergone by the appellants for the said both offences. Both the appellants namely Bindhya Chal Singh and Satyendra Nath Upadhyaya shall pay an amount of Rs.3000/- as fine within two months.
21. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance.
Order Date :- 12.1.2021 P.s.
Case :- CRIMINAL APPEAL No. - 752 of 1987 Appellant :- Bindhya Chal Singh & Anr Respondent :- State of U.P.
Counsel for Appellant :- S.P. Shukla,Mohd. Arif Khan,R.,Rajesh Shukla,Rama Pati Shukla,Rishad Murtaza,Vijay Chand Singh Counsel for Respondent :- Government Advocate Hon'ble Virendra Kumar Srivastava,J.
Supplementary affidavit filed by learned counsel for the appellants is taken on record.
Shri Rama Pati Shukla, learned counsel for appellants and Shri Brijendra Singh, learned AGA-I for the State are present.
Partly allowed.
For orders, see order of date passed on separate sheets.
Order Date :- 12.1.2021 P.s.