Heard Sri Manish Kumar assisted by Sri Manju Khare, learned counsel for the appellant and learned A.G.A.
This appeal is directed against the judgment and order dated 30.10.2002 passed by Sri K.P. Singh, Special Judge, P.C. Act, Lucknow in Misc. Case No. 1/86 (State Vs. P.S. Sinha) whereby appellant (Prakash Saran Sinha) has been convicted under Section 5(2) read with Section 5(1)(E) of the Prevention of Corruption Act and sentenced for a period of two years simple imprisonment, apart from fine of Rs. 25,000/-. In default, six months simple imprisonment was awarded.
At the outset, learned counsel for the appellant submits that on merits judgment of trial court is unassailable, however, he has addressed the Court on the quantum. Learned counsel for the appellant submits that appellant was working as Assistant Excise Commissioner, a promoted post from where he retired long back. Presently, he is nearly 83 years old. No useful purpose would be served by sending him jail at the fag end of life.
Learned counsel for the appellant further submits that he has already remained in jail for sometime. He has lost his reputation and credit and further incarceration would be not at all justifiable.
Learned A.G.A. submits that fine and minimum sentence cannot be reduced and in support of his case he relied upon the judgment of Hon'ble Apex Court given in the case of A.B. Bhaskara Rao Vs. Inspector of Police CBI, Visakhapatnam [AIR, 2011, Supreme Court, 3845].
After carefully going through the judgment, I find that the provisions of Prevention of Corruption Act, 1988 have been interpreted which provide for minimum sentence and not old Act (Act no. 2 of 47).
It is useful to refer to Para 9 of the judgment given in the case of A.B. Bhaskara Rao (supra) which is as under :-
"It is useful to refer that in the Prevention of Corruption Act, 1947 the same "criminal misconduct" which is available in Section 13 of the 1988 Act had been dealt with in Section 5 of the 1947 Act. Section 5(2) of the 1947 Act mandates that 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 to seven years and shall also be liable to fine. However, proviso to sub-section (2) of Section 5 gives power to the court that for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. Such relaxation in the form of a proviso has been done away with in the 1988 Act. To put it clear, in the 1988 Act, if an offence under Section 7 is proved, the same is punishable with imprisonment which shall be not less than six months and in the case of Section 13, it shall not be less than one year. No other interpretation is permissible. Other circumstances pleaded for reduction of sentence:"
Section 5(2) of the old Act is being reproduced below :-
"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 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."
From the above, it is apparent that provisions of Section 5(2) of the Act enables the Court to pass the sentence less than one year if there are special reasons, as such the judgment given in the case of Bhaskara Rao Vs. Inspector of Police CBI, Visakhapatnam [AIR, 2011, Supreme Court, 3845] is of no use to A.G.A.
It can be safely concluded that if offence has been committed under the old Act, sentence of imprisonment of less than/minimum can be passed for the special reasons recorded in writing but if impugned act is an offence under the Prevention of Corruption Act, 1988 (49 of 1988), Courts have been deprived of the power to reduce the minimum sentence prescribed by the statute for any reason whatsoever.
I have perused the papers from which it is apparent that age of appellant in the year, 1986 was 60 years. In character certificate, date of birth of the appellant is 09.02.1929, as such age of appellant at present is nearly 83 years and no useful purpose would be served by sending the appellant to jail at this stage. Learned counsel for appellant agrees that raise in fine would not amount to enhancement.
Consequently, in the interest of justice, impugned order is modified.
Appeal is partly allowed. Conviction under Section 5(2) read with Section 5(1)(E) is maintained, however, sentence is modified to the extent of period undergone in addition to fine of Rs.100,000/- (one lac) which will be deposited by the appellant within three months from today. If appellant does not deposit the abovesaid amount within the said period, he will have to undergo one year simple imprisonment.
Order Date :- 22.2.2012 krishna/*