Mano Kalika Singh vs State of U.P.

Hon''ble A.P. Sahi, J.—The appellant - Mano Kalika Singh was put to trial and was ultimately convicted to undergo the sentence of two and a half years of rigorous-imprisonment u/s 5(2) of the Prevention of Corruption Act, 1947, and was further sentenced to pay a fine of Rs. 200/- with a concurrent sentence of one and a half years u/s 161 I.P.C. The appellant was already under custody when the sentence was pronounced and he was sent to Jail to serve out the sentence awarded to him by the learned Special Judge, Fatehpur vide his judgment dated 24.11.1981. The appellant preferred an appeal which was admitted on 27.11.1981 and pending appeal the appellant was released on bail. This appeal has tottered for 31 years to reach for hearing.

At the very outset it may be noted that the learned counsel for the appellant having extensively taken the Court through the entire paper book has urged that he presses the appeal only on the point of sentence keeping in view the advanced age of the appellant which according to the learned counsel is about 70 years at this point of time.

The appellant was convicted after a trial commenced on the basis of the recovery of Rs. 100/- in a trap laid against him.

The story as unfolded by the prosecution on facts is that the appellant Mano Kalika Singh was posted as a Head Moharir at Police Outpost Narauli, Police Station Kishunpur, District Fatehpur when an alleged dispute took place between one Krishna Chandra and Ram Prakash, brother of Bhanu Prakash for the return of Rs. 50/- which Krishna Chandra is said to have taken as a loan. On demand of repayment by Ram Prakash, Krishna Chandra is alleged to have threatened him to get him arrested and thereafter gradually the story of the involvement of the appellant as Head Moharir came into being when a rumour was spread about a theft having been committed at the house of Krishna Chandra. An F.I.R. is said to have been lodged on 29.10.1977 by Krishna Chandra, and it is in this context that Mano Kalika Singh is alleged to have threatened Ram Prakash and Bhanu Prakash and later on demanded a bribe of Rs. 200/- or else he would falsely implicate them in the case of theft as mentioned hereinabove.

It is at this stage, the allegation of the prosecution is that the aforesaid threat occurred on 9.11.1977 and again repeated on 10.11.1977. Bhanu Prakash then promised to arrange Rs. 100/- and to pay the same to the accused within two days whereupon the accused asked one Ram Tirath also to pay Rs. 100/-. In the aforesaid background and of the alleged demand of bribe by the appellant, Bhanu Prakash went to Kanpur via Fatehpur accompanied by a lawyer Surya Bali Nishad and met the local M.P. Manohar Lal informing him about the same who advised them to meet the Superintendent of Police (Vigilance) at Kanpur. On hearing their story, a written request was entertained by the S.P. (Vigilance) written in handwriting of Bhanu Prakash on which a statement was recorded and P.W.-1 the Inspector of Police - Labh Chandra Sharma was directed by the S.P. (Vigilance) on 14.11.1977 to lay a trap.

According to the pre-arranged plan the trap was laid and on 16.11.1977 the Inspector - Labh Chandra Sharma issued directions to Bhanu Prakash to meet him near a temple situate near the Post Office in the village of Kishunpur. The Inspector - Labh Chandra Sharma accompanied by another Inspector Sri Kishan Singh and two constables of the Vigilance Department arrived at the temple at about 10.00 a.m. on 16.11.1977 where they were informed that Bhanu Prakash had arranged with Mano Kalika Singh to meet on 17.11.1977 for paying the bribe. The two Inspectors stayed back at the house of one Deen Bandhu - P.W.-3 under a pretext of belonging to the Education Department and Bhanu Prakash produced Rs. 100/- in the presence of the witnesses Deen Bandhu and one Nathu Prasad whereafter the Inspector - Labh Chandra Sharma put his initials on the Currency-Note of Rs. 100/-. The said Note was treated with Phenolphthalein powder by Kishan Singh. The other Inspector, and his hands was washed in a solution of Sodium Carbonate whereafter the solution turned red and accordingly sealed in a phial duly signed by Bhanu Prakash and the Inspector.

The said team then departed for village Narauli, where the Police Outpost is situate, for laying a trap as Deen Bandhu and Nathu Prasad had refused to accompany them. Gurushahai, the Village Chief was also requested to be a witness who also declined company whereafter the Team reached the house of Bhanu Prakash. The Team was informed that Mano Kalika Singh alongwith Dwarika Prasad would soon be coming to his house and accordingly the Team took position at the site where the said bribe is said to have been accepted. The details of the positioning have already been entered in detail in the judgment of the trial court.

Ram Dhani the brother-in-law of Bhanu Prakash who is P.W.-5 was also present. Mano Kalika Singh arrived as promised where the talk between Bhanu Prakash and Mano Kalika Singh took place assuring Bhanu Prakash that he need not worry and he shall be given his protection provided a sum of Rs. 100/- is paid to him. The prosecution story also unfolds that the appellant exercised great influence wherever he was posted and he always left behind favourite persons who looked after his interest. It was also alleged that he stated that he had to spend lot of money in order to shut the mouth of other constables and at the end of this conversation Bhanu Prakash took out the Currency-Note of Rs. 100/- from the front pocket of his Bushirt and handed it over to the appellant Mano Kalika Singh who held it in his right hand and then transferred it to his left hand and then into the side pocket of a White Kurta which he was wearing at that time.

Immediately thereupon the Team led by Inspector Labh Chandra Sharma emerged from their camouflage and after showing his Identity Card to the appellant demanded the Currency-Note from the appellant who produced the same and handed it over to Labh Chandra Sharma. The said Note was tallied with its particulars that were noted down and the Currency Note was sealed in an envelope and a solution of Sodium Carbonate was prepared. Both hands of the appellant were washed and then the colour of the solution turned light red. The same was also sealed in a phial. The Kurta from which the appellant had produced the Currency Note was also taken off from the person of the appellant and the pocket containing the Note was also dipped in the solution of Sodium Carbonate which also turned light red. The same was also sealed in a phial. The Kurta of the accused was also sealed, whereafter the appellant was led to the Police Lock-up, and after preparation of all exhibits the case was registered on the same day.

One Basdeo Sahai P.W.-7 Inspector of the Vigilance Department was directed to investigate the case who recorded the statements and the chargesheet was ultimately submitted after completion of investigation upon proper sanction by the Superintendent of Police on 18.5.1979.

The trial proceeded and the appellant was examined. The appellant denied the charges and pleaded not guilty. The prosecution examined seven witnesses including the trap party, the Superintendent of Police (Vigilance) and the Investigating Officer. Fifteen documents and eight material exhibits were produced and the prosecution upon the examination of these witnesses closed its case whereafter the statement of the appellant was recorded u/s 313. While setting up his denial he stated that he did not know anything about the taking of loan by Krishna Chandra Sharma and that he was on emergency duty posted at Police Lines, Fatehpur on the date of occurrence. He also denied the lodging of the F.I.R. by Krishna Chandra or involving himself in the demand of a bribe of Rs. 200/- from Bhanu Prakash and Ram Teerath in order to relieve them from a theft case. He also denied the entire story of the proceedings of the trap and alleged that one Surya Bali Nishad who was the General Secretary of the Congress Party bore ill-will against him, as the members of his community who were miscreants were not being allowed to work according to their wish was instrumental in a conspiracy against the appellant. He however did not lead any evidence in defence.

Having briefly stated the aforesaid facts, it is clear that the appellant a former Head Constable in the U.P. Police Services was trapped accepting a bribe of Rs. 100/- and the witnesses have corroborated the same by addressing him as "Chief Sahab" in their statements. This title is being mentioned out of compulsion being part of evidence and not by choice. The appellant appears to have virtually extracted the said amount for an act the background whereof has been noted hereinabove. The defence by the appellant that he was a victim of a wide conspiracy and that the trap was stage managed has not been accepted by the trial court. On sifting of the evidence the trial court convicted the appellant holding him guilty of having accepted the bribe.

Having gone through the records and having heard Sri P.K. Singh and Sri D.B. Singh counsel for the appellant, who have confined their argument only to the extent of the award of sentence, this Court has now to proceed only to consider the evidence on record and the manner of involvement of the appellant for the purpose of considering the prayer of reduction in sentence.

It is to be remembered that so far as this case is concerned it was a prosecution under the 1947 Act. Section 5(2) of the 1947 Act mandates that any public servant who commits a 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, there is a proviso to sub-section (2) of Section 5, extending powers to the court that for any special reasons to be recorded in writing it may impose a sentence of less than a year. This provision has been done away with under the new Act of 1988.

Learned counsel for the appellant submitted that long delay in the disposal of this appeal may be considered as a ground for the reduction of sentence. They further submit that the quantum of the alleged amount of bribe should also be taken in account. The appellant has also lost his Job and the story of the prosecution reveals that the trap laying was part of a long thought of conspiracy and that no such trap in fact did lead to the conviction of the appellant. In essence the appellant was a victim of a conspiracy and therefore this part of the defence should also be considered for reducing the sentence as the prosecution has succeeded on shaky evidence. They have relied on several decisions to substantiate their contentions which are being dealt with hereinafter.

The learned A.G.A. Sri Mahendra Bahadur Singh on the other hand contended that on facts this is a clear case where the appellant in the discharge of his duties as a Head Constable with the responsibility of a Moharir had motivatively and deliberatively extracted bribe from the complainant on the pretext of involving the complainant in a theft case. This motivated and calculated attempt of the appellant was therefore sufficient to believe that the appellant had indulged in a corrupt act and the entire trap that was led, leaves no room for doubt that the extraction and acceptance of bribe to the tune of Rs. 100/- was proved beyond reasonable doubt and was recovered from him.

Learned A.G.A. contends that this is one of those cases where the prosecution has completely established the guilt, and the statement of the witnesses as well as the alleged defence of the appellant nowhere indicate any element of the alleged conspiracy on which ground leniency is being sought for lessening the sentence. He contends that in view of the provisions of the 1947 Act and the facts of this case no relaxation should be granted as there are no special reasons existing that may warrant any reduction in sentence.

The arguments that were advanced by the learned counsel for the appellant rest on the statement of the appellant u/s 313 Cr. P.C. I have perused the same and the said statement was nowhere corroborated by leading of any evidence. The burden lay on the appellant to have led evidence to substantiate his contention of the alleged conspiracy of the involvement of political leaders. No attempt worth the name has been made and in the absence of any evidence having been led the said defence of the appellant has been rightly rejected by the trial court and also cannot be accepted by this Court as a reason for reducing the sentence as prayed for by the learned counsel for the appellant. The question of the evidence being shaky so as to reflect a conspiracy against the appellant does not merit any consideration even otherwise as the argument is now confined to the question of sentence.

Three other arguments as noted above were raised namely, the question of age, the quantum of the amount alleged to have been recovered as a bribe, and the loss of Job of the appellant. During the course of the arguments itself and before its conclusion the Court pointed out to the learned counsel for the appellant the judgment of the apex court in the case of A.B. Bhaskara Rao Vs. Inspector of Police, CBI, Vishakapatnam, (2011) 10 SCC 259 calling upon them to provide any clue of legal principle to the contrary as laid down in the said judgment. Paragraph 14 of the said judgment referring to the Old Act and the New Act indicated the distinction between the procedure of sentencing with regard to such cases.

The said judgment recorded its conclusions in Paragraph 30 and enunciated the following principles:-

Paragraph 30. From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge:

a) When the Court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects.

b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the Court to consider the delay and its effect and the ultimate decision. 2

c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution.

d) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence.

e) Though Article 142 of the Constitution gives wider power to this Court, waiver of certain period as prescribed in the Statute imposing lesser sentence than the minimum prescribed is not permissible.

f) An order, which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but also it cannot even be inconsistent with the substantive provisions of the relevant Statute. In other words, this Court cannot altogether ignore the substantive provisions of a Statute.

g) In exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy.

h) The power under Article 142 of the Constitution is a constitutional power and not restricted by statutory enactments. However, this Court would not pass any order under Article 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case.

i) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.

Learned counsel contends that the said judgment is under the New Act, 1988, and therefore, keeping in view the proviso to Section 5(2) of the 1947 Act, this court may in the facts and circumstances of this case proceed to consider the reduction of sentence accordingly.

The exercise of discretion by courts in the manner of sentencing has been considered by the apex court while dealing with a matter where the benefit of the Probation of Offenders Act was involved. The court observed that the law on the subject of sentencing has not been developed and codified in our country to the extent it has been enumerated and defined in other countries throughout the world. The said view has been expressed in the case of State of Punjab Vs. Prem Sagar and Others, . The judgment in Paras 5 to 19 thereof describes the various approaches that courts adopt for this exercise. The ratio of the said decision has however been expressed in the following words extracted from Para 14:-

To what extent should the judges have discretion to reduce the sentence so prescribed under the statute has remained a vexed question.

However, in India, the view always has been that the punishment must be proportionate to the crime. Applicability of the said principle in all situations, however, is open to question. Judicial discretion must be exercised objectively having regard to the facts and circumstances of each case.

The Court after referring to the policy of sentencing as proposed in other countries and by authorities of repute concluded in Para 31 as follows:-

We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It requires application of mind. The purpose of imposition of sentence must also be kept in mind.

Considering the aforesaid ratio, this court has to find out for itself a guidance for the purpose of understanding the arguments raised by the learned counsel for the appellant in order to consider the relief of reduction in sentence.

Learned counsel have cited the decision in the case of A. Wati AO Vs. State of Manipur reported in 1995 SCC (Cri) 1130 where in paragraph 7 the apex court while reversing the order of the High Court observed that though the delay has some relevance but on the facts of that case where the delay in trial was of about five years could have been a ground for reducing the sentence from the minimum prescribed, but not till the rising of the court as had been done by the High Court. Accordingly, the apex court considering the delay enhanced the sentence of imprisonment for six months even though the appeal was dismissed. The said decision can only be taken to be a guidance on the issue of delay.

The learned counsel then cited the decision in the case of State of Maharashtra Vs. Rashid B. Mulani reported in (2006) 1 SCC (Cri) 408 where the apex court in paragraph 19 ruled as under:-

Para 19. In regard to sentence, we find that the incident occurred about 19 years ago. The matter was pending for about 3 years before the Special Judge, and about 8 years before the High Court and, thereafter, for 8 years before this Court. The accused was hardly 32 years old when the incident occurred and now more than 50 years old. The accused was a Talathi coming from a poor background with a family to support. In the circumstances, while restoring the conviction, we reduce the sentence from one year to four months both u/s 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. Both the sentences to run concurrently. The accused who is on bail, shall surrender forthwith to serve out the sentence.

To the same effect another decision of the apex court in the case of Bechaarbhai S. Prajapati Vs. State of Gujarat reported in (2009) 1 SCC (Cri) 380 has been cited where the apex court in paragraph 17 held as under:-

Para 17. The alternative submission relates to the harshness of sentence. The occurrence took place nearly seven years back. It is stated that the appellant has suffered custody for more than six months. Taking into account all these respects, we feel interest of justice would be best served if the sentence is reduced to the period undergone, while maintaining the conviction. It is to be noted that the minimum sentence prescribed u/s 7(2) of the Act is six months.

At this stage one other decision relied upon by the learned counsel for the appellant deserves mention. In the case of Biranchi Narayan Mohanty Vs. State of Orissa reported in 2002 SCC (Cri) 562 where taking notice of the consequential punishment of loss of government job the apex court extended the benefit of reduction in sentence from one year to six months. Paragraph 4 of the said judgment is quoted herein under:-

Para 4. The learned counsel for the appellant lastly prayed that the sentence awarded may be reduced as the appellant has suffered other consequential punishment of loss of government job. Having regard to this fact, we reduce the sentence of imprisonment from one year to a period of six months. The sentence regarding fine shall, however, remain unaltered. This sentence shall also be treated for conviction u/s 161 IPC.

Apart from the aforesaid decisions two other decisions have also been relied upon by the learned counsel for the appellant which have a bearing on the case.

As noted above, the learned counsel''s attention had been drawn to the case of A.B. Bhaskara Rao (supra). It is to be noted that another judgment by the same bench of the apex court and of the same strength has been cited by the learned counsel namely Munilal Mochi Vs. State of Bihar and Another, . In that case the accused retired from the post of Deputy Collector on 1st of October, 2003 but was ultimately convicted by the trial court in 2004 in relation to the occurrence of 1982-83. The apex court proceeded to consider the point of delay and the protracted litigation as well as the age of the appellant which was a case under the Old Act of 1947 and ruled as under by modifying the sentence already undergone which was to the extent of six months in that case. Paragraph 8 of the said judgment is extracted hereinunder for a better understanding of the said decision:-

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 7 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.

Learned counsel for the appellant have vehemently urged that in the light of the aforesaid decision by the same bench which had decided the case of A.B. Bhaskara Roa (supra) later on in the same year has taken a view which supports the argument of the appellant. To further buttress this submission, the learned counsel has relied on a learned Single Judge decision of this Court in the case of Prakash Saran Sinha Vs. State of U.P. reported in 2012 (77) ACC 320.

Having considered all the said decisions cited at the bar, there is no cogent or valid reason available looking to the entire gamut of evidence led in the case to reduce the sentence of the appellant below the minimum invoking the proviso to Section 5(2) of the 1947 Act. Learned counsel for the appellant has been unable to provide any reason which may impel this Court to award a sentence less than the minimum keeping in view the established guilt of the appellant having been proved beyond reasonable doubt.

The next question is about reducing the sentence from the period of two and half years in view of the issue of delay and the age of the appellant which was 38 years at the time when he gave his statement u/s 313 Cr. P.C. on 6.11.1981 which would now work out to be about 70 years.

The issue relating to long delay as ruled in A.B. Bhaskara Rao''s case (supra) is that long delay in disposal of the appeal or any other factor may not be a ground for reduction of sentence when the statute prescribes a minimum sentence. In other cases where no minimum sentence is prescribed, the apex court has ruled that it is open to the Court to consider the delay and its effect. In my understanding, this ratio in A.B. Bhaskara Rao''s case has been laid down without taking notice of the judgment by the same bench in the case of Munilal Mochi (supra) the ratio whereof has been extracted hereinabove. The case of Munilal Mochi (supra) is on the provisions of the Old Act of 1947 which is directly applicable in the present case.

In such a situation, I am inclined to follow the guideline keeping in view the similarity of facts in the present case with that of the case of Munilal Mochi (supra), inasmuch as, in the instant case also the occurrence is of the year 1977 and the conviction was brought about in 1981. The present appeal has been pending in this Court for the past 31 years. The appellant has already attained the age of about 70 years. In the circumstances, the case of Munilal Mochi comes to the aid of the appellant for the consideration of reduction in sentence.

Having noticed the aforesaid distinction between the two judgements of the apex court referred to hereinabove it would be appropriate to mention that the judgment in the case of Prakash Saran Sinha (supra) by a learned Single Judge of this Court proceeded to consider the case of A.B. Bhaskara Rao by making the following observations in paragraph 6:-

Para 6. 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).

In my humble opinion the aforesaid premise does not appear to be correct, inasmuch as, the case of A.B. Bhaskara Rao (supra) in paragraph 14 has considered the provisions of the Old Act as well, and therefore, it cannot be said that the apex court was not aware of the provisions of the Old Act which were considered simultaneously alongwith the provisions of the 1988 Act. Thus, to that extent, I am unable to find myself in agreement with the said observations of the learned Single Judge.

There is yet another reason to record my deference to the view expressed in paragraph 10 of the said judgment of the learned Single Judge which is quoted hereinbelow:-

Para 10. 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 9.2.1929, 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.

A perusal of the said paragraph would indicate that age was taken to be a relevant factor but the observations "that no useful purpose would be served by sending the appellant to Jail at this stage" may not be in line with the purpose of sentencing in a case involving Prevention of Corruption Act. A purpose cannot be useful or unuseful when it comes to a conviction under an Act involving the social fabric of the society for example under the Prevention of Corruption Act. The learned Single Judge has therefore proceeded to reduce the sentence to the extent of period undergone by enhancing the fine which in my opinion cannot be a reason for reducing the sentence when the guilt has been upheld. This may have been done to strike a balance so as to justify the reduction of sentence which in view of the law laid down in A.B. Bhaskara Rao''s case after considering the Old Act as well may not be justified.

To my mind there is a statutory purpose of sentencing, whether it is deterrent, punitive or retributive is dependant on the nature and gravity of the offence. But there is a purpose of sentencing. It cannot be said the purpose of a sentence is useless or that "no useful purpose can be served". This would amount to sitting over the wisdom of the legislature. The purpose of imprisonment is not to be compensated by fine. The imposition of fine is an additional deterrent to be imposed in appropriate cases for which the amount of fine has to be assessed on some principle. Merely because fine can also be imposed cannot be by itself a reason to reduce the sentence of imprisonment. It is not an alternative for imprisonment. Thus an enhanced amount of fine, in a case of established corruption, that may reflect as a reason or substitute for imprisonment should not be countenanced as it would send a wrong message to the society that courts have resorted to condoning severe punishments imposed by law in pecuniary terms. The accused can also take undue advantage by citing such law as an example and as such in my humble view, in view of the current scenario, this principle of sentencing should not be encouraged by courts.

The issue as to what can be a special reason was raised in the case of Meet Singh Vs. State of Punjab, where what is the meaning of special reasons has been spelt out. The relevant paragraphs are 7, 8 and 9. The said view has been noticed and followed by the apex court decision in State of Rajasthan Vs. Vinod Kumar, . The said decision clearly explains the phrases simple reasons, exceptional reasons, extraordinary reasons and special reasons. The court then in paragraphs 23 and 24 has held as under:-

Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.

The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. The legislature introduced the imposition of minimum sentence by amendment in the IPC w.e.f. 25.12.1983, therefore, the courts are bound to bear in mind the effect thereof. The court while exercising the discretion in the exception clause has to record "exceptional reasons" for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straight jacket formula can be laid down.

The apex court after having expressed its opinion came to the conclusion that loss of job and the accused having a family cannot be a special reason for reducing the minimum sentence nor for the reasons as enumerated therein. The aforesaid ratio therefore has to be kept in mind while dealing with the cases under the Old Act of 1947 for the purpose of recording special reasons.

The purpose of sentencing has a very salutary purpose. This has been clearly explained in the decisions referred to hereinabove and hereinafter and in my opinion in cases of corruption it should be leaning towards the deterrent principle and not a rule of mercy. It is this purpose which should be kept in mind which is the only useful purpose of sentencing under criminal jurisprudence particularly in offences of this nature. The substitution of fine to balance imprisonment may not be an appropriate measure as the crime of corruption cannot be curbed by enhancing or imposing a fine in lieu of imprisonment which may give a feeling of camouflaging or protecting a government servant of deviant behaviour.

The appellant therefore cannot get any benefit in my opinion on the ratio of the judgment in the case of Prakash Saran Sinha (supra).

Having considered the aforesaid aspects and coming to the ultimate argument of reduction in sentence, as observed hereinabove, the appellant''s counsel Sri P.K. Singh has made out a case for reduction in sentence in terms of the view expressed by the apex court in the case of Munilal Mochi which does not appear to have been noticed in A.B. Bhaskara Rao''s case (supra) even though delivered by the same bench. The able assistance of Sri Singh in pointing out the same deserves appreciation and reflects his optimum preparedness as a lawyer of this Court.

Accordingly, on the facts of the present case and keeping in view the prolonged conclusion of this appeal since 1981 and almost 39 years having passed from the date of occurrence, and the advanced age of the appellant as noted above, the interest of justice would be met if the sentence is reduced to the minimum sentence of one year as provided for under the 1947 Act.

I am also supported in the aforesaid view taken by me by the decision of the apex court in the case of B.G. Goswami Vs. Delhi Administration, which is also a decision under the Old Act of 1947. On the issue of reduction of sentence the following plea was raised before the apex court as noted in paragraph 6 of the said judgment:-

In that event, the learned counsel made a plea of, what he called, mercy, by submitting that the offence was committed as far back as January, 1966 and he has undergone the harassment of the trial and of the appellate proceedings during all these years and has been on bail since 1970. This, according to the submission, should be considered a sufficient punishment, particularly when the appellant must also lose his job.

While dealing with sentencing part and reduction thereof the apex court in paragraph 10 ruled as under:-

The sentence of imprisonment imposed by the High Court for both these offences 1 year and this sentence is to run concurrently. The only question which arises is that under s. 5(1)(d) read with s.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 reclaim 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 sentences both lose their efficaciousness. One does not deter and the other may frustrate 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 7 years of the annoy and harassment of these proceedings when he is also going to lose his 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.

The aforesaid decision therefore also indicates a guidance which is in line with Munilal Mochi''s case (supra).

The same view was followed in the case of Ramesh Kumar Gupta Vs. State of Madhya Pradesh, which is quoted hereinunder:-

Para 8. Now coming to the question of sentence, it is a very old case and the occurrence itself is said to have taken place in the year 1979. All these years the accused has undergone the agony of criminal proceedings. He has lost his job and we are told that he has a large family to support. In similar circumstances, in B.G. Goswami Vs. Delhi Administration, , the sentence of imprisonment was reduced to the period already undergone. From the records, it appears that the appellant was in jail for some time. Accordingly while confirming the conviction we reduce the sentence of imprisonment to the period already undergone. The sentence of fine with default clause is however, maintained. Subject to the above modification of sentence, the appeal is dismissed.

The aforesaid decisions however do not find mention either in the case of Munilal Mochi (supra) or the case of A.B. Bhaskara Rao (supra).

It deserves to be added that no further reduction is possible on the facts of this case as indicated above and any mercy or leniency does not deserve to be shown when the appellant happens to be a law protector having violated the law himself.

Accordingly, the appeal is dismissed subject to the modification that the sentence of the appellant shall stand reduced to the minimum of one year rigorous imprisonment. The sentence of the court below stands modified accordingly. The sentence of fine is upheld. The appellant shall therefore now taken into custody to serve out the remaining part of the sentence as confirmed hereinabove after reducing the period already undergone.