TMI Blog2011 (9) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... been received by the appellant is trivial in nature and also of the fact that due to the said conviction and sentence he lost his job, leniency may be shown and sentence be reduced to the period already undergone. He fairly admitted that out of the maximum period of one year, the appellant had served only 52 days in prison. HELD THAT:- In the case on hand, it is to be noted that on appreciation of oral and documentary evidence led in by the prosecution and the defence and on appreciation of entire materials, the court of first instance i.e. the trial Court convicted the appellant and sentenced him. The High Court, as an appellate Court, once again analysed all the material, and the prosecution had proved the guilt of the accused beyond reasonable doubt concurred with the conclusion arrived at by the trial Court and dismissed the appeal of the appellant. Inasmuch as both the courts have thoroughly discussed the matter with reference to the charges leveled against the appellant and in view of the limited order dated 28.01.2008 by this Court issuing notice confining to quantum of sentence only. we feel that it is not a case of such nature that the appellant should be heard on all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently transferred to Rajahmundry. Thereafter, PW-1 made a representation to his senior officer requesting him for posting at Vijayawada, Cheerala, Vetapalam or Tenali. Later, PW-1 was transferred to Vijayawada. ( c) As the appellant-accused was dealing with the transfers, the complainant (PW-1) met him on 05.11.1997 at his office to pursue about the issuance of the said transfer order. The appellant-accused asked him to come on 10.11.1997. When he met him on 10.11.1997, the appellant asked him to come on the next day as he was busy in pay-fixation work. On 11.11.1997, again he went to the office of the appellant but he could not find him on his seat. Again a day after i.e. on 13.11.1997, when he met the appellant-accused, he informed him that his request for transfer has been processed and the order is ready and the same has been placed before the A.P.O. for signature and asked him to come on the next day, i.e., on 14.11.1997, and demanded ₹ 200/- for releasing the said office order. ( d) On the same day, (PW-1) reported the matter in writing to the Inspector of Police, Central Bureau of Investigation (in short the CBI), Vija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the narration of facts, the appellant was convicted under Section 7 of the Act for which he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹ 500/-, in default, simple imprisonment for one month. He was also convicted for the offence under Section 13(1)(d)(ii) read with Section 13(2) of the Act and sentenced to undergo rigorous imprisonment for one year and fine of ₹ 500/-, in default, simple imprisonment for one month. The trial Court ordered that both the sentences of imprisonment shall run concurrently. The said conviction and sentence was affirmed by the High Court. If we confine ourselves to the limited extent of notice dated 28.01.2008, we have to hear both sides only on the quantum of sentence. However, Mr. Rangaramanujam, learned senior counsel for the appellant by drawing our attention to the recent judgment of this Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat , (2011) 6 SCC 312, submitted that in spite of limited notice, this Court, while exercising jurisdiction under Article 142 of the Constitution, in order to do complete justice while hearing the matter finally can go into the merits of the orders pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 makes it clear that in the facts and circumstances of that case, they permitted the appellants to urge all points on merits. 5) In the case on hand, it is to be noted that on appreciation of oral and documentary evidence led in by the prosecution and the defence and on appreciation of entire materials, the court of first instance i.e. the trial Court convicted the appellant and sentenced him as mentioned above. The High Court, as an appellate Court, once again analysed all the material, discussed the oral and documentary evidence and finding that the prosecution had proved the guilt of the accused beyond reasonable doubt concurred with the conclusion arrived at by the trial Court and dismissed the appeal of the appellant. Inasmuch as both the courts have thoroughly discussed the oral and documentary evidence with reference to the charges leveled against the appellant and in view of the limited order dated 28.01.2008 by this Court issuing notice confining to quantum of sentence only and even applying the analogy enunciated in Yomeshbhai (supra), we feel that it is not a case of such nature that the appellant should be heard on all points, consequently, we reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months but which may extend to five years and shall also be liable to fine. .. ( Emphasis supplied) 8) Section 13 deals with criminal misconduct by a public servant. As per sub-section (2) if any public servant commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. For clarity, we reproduce the said section hereunder: 13. Criminal misconduct by a public servant.- ( 1) A public servant is said to commit the offence of criminal misconduct, ( a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or ( b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso 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: 10) In order to substantiate the claim with the regard to the above, learned senior counsel for the appellant has relied on the decision of this Court in Bechaarbhai S. Prajapati vs. State of Gujarat , (2008) 11 SCC 163 and based on the same requested this Court to modify the sentence to the extent of period already undergone. We have gone through the facts in that case. It is true that even in the cited decision, the appellant accused demanded only ₹ 250/- and it was paid and accepted. Finally, the Special Judge framed charges for offence punishable under Sections 7, 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Though, these grounds may be attractive in respect of other offences where minimum sentence is not prescribed, in view of our reasonings in the earlier paras, the same cannot be applied to the case on hand. 13) About the request based on delay that the appellant has lost his job, undergone the ordeal all along etc. a lenient view be taken in this case, it is useful to refer decision of this Court in State of M.P. vs. Shambhu Dayal Nagar , (2006) 8 SCC 693 wherein it was held that: 32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana, (1997) 4 SCC 14, corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of effi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments. The relevant paras, which are useful, may be quoted: 11. We are fully alive of the fact that this Court has been exercising the power under Article 142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. Decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony, as it is evident from the judgments in Romesh Chander v. Savitri (1995) 2 SCC 7 , Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90 , Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490 , Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226 , Kiran v. Sharad Dutt (2000) 10 SCC 243 , Swati Verma v. Rajan Verma (2004) 1 SCC 123 , Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505 , Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410 , Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353 , Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 , Sangh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws . ( emphasis supplied) The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India (1998) 4 SCC 409 and E.S.P. Rajaram v. Union of India (2001) 2 SCC 186 held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. 16. Similar view has been reiterated in A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 , Bonkya v. State of Maharashtra (1995) 6 SCC 447 , Common Cause v. Union of India (1999) 6 SCC 667 , M.S. Ahlawat v. State of Haryana (2000) 1 SCC 278 , M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , State of Punjab v. Rajesh Syal (2002) 8 SCC 158 , Govt. of W.B. v. Tarun K. Roy (2004) 1 SCC 347 , Textile Labour Assn. v. Official Liquidator (2004) 9 SCC 741 , State of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. After saying so, the Court rejected the request of the parties to waive the statutory period of six months under the Act. 15) In Mota Ram vs. State of Haryana , (2009) 12 SCC 727, this Court, while reiterating the above principles has concluded that Article 142 cannot be exercised to negate the statutory provisions. 16) In Academy of Nutrition Improvement and Others vs. Union of India , JT 2011 (8) SC 16, the following conclusion about the applicability of Article 142 is relevant: 28. The question is having held that Rule 44I to be invalid, whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period. Article 142 of the Constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice, if exercise of such jurisdiction is not be contrary to any express provision of law. In Supreme Court Bar Association v. Union of India : 1998 (4) SCC 409, this Court observed: The Supreme Court in exercise of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 'clogging or obstruction of the stream of justice. See: Supreme Court Bar Association (supra) 17) Though the jurisdiction of this Court, under Article 142 of the Constitution of India is not in dispute, we make it clear that exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction, under Section 482 of the Criminal Procedure Code and this Court, under Article 142 of the Constitution, would not ordinarily direct quashing of a case involving crime against the society particularly, when both the trial Court as also the High Court have found that the charge leveled against the appellant under the Act has been made out and proved by the prosecution by placing acceptable evidence. 18) Finally, learned senior counsel for the appellant has cited certain orders of this Court wherein this Court has reduced the period of sentence already undergone while upholding the conviction. We have perused those orders. The orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence, if any, as available i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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