2000 JTR(SC) 1258
2001 2 JLJ 158 ; 2000 8 SCC 22 ; 2000 SCC(Cri) 1450 ; 2000 KHC 4115
SUPREME COURT OF INDIA
K.T.Thomas : R.P.Sethi
Jagjeevan Prasad
Versus
State Of M.P.
Case No. : 618 of 2000
Date of Decision : 8/3/00
Superannuation or retirement from service does not constitute a "special reason" under the Prevention of Corruption Act to reduce the mandatory minimum sentence of one year. Additionally, the burden lies on the public servant to prove that received funds were not illegal gratification.
Act
Referred
:PREVENTION OF CORRUPTION ACT
: S.5(2), S.13(2)
(A) Prevention of Corruption Act, 1947 - Section 5(2) - Indian Penal Code - Section 161 - Public servant caught in a trap for accepting bribe - Minimum sentence prescribed under Section 5(2) of the PC Act is imprisonment for one year - Proviso allows the court to impose a sentence less than one year for any "special reason recorded in writing" - Superannuation or retirement from service cannot be treated as a "special reason" for reducing the sentence below the statutory minimum - Such reasoning would imply that any public servant on the verge of retirement could commit such offenses with impunity, or that protracting proceedings until retirement could yield a benefit in sentencing (Paras 3, 8).
(B) Burden of Proof - When a public servant is found to have received an amount, the burden is on the public servant to show that the amount received was not illegal gratification; failure to discharge this burden leads to the conclusion that the offense has been committed (Para 7).
Facts of the case:
A public servant was accused of demanding a bribe of Rs 500 to issue certified copies of revenue records. He was caught red-handed by an Anti-Corruption Squad. The accused claimed the amount was received on behalf of another person for land revenue. While the trial court acquitted him, the High Court convicted him and sentenced him to pay a fine and imprisonment until the rising of the court, citing the appellant's retirement as a special reason for the reduced imprisonment.
Findings of Court:
The court found the defense of the appellant to be an afterthought unsupported by reliable evidence. It held that the High Court's approach in treating retirement as a "special reason" to reduce the mandatory minimum sentence was erroneous and impermissible in law.
Issues: Whether the conviction was sustainable and whether the sentence awarded by the High Court, which was less than the statutory minimum period, was legally permissible.
Ratio Decidendi: The court ruled that the burden of proof lies with the public servant to proveThat received money was not illegal gratification. Furthermore, superannuation does not constitute a "special reason" under the law to deviate from the mandatory minimum sentence of one year, as doing so would create a loophole for public servants near retirement.
Result: Appeal disposed of and sentence enhanced to imprisonment for a period of one year.
(B) Burden of Proof - When a public servant is found to have received an amount, the burden is on the public servant to show that the amount received was not illegal gratification; failure to discharge this burden leads to the conclusion that the offense has been committed (Para 7).
Facts of the case:
A public servant was accused of demanding a bribe of Rs 500 to issue certified copies of revenue records. He was caught red-handed by an Anti-Corruption Squad. The accused claimed the amount was received on behalf of another person for land revenue. While the trial court acquitted him, the High Court convicted him and sentenced him to pay a fine and imprisonment until the rising of the court, citing the appellant's retirement as a special reason for the reduced imprisonment.
Findings of Court:
The court found the defense of the appellant to be an afterthought unsupported by reliable evidence. It held that the High Court's approach in treating retirement as a "special reason" to reduce the mandatory minimum sentence was erroneous and impermissible in law.
Issues: Whether the conviction was sustainable and whether the sentence awarded by the High Court, which was less than the statutory minimum period, was legally permissible.
Ratio Decidendi: The court ruled that the burden of proof lies with the public servant to proveThat received money was not illegal gratification. Furthermore, superannuation does not constitute a "special reason" under the law to deviate from the mandatory minimum sentence of one year, as doing so would create a loophole for public servants near retirement.
Result: Appeal disposed of and sentence enhanced to imprisonment for a period of one year.
R.P.SETHI, J.
(1) LEAVE granted.
(2) THE appellant was charge-sheeted for the offences under Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the PC Act, 1947") and Section 161 of the Indian Penal Code. The trial court acquitted him. But when the State filed an appeal in challenge of the order of acquittal the High Court of Madhya Pradesh set aside the order of acquittal and convicted him under both counts. Regarding Section 161 of the Indian Penal Code he was sentenced to pay a fine of Rs 500 and regarding Section 5(2) of the PC Act, 1947 he was sentenced to imprisonment till rising of the court and a fine of Rs 500. He has filed this appeal by special leave.
(3) WHEN the special leave petition was heard we noticed that the High Court has not passed the sentence in accordance with law since Section 5(2) of the PC Act, 1947 prescribes that the sentence shall not be less than imprisonment for one year, though the proviso empowers the court to impose a sentence of imprisonment less than one year "for any special reason recorded in writing". The only reason shown is that the appellant has already retired from service. For imposing a flee of sentence of imprisonment till the rising of the court we issued notice to the appellant to show cause why the sentence shall not be enhanced to imprisonment for at least the minimum period prescribed under law, if the conviction is liable to be upheld.
(4) AS he filed this appeal challenging the conviction we heard learned a counsel for the appellant relating to the sustainability of the conviction.
(5) THE gist of the case against him is that as Patwari he was required to issue certified copies of certain revenue records to Public Witness 1 for which he made a demand of Rs 500 as bribe. Public Witness 1 informed the Anti-Corruption Squad and arranged a trap. The amount of Rs 500 was paid to Patwari and the Anti- Corruption Squad caught the appellant red-handed.
(6) THE appellant did not dispute that Public Witness 1 handed over the amount of Rs 500 on the date alleged. He put forward a defence that the said amount was paid to him on behalf of DW 5, one Ram Singh, from whom amounts were due towards land revenue. So, the prosecution was practically relieved of the task to establish that the amount was paid by Public Witness 1. The High Court found that the explanation offered by the appellant was an afterthought and that there is no reliable evidence in support thereof.
(7) LEARNED counsel made an attempt to show that the appellant offered the said explanation even at the time when he was caught by the police. He failed to show any such conduct on the part of the appellant. On the contrary, the evidence shows that the appellant made an apology to the police for . having received the bribe amount. The appellant examined Ram Singh as DW 5. The High Court has rightly disbelieved his testimony. Anyone can come forward to help the accused to say that I sent that amount to (sic through) the complainant. We are of the view that the High Court has rightly repelled the defence regarding payment of Rs 500. The burden is on the public servant to show that the amount received by him was not illegal gratification and when he failed to discharge his burden the prosecution must be treated as having succeeded in proving that the appellant has committed the offence under Section 5(2) of the PC Act, 1947.
(8) THE only ground on which the minimum sentence can be reduced from imprisonment for a period of one year is "special reason". That the appellant had reached his superannuation is no "special reason" at all, for, any public of servant will reach superannuation. Such a stand adopted by the High Court would mean that any public servant on the eve of his retirement can commit this offence with impunity if his retirement is on the anvil. Yet another consequence would be that if any public servant succeeds in protracting the criminal proceedings to the stage of superannuation he can also claim the benefit of "special reasons", if the High Courts reasoning is to be accepted, We find the High Courts approach not only erroneous but pernicious, and therefore, impermissible in law. Such a ground cannot by any stretch of imagination be treated as "special reason". No other reason has been stated by the High Court and no other reason had been adverted to by the appellant in his plea. Therefore, we consider it imperative to alter the sentence to his detriment by enhancing it to imprisonment for a period of one year.
(9) THIS appeal is disposed of accordingly. The Third Additional Sessions Judge, Rewa (Madhya Pradesh) is directed to take necessary steps to put the appellant in jail for undergoing the sentence.