Case: A.B. Bhaskara Rao Vs. Inspector of Police, CBI Visakhapatnam

2) Brief facts:(a) The appellant-accused was working as a Head Clerk in the Traffic Cadre Section in the Office of the Senior Divisional Personnel Officer, South Central Railway, Vijayawada during the period from April, 1992 to November, 1997. The nature of duties of the appellant-accused included dealing with and processing of the matters like promotions, transfers, seniority list, roster list, pay fixation on promotions, retirements, resignations etc. of the personnelb) One K. Rama Rao-the Complainant, who was examined as PW-1, was posted as Yard Points Man, Grade `A under Station Superintendent, South Central Railway, Tanuku from December, 1995 to June, 1997. In June, 1997, due to excess staff at Tanuku, he was instructed to report at Head Quarters, Vijayawada and accordingly, when he reported there, he was asked to go back to Tanuku. Thereafter, he went back to Tanuku from where he was 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 Rs.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), Vijayawada. On 14.11.1997, a trap was laid by the CBI officials along with panchas and when the accused demanded and accepted a sum of Rs.200/- as illegal gratification, he was caught red handed along with the money which was recovered from the right hand side pocket of his pant(e) On 15.11.1997, at 7.30 a.m., an FIR was registered by the Inspector, CBI, Visakhapatnam Branch in Crime No. RC 20(A)/97-VSP. After recording the statements of the witnesses, Inspector of Police, CBI, Visakhapatnam filed charge sheet being No. 2/98-YTR dated 29.04.1998 against the appellant-accused for an offence punishable under Sections 7, 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as) in the Court of Special Judge for CBI Cases at Visakhapatnam(f) The Special Judge, CBI, by order dated 19.03.2001, convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- and, in default, to suffer simple imprisonment for one month for the offence punishable under Section 7 of the Act and one year rigorous imprisonment with a fine of Rs.500/- and, in default, to suffer simple imprisonment for one month for the offence punishable under Sections 13(1)(d)(ii) read with Section 13(2) of the Act(g) Against the said order, the appellant-accused filed Criminal Appeal No. 436 of 2001 before the High Court of Andhra Pradesh. The High Court, by impugned judgment dated 03.10.2007 dismissed the appeal filed by the appellant-accused and confirmed the conviction passed by the trial Court. Hence, the appellant-accused has preferred this appeal by way of special leave petition before this Court.

Reasoning:
It is clear that the Bench itself has clarified that they are not laying down the law that in spite of issuing notice confining to a particular aspect (in the case on hand -) the parties are entitled to urge all points and re-open the case as if they are free to do the same without any restriction. As a matter of fact, the last sentence in para 15 makes it clear that in the facts and circumstances of that case, they permitted the appellants to urge all points on merits5) 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 reject the request of the learned senior counsel appearing for the appellant.7) It is not in dispute that the provisions of the Prevention of Corruption Act, 1988 alone are applicable since the incident occurred on 14.11.1997 i.e. subsequent to the Act. Section 7 of the Act relates to public servant taking gratification other than legal remuneration in respect of an official act. If the said offence/charge is proved, the court has no other option but to impose sentence of imprisonment which shall be not less than six months but which may extend to five years and also liable to fine.We have gone through the facts in that case. It is true that even in the cited decision, the appellant accused demanded only Rs. 250/- and it was paid and accepted. Finally, the Special Judge framed charges for offence punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Act. The appellant therein was convicted for offence under Section 7(2) of the Act and appeal before the High Court was also dismissed. Thereafter, the same was challenged before this Court. This Court, after holding that the conclusion of the trial Court and High Court does not suffer from any infirmity considered the alternative submission which related to harshness of sentence. In that case, taking note of the fact that the occurrence took place nearly seven years back and also of the fact that the appellant had suffered custody for more than six months, considering all these aspects, while maintaining the conviction, this Court reduced the sentence to the period already undergone. Since the appellant therein was convicted only under Section 7 and Section 161 Cr.PC., the minimum sentence being six months and of the fact that he had suffered custody for more than six months, the course adopted by this Court is perfectly in order and the same cannot be applied to the case on hand, wherein the appellant had undergone only 52 days when the minimum sentence was six months under Section 7 and one year under Section 13.There is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the High Court. Inasmuch as the conviction on both counts have been confirmed by this Court and we are confined to sentence part alone and in view of the minimum sentence prescribed under Sections 7 and 13 of the Act, we are of the view that though long delay may be a ground for reduction of sentence in other cases, the same may not be applicable to the case on hand when the statute prescribes minimum sentence. Accordingly, we reject the said contention.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.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.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 in the Act as well as the period already undergone. In the absence of such details, we are unable to rely on those orders19) 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 aspectsb) 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 decisionc) 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 prosecutiond) 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 sentencee) 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 permissiblef) 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 Statuteg) 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 sympathyh) 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 casei) 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.