The Courts trying criminal offence are of Magistrate and Sessions Court respectively. For smaller offence the Magistrate conducts the trial. For major crimes, the trial is conducted by Sessions Court. However ordinarily the matter is first presented to the court of Magistrate who, if he finds it proper may commit is for trial before the Sessions Court.
Committal by Magistrate
Sessions court appointed as Special Court can take cognizance of the offence under the Act without order of committal. Even though the Special Judge is a Court of Session as stated in clause 8(3) of the Criminal Law Amendment Act, he can take cognisance otherwise than on committal by virtue of clause 8(1) of the said Act.
Sec. 193(1) Criminal Procedure Code provides that except as otherwise expressly provided by this Code or by any other Law for the time being in force no Court of Session shall take cognisance of any offence as a court of original jurisdiction unless the accused has been committed to it by magistrate duly empowered in that behalf. Thus clause 8(1) of the Criminal Law Amendment Act is "the other law" contemplated asS. 193(1) Crl. P. C. and it operates as an exception to the general rule that Court of Session should normally try cases only on commitment.
P.S. Sadagopachari vs. State by Collector of Central Excise (customs) Mad, AIR 1966 Mad 432: (1966) 1 Mad L J 298 1966 Mad L J (Cri) 272 1966 Cri L J 1452.
Issue of Process
Once a complaint is received by the Magistrate, it has to apply it's mind and if a prima facie case of commission of offence is made out. Once Magistrate is satisfied, he has to issue the process to call for appearance of accused.
The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the Enquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry.
Mohinder Singh vs. Gulwant Singh, 1992 CrLJ 3161: AIR 1992 SC 1894: 1992 SCC (Cr) 361.
Charge-sheet and discharge
Charge-sheet by police is the first step in commencement of trial. Until the charge sheet is filed there is no trial.
Unfortunately there is no period prescribed for filing of charge sheet per se. Police is entitled to take its own time. It may take months or it may take years. Only consequence of delay is release of arrested person on bail after the expiry of period of 60 or 90 days from arrest, as the case may be, u/s 167 of Cr.P.C.
The Court has power to discharge the accused if no offence is made out but the court while considering the case of discharge sought immediately after the charge-sheet is filed, it cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses. It is not legally permissible.
State v. J. Doraiswamy, decided by SC on 7 March 2019.
At the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
State By Karnataka Lokayukta vs M. R. Hiremath decided by SC on 1 May, 2019.
At this stage, probative value of the material has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
State of Tamil Nadu v. N Suresh Rajan, 10 (2014) 11 SCC 709.
Discharge of accused
Section 245 occurs in Chapter XIX-B, which prescribes the procedure for trial of warrant cases. A perusal of sub-section (3) would show that it recognises and incorporates the principle of speedy trial implicit in Article 21 of the Constitution. The section applies only to private complaints. According to sub-section (3), if all the evidence referred to in Section 244, is not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies him on the basis of the evidence already recorded and for other special reasons that it will not be in the interest of justice to discharge the accused.
If the Magistrate is satisfied that it will not be in the interest of justice to do so, he will not discharge the accused. But the said satisfaction has to be formed on the basis of evidence already recorded and for special reasons which, of course, he may have to record in his order.
Santosh De vs. Archna Guha, 1995 CrLJ 2640: 1994 SCC (Cr) 546: 1994(1) Crimes 548: 1994(2) CCR 326.
The standard of test and judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused — Considerations before the court at the stage of framing of charge.
If the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228. then in such a situation ordinarily and generally, the order which will have to be made will be one under S. 228 (charge to be framed) and not under S. 227 (of discharge)
State of Bihar vs. Ramesh Singh, (1978) 1 SCR 257: AIR 1977 SC 2018: 1977 CrLR(SC) 375: 1977 UJ 788: 1977 CrLJ 1606: 1977(4)SCC 39; See also Nirmaljit Singh Hoon vs. State of West Bengal, (1973) 2 SCR 66: AIR 1972 SC 2639 and also Chandra Dec, Singh v. Prokash Chandra Bose, (1964) 1 SCR 639: AIR 1963 SC 1430.
At the stage of framing the charges, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.
State of M.P. v. Mohan Lal Soni decided by SC on 19 July 2000.
The High Court erred in coming to the conclusion that in the absence of a certificate under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. This was consistent with the decision in Lalita Kumari.
State By Karnataka Lokayukta vs M. R. Hiremath decided by SC on 1 May, 2019.
An order of discharge of accused can not be set aside by High Court in exercise of inherent power without notice to the accused person.
Every Court has inherent power to act ex debito justitiae - to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. The principle embodied in Section is based upon the maxim: Quando lex alquid alicuiconcedit concedere videtur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavoidable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedural law, the Section has been embodied to cover such Lacunae, wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, extraordinary cases.
Dinesh Dutt Joshi vs. State of Rajasthan, 2001 Supp (3) SCR 465: 2001(8) SCC 570: 2001 CrLJ 4697: 2002 SCC(Cr) 24.
Bail
A bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that the accused is presumed to be innocent till he is found guilty by the competent court.
Virupakshappa Gouda vs State of Karnataka decided by SC on 28 March, 2017.
While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
Central Bureau of Investigation vs. V. Vijay Sai Reddy, (2013) 7 SCC 452.
The matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.
State of U.P. through CBI v. Amarmani Tripathi, 2005 (8) SCC 21.
It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
Nimmagadda Prasad vs. Central Bureau of Investigation, decided by SC on 9 May, 2013.
The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.
State of Gujarat vs. Mohanlal Jitamalji Porwal, 1987 (2) SCR 677: (1987) 2 SCC 364: AIR 1987 SC 1321: 1987 CriLJ 1061.
Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
Nimmagadda Prasad vs. Central Bureau of Investigation, decided by SC on 9 May, 2013.
There is no straight jacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case. The Government's interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of the Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person's liberty is abridged. Although 'bail is the rule and jail is an exception' is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail.
State of Bihar vs Amit Kumar @ Bachcha Rai decided by SC on 20 April, 2017.
While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
Prasad Shrikant Purohit vs State of Maharashtra, decided by SC on 15 April, 2015.
When the bail applications had been rejected twice and the Supreme Court too declined to enlarge the accused on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety of trial court to grant bail and that impropriety call for axing of the order.
Virupakshappa Gouda vs State of Karnataka decided by SC on 28 March, 2017.
Age of 70 years has been considered to be a ground for granting the bail to the accused too, after he had undergone prison term for 6 months.
Rajendra Prakash Agrawal vs Union Of India decided by SC on 26 October, 2015.
Double Jeopardy
Autrefois acquit
Double jeopardy — Acquittal of convict under the provisions of the PC Act does not bar his trial under the provisions of Customs Act, 1962 or Gold (Control) Act, 1968 as ingredients and foundation of trial under those statutes are different.
A.A. Mulla vs. State of Maharashtra, AIR 1997SC 1441: 1996 (11) SCC 606: 1996(9) JT 551: 1996(7) Scale 840: 1997 CrLJ 353.
Evidence Collection
Finger Prints
Persons competent to take finger prints — Admission by the accused by his conduct that the finger prints were taken — No challenge to their testimony by cross examination — Finger prints can be relied in evidence.
The two police officers who took the finger prints were Head Constables. These witnesses were never cross-examined. The taking of finger prints is an act which is of ministerial in nature. The question is of identity of the accused persons. It appears from the judgment of the trial Court that the accused persons admitted their finger prints. Had there been any cross-examination, it would have come out as to how they were authorised to take the finger prints. Since the taking of finger prints by the two P.Ws. was never questioned before the trial Court, the reliance by the High Court on Section 2(b) of the Identification of Prisoners Act, 1920 is erroneous.
State ofT.N. vs. T. Thulasingam, AIR 1995 SC 1314: 1994 Supp (2) SCC 405: 1995 Cr LJ 2080: 1994 (3) CCR 566 (SC): 1994 SCC (Cri) 1504.
Fair Trial
Political influence
Requirements of fair trial — Prosecution of Chief Minister — Public Prosecutor not performing his duty properly — Effect thereof on trial.
76 witnesses were recalled. Many of them had earlier been cross-examined. On a question from Court we were informed that the witnesses were recalled as Senior counsel for the second Respondent had been busy attending to some other case filed against her when they were first examined. This could hardly have been a ground for recall of witnesses. The fact that the public prosecutor now appointed did not object to such an application itself suggests that free and fair trial is not going on. It appears that process of justice is being subverted. This gets reinforced by the fact that even when witness after witness has resiled from what they had stated in the evidence in chief, yet no steps have been taken by the public prosecutor to resort to Section 154 of the Indian Evidence Act.
The fact that it is done after the second respondent assumed the power as the Chief Minister of the State and the public prosecutor appointed by her government did not oppose and/or give consent to application for recall of witnesses is indicative of how judicial process is being subverted. The public prosecutor not resorting to Section 154 of the Indian Evidence Act nor making any application to take action in perjury taken against the witnesses also indicate that trial is not proceeding fairly. It was the duty of the public prosecutor to have first strenuously opposed any application for recall and in any event to have conformed witnesses with their statements records under Section 161 of Cr.P.C. and their examination-in-chief. No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new public prosecutor is hand in glove with the accused thereby creating a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is strong indication that the process of justice is being subverted.
Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above referred cases are rendered in cases where the public prosecutor seeks permission to question his own witnesses by resorting to Section 154 of the Evidence Act and the Court allowed the public prosecutor to cross-examine his own witnesses. In such cases the trial judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it.
In the present case, the public prosecutor has not sought permission from the court by resorting to Section 154 of the Evidence Act even thought the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt in made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The Trial Judge may find it difficult not to accept the subsequent testimony of the witness, which have remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice.
For the convenience of the parties the State of Karnataka would be most convenient due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed. C.C. No. 7 of 1997 and CC No. 2 of 2001, pending on the file of the XI Addl. Sessions Judge (Special Court No.1 ) Chennai, in the State of Tamil Nadu shall stand transferred with the following directions:-
(a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall constitute a special court under the Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XI Addl. Sessions Judge (Special Court No. 1) Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the State of Karnataka shall appoint Special Judge within a month from the date of receipt of this Order and the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief Justice of High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as public prosecutor to conduct these cases. The public prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.
(d) The investigating agency is directed to render all assistance to the public prosecutor and his assistant.
(e) The Special Judge so appointed to proceed with the cases from such stage as he deems fit and proper and in accordance with law.
(f) The Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused and who have resiled from their previous statement, may be again recalled. The public prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross-examine them. Any such application if made to the Special court shall be allowed. The public prosecutor will also be at liberty to apply that action in perjury to be taken against some or all such witnesses. Any such application/swill be undoubtedly considered on its merit/s.
(g) The State of Tamil Nadu shall ensure that all documents and records are forthwith transferred to the Special Court on its constitution. The State of Tamil Nadu shall also ensure that the witnesses are produced before the Special Court whenever they are required to attend that Court.
(h) In case any witness asks for protection the State of Karnataka shall provide protection to that witness.
(i) The Special Judge shall after completion of evidence put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Section 313. All the accused shall personally appear in Court, on the day they are called upon to do so, for answering questions under Section 313, Criminal Procedure Code.
K. Anbazhagan vs. Superintendent of Police, 2003(9) JT 31: 2003(9) Scale 680: 2003(7) SLT 300: 2003(4) CCR 440(SC): 2003(4) KHCACJ 720.
Joint Trial
While Section 239 of the Code of Criminal Procedure allows a joint trial of person and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard to the circumstances of each case. It would certainly be an irregular exercise of discretion if a Court allows an innumerable number of offences spread over a long period of time and committed by a large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly prolong the trial and would be a cause of unnecessary waste of judicial time.
Natwar Lal Sakar Lal Mody v. State of Bombay, 26 (1984) DLT 64.
It is not obligatory on the Court to hold a joint trial and provisions of these sections are only enabling provisions. An accused cannot insist with ulterior purpose or otherwise that he be tried as co-accused with other accused, that too in a different case. It is only a discretionary power and Court may allow it in a particular case if the interest of justice so demands to prevent miscarriage of justice.
Essar Teleholdings Ltd vs CBI decided by SC on 29 September, 2015 (2010 CriLJ 224).
Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which the Legislature has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.
State of AP v. Cheemalapti Ganeswara Rao, (1964) 3 SCR 297.
A large Number of cases were pending before various special court both in State of Bihar and Jharkhand under the Act. Allegations of conspiracy to defraud the Government exchequer of large sum of money. All the cases not yet reached at the stage of framing of charge.
It was held that the High Court was justified in concluding that the question of single conspiracy to be decided when other cases also reach the stage of framing of charges. As most of other accused had not prayed for joint trial held further that it was neither expedient nor proper that this accused be permitted to bypass the trial court in this manner.
Lalu Prasad vs. State, 2003 CrLJ 4452: 2003 Supp (1) JT 32: 2003(4) Crimes 210(SC): 2003(4) CCR 70(SC): 2003(3) JCC 1528: 2003(4) Recent CR 160.
Similarly Court had noted the grievance that accused persons would be forced to hear the same evidence 5-6 times, but ordered that they may apply to the Special Judges that evidence recorded in one case and the document marked as an exhibit in one case be used as evidence in other cases also.
Lalu Prasad Yadav v. State through CBI (A.H.D.), Ranchi, Jharkhand (2003) 11 SCC 786.
A Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy.
Natwar Lal Sakar Lal Mody v. State of Bombay, 26 (1984) DLT 64.
There was a single conspiracy that started in the year 1988 and continued till 1996. There was a core group of 20 common accused in all the prosecutions i.e. nine politicians and eleven senior administrative officers who allegedly hatched the main conspiracy to siphon off the funds from treasuries earmarked for Animal Husbandry Department of erstwhile State of Bihar. The modus operandi employed by the conspirators was identical for all the treasuries and funds were siphoned off as and when an opportunity occurred. It was contended that since there is no evidence that separate conspiracies were hatched to defalcate the funds from different treasuries at different points of time second prosecution was not permissible. The contentions were rejected with detailed reasoning in these words:
"…. No doubt about it that the general conspiracy had been hatched as alleged for the period 1988 to 1996 but defalcations are from different treasuries for different financial years by exceeding the amount of each year which was allocated for Animal Husbandry Department for each of the district for the purpose of animal husbandry. The amount involved is different, fake vouchers, fake allotment letters, fake supply orders had been prepared with the help of different sets of accused persons. Though there is one general conspiracy, offences are distinct for different periods….When the accused is charged with criminal breach of trust or dishonest appropriation of money or other immovable property, it shall be sufficient to specify the gross sum or describe the moveable property in respect of which offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items of exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 provided that the time included between the first and last of such dates shall not exceed one year…..It is apparent from section 212 read with section 219 that there have to be separate trials for different years covering the period of more than one year. Same kind of offence is a different thing than the "same offence" for the purpose of sections 219, 220 or 300. The scheme of law is clear that separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than one year.
Shivala Bhikhamsar vs Bablir Kumar Jatti decided by SC on 8 May, 2017.
Framing of charge
Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions of Code.
State through CBI vs Anup Kumr Srivastava decided by SC on 4 August, 2017.
At the stage of framing of charge, the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion. founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge.
Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar, (1979) 4 SCC 274: AIR 1980 SC 52: 1979 CrLJ 1390: 1979 SCC (Cr) 1038.
Procedure for framing of charge — When the Court is called upon to consider whether a charge should be framed or not the question to which the Court has to address itself is whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the conviction of the accused and the Court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusion whether on the basis of suck evidence the Court would convict the accused. Where the offence charged against the accused is under S. 161 or S. 165 or Section 7, 11 & 13 of Act of 1988 the Court must necessarily apply the presumption under Section 20 while considering whether on the basis of the unrebutted evidence which is before it the Court would convict the accused.
R.S. Nayak vs. A.R. Antulay, AIR 1986 SC 2045: 1986(2)SCC 716: 1986(2)SCR 621: 1986 CrLJ 1922: 1986 CrLR(SC) 266: 1986 SCC(Cr) 256.
Right of accused at the stage of framing of charge — At the time of framing of a charge Trial Court is required to and can consider only the police report and the documents sent with it. At this stage the accused has the right of being heard but nothing beyond that. Examination of accused at this stage is a prerogative of the Court and not a right vested in accused.
State Anti-Corruption Bureau, Hyderabad vs. P. Suryaprakasam, 1999 SCC(Cr) 373; See also Meenakshi Bala v. Sudhir Kumar, 1994 (4) SCC 142; Nar Bahadur Bhandari vs. State of Sikkim, 1996 (4) Crimes 86 Sikkim.
Exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is not justified.
State of Madhya Pradesh vs. S.B.Johari, AIR 2000 SC 665: 2000(2) SCC 57: 2000(1) Scale 138: 2000(1) JT 169: 2000 SCC(Cr) 311: 2000 CrLJ 944.
While framing charges under Section 227 of the Code of Criminal Procedure should apply the prima facie standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Sajjan Kumar v. CBI, (2010) 9 SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; State by the Inspector of Police, Chennai vs. S. Selvi and Ors., (2018) 1 SCALE 5.
Therefore when the alleged notifications dated 15-5-1996 and 1-8-1996 were issued without the approval of Cabinet and by violation of rules to benefit certain private persons, the framing of charges against the public servants involved can not be faulted with.
Mauvin Godinho vs The State Of Goa decided by SC on 17 January, 2018
The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his power to consider even materials which the accused may produce at the stage contemplated in section 227 of the Code
Satish Mehra vs. Delhi Administration, 1996 Supp (4) SCR 197: 1996(9) SCC 766: 1996(7) JT 6: 1996(5) Scale 523: 1996 SCC(Cr) 1104.
If the evidence before the Court is of such type which if un-rebutted and un-challenged by way of cross-examination would not be sufficient enough to convict the accused ultimately then the Court would not be justified in framing the charge against the accused. The Court at that stage is under no obligation to make an elaborate enquiry by sifting and weighing the material to find out a case against the accused beyond a reasonable doubt which it is required to do at the time of the final hearing. The Judge at that preliminary stage is simply required to find out that there was material which may lead to the inference that the accused has committed an offence. Thus the charge can be framed by the Court against an accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the Court would be justified in framing the charges against an accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a full-fledged tree of conviction later on.
L.K. Advani vs. Central Bureau of Investigation, 1997 (4) Crimes 1 Del.
At the stage of framing charge the Court should not enter upon a process of evaluating the evidence by deciding its worth or credibility — The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further.
No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account or explain such excess.
It does not mean that the Court could not frame charge until the public servant fails to explain the excess or surplus pointed out to be the wealth or assets of the public servant concerned. This exercise can be completed only in the trial.
State by Central Bureau of Investigation vs. S. Bangarappa, AIR 2001 SC 222: 2000 Supp (4) SCR 726: 2001(1) SCC 369: 2000 Supp (3) JT 29: 2001 CrLJ 111: 2001 SCC(Cr) 152: 2000(4) CCR 271(2)(SC).
Parallel Disciplinary Proceedings
Simultaneous Disciplinary Proceedings — Permissibility — Stay of Disciplinary Proceedings during the pendency of criminal proceedings — Considerations for.
The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability', or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case.
One of the contending consideration is that the disciplinary enquiry cannot be (and should not be) delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly even reach a prompt conclusion. That is the reality inspite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course.
The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.
State of Rajasthan vs. B.K.Meena, AIR 1997 SC 13: 1996(6) SCC 417: 1996(8) JT 684: 1996(7) Scale 363: 1996(7) Supreme 432: 1996(5) SLR 713: 1996(7) AD(SC) 321: 1996(2) UJ 739: 1997(90) FJR 280: 1996 LIC 2750: 1997(1) LLJ 746: 1996(2) LLN 1269: 1997(1) SLJ 86
Speedy Trial
The trial under the PC Act has to be conducted on a day to day basis, as mandated by section 4(4) thereof.
An endeavour shall be made to ensure that the said trial is concluded within a period of two years: Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so:
Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.
It is unfortunate that this noble provision in section 4 of the PC Act is not being followed to the hilt.
Large backlog of cases in the courts is often an incentive to the litigants to misuse the courts' system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system's procedure guarantees and elaborateness sometimes give, create openings for abusive, dilatory tactics and confer unfair advantage on better heeled litigants to cause delay to their advantage. Longer the trial, witnesses will be unavailable, memories will fade and evidence will be stale.
Public Interest Litigation v. Union of India, (2012) 3 SCC 117; Shahid Balwa v. Union of India, (2014) 2 SCC 687.
Judgement
The requirements of 'judgement' as indicated inS. 354 Cr. P.C., had been subject matter of judicial comment in numerous decisions. The section itself is clearly indicative of the basic requirement: the formulation of points for determination, the discussion of evidence and the reasoning in support of the ultimate conclusion.
High Court cannot be oblivious of the situation confronting the subordinate courts in the matter of disposal of cases before them. They have necessarily to work at a hectic pace. An oppressive pressure of work nags them quite often. Such a court cannot therefore be justifiably blamed for the only reason that the judgement is not as elaborate as the accused would like to have it. The court below has recorded that no arguments were advanced on the merits of the contentions. High Court would certainly accept the statement as reflecting the correct position. Ordinarily it should be assumed that counsel who had conducted the case on behalf of the accused in the court below was a aware that the evidence in the case was so clear and convincing as to sustain conviction. This is the normal and fair interpretation of the conduct of counsel in the court below. It would have been then a quixotic adventure for the court to trumps up imaginary attacks on the prosecution case and to slash them down with the materials available in the case. It is also useful in that connection to bear in mindS.375.Cr.P.C. where under the remedy by way of appeal is unavailable too an accused person who had pleaded guilty and had been convicted on such plea. The principal underlying that section would justify the course adopted by the court below in rendering a judgment without elaborate details.
A. Muraleedharan vs. State of Kerala, 1986 CrLJ 904 Ker.
Alteration of judgement by Court is not permissible. Under section 362 of Criminal Procedure Code, 1973 the Court cannot alter judgment after the same has been signed except to correct clerical or arithmetical errors. The High Court has no jurisdiction even under section 482 of Criminal Procedure Code, 1973, to alter its earlier judgment.
Moti Lal vs. State of Madhya Pradesh, 1994 CrLJ 1633: AIR 1994 SC 1544: 1994 (3) Rec CrR 77: 1994 Jab LJ 501; See also State of Orissa vs. Ram Chander Agarwala etc., 1979 CrLJ 33: AIR 1979 SC 87.
Issue Estoppel
A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier. He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier. If there is any likelihood of facts or conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact.
Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905.
Sentence
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 andre-claim 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.
B.G. Goswami v. Delhi Administration, AIR 1973 SC 1457: 1974 SCR (1) 222: (1974) 3 SCC 85.
In this case, 7 years of trial were treated as sufficient agony and harassment loss of job and also the need to earn a living for himself and for his family members and for those dependent on him. Therefore the the sentence of imprisonment was reduced to that already undergone but sentence of fine was increased from Rs. 200/- toRs. 400/-.
It may be noted that under s. 5(1)(d) read with s.5(2) of the Prevention of Corruption Act 1947 the prescribed minimum sentence was rigorous imprisonment for one year and there had to be imposition of fine. The sentence of imprisonment could be for a lesser period but in that event the Court had to assign special reasons which must be recorded in writing. The aforesaid 7 years of delay in trial and loss of job were the special reason given by court. One has to wonder as in which case these reasons would not exist? Delay in trial is a consistent feature of judicial system and every corrupt public servant will lose job. If that is the case how it became special reason to reduce the sentence?
In yet another case these are the special reasons given by the court:
"….It, however, appears that the entire money which was said to have been embezzled by the appellant was recovered by the government by deducting the entire amount from the salary of the appellant. It also appears from the statement of the accused under Section 342 that in view of his domestic circumstances he was mentally disturbed. Having regard to these special circumstances and further having regard to the facts that the sum embezzled is only Rs. 138/- we feel that it would not be proper to send the appellant back to jail. The appellant has already undergone about a week's imprisonment. For these reasons, therefore, we reduce the sentence to the period already served and reduce the fine from Rs. 1,000/- toRs. 500/- in default one month's rigorous imprisonment. Out of the fine, if deposited already, Rs. 500/- may be refunded to the appellant. With this modification the appeal is dismissed…."
Dologovinda Mohanty v. State of Orissa (1979) 4 SCC 557.
In case after case the Supreme Court proved to be too generous in reducing the sentence. This is another example:
"..the offence took place in the year 1981. All these years the appellant has undergone the agony of criminal proceedings until now and he has also lost his job and has a large family to support. It is also stated that he has become sick and infirm. He has been in jail for some time. For all these special reasons, while confirming the conviction of the appellant, we reduce the sentence of imprisonment to the period already undergone..."
M.W. Mohiuddin v. State of Maharashtra (1995) 3 SCC 567.
In yet another case sentence of 2 monthswas imposed on similar reasoning:
"...two decades have passed since the commission of the offence and as during the interregnum the appellants had undoubtedly suffered in body and mind, according to us, it is a fit case where the proviso to Sub-section (2) of Section 5 of the Act should be invoked which states that for special reasons recorded in writing, the court may refrain from imposing a sentence of imprisonment or impose a sentence of imprisonment of less than one year. Though the proviso permits not to impose a sentence of imprisonment at all and confine the sentence to fine only, we do not think if present is a case where the punishment to be awarded should be only fine, as any softness in this regard could produce an undesirable result, namely, encouragement to adoption of corrupt means by public servants which has indeed to be checked, and not allow to be encouraged. Keeping in view all the attending circumstances, we are of the view that a sentence of RI for two months would be adequate sentence, apart from the fine of Rs. 15,000. On failure to pay the fine, each of the appellants would suffer imprisonment for two months..."
Din Buch etc. etc. v. State of Jammu and Kashmir (1996) 9 SCC 239.
Similar observations are made in this case:
"...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 under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. Both the sentences to run concurrently..."
State of Maharashtra v. Rashid Babubhai Mulani (2006) 1 SCC 407.
There are a large number of cases in which sentence has been reduced on these very 'special' reasons which are general in nature and present in all cases of conviction for corruption. No wonder that there is little deterrence in the society and the menace of corruption is rising everyday. All because of misplaced compassion by the courts.
Bechaarbhai S. Prajapati v. State of Gujarat (2008) 11 SCC 163; V.K. Verma v. CBI (2014) 3 SCC 485;Gulmahmad Abdulla Dall v. State of Gujarat 2014 (4) Crimes 455 (SC); Nanhaku Ram vs State Of Jharkhand decided by SC on 28 August, 2015: Kiran Chander Asri vs State of Haryana decided by SC on 17 September, 2015; Ambi Ram vs State of Uttarakhand decided by SC on 5 February, 2019.
It appears that due to above misplaced compassion, the legislature stepped in and took away the discretion of the Court by a legislative amendment. The Courts however continue to reduce sentence in cases conviction under unamended law.
When the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence.
Mohd. Hashim v. State of Uttar Pradesh, 8 (2017) 2 SCC 198.
The constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision but at the same time, these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in any statute dealing expressly with the subject.
Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani(1997) 8 SCC 713 followed in Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 followed in State Of Madhya Pradesh vs Vikram Das (2019) 4 SCC 125.
In one case the trial court imposed sentence of imprisonment of two years upon each of the accused. The occurrence was of the year 1991 that is about 27 years prior to decision. Considering the passage of time, Supreme Court deemed it appropriate to reduce the sentence of imprisonment of two years to the statutory minimum imprisonment of one year.
State Of Gujarat vs Navinbhai Chandrakant Joshi decided by SC on 17 July, 2018.
In yet another case, where main perpetrator of crime, the public servant' was acquitted of the charges, thesentence of convict who had received the benefit of corruption was reduced from 2 years to already undergone which was 7 month and 15 days.
K.P. Singh vs State (N.C.T) Of Delhi decided by SC on 28 September, 2015.
Justice Thakur in the aforesaid case expressed the difficulty faced by Courts in awarding sentence in these words:
"Determining the adequacy of sentence to be awarded in a given case is not an easy task, just as evolving a uniform sentencing policy is a tough call. That is because the quantum of sentence that may be awarded depends upon a variety of factors including mitigating circumstances peculiar to a given case. The Courts generally enjoy considerable amount of discretion in the matter of determining the quantum of sentence. In doing so, the courts are influenced in varying degrees by the reformative, deterrent and punitive aspects of punishment, delay in the conclusion of the trial and legal proceedings, the age of the accused, his physical/health condition, the nature of the offence, the weapon used and in the cases of illegal gratification the amount of bribe, loss of job and family obligations of accused are also some of the considerations that weigh heavily with the Courts while determining the sentence to be awarded. The Courts have not attempted to exhaustively enumerate the considerations that go into determination of the quantum of sentence nor have the Courts attempted to lay down the weight that each one of these considerations carry. That is because any such exercise is neither easy nor advisable given the myriad situations in which the question may fall for determination. Broadly speaking, the courts have recognised the factors mentioned earlier as being relevant to the question of determining the sentence. Decisions of this Court on the subject are a legion..."
It may be noted that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 has been enhanced by Act No. 1 of 2014 with effect from 16.1.2014 and has been again amended and enhanced by the Amending Act of 2018.
Concurrent running of sentence
The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.
Mohd. Akhtar Hussain v. Collector of Customs (1988) 4 SCC 183.
Any unprincipled exercise of judicial discretion and casual direction made regarding concurrency would go against the express provisions of the Prevention of Corruption Act, 1988 and the Criminal Procedure Code. Accordingly it was held that conviction in two different cases, one of abusing the official position in getting the plots allotted to herself and her daughters and other irregularities in making changes in the site plan and another case of abusing her position as CEO, Noida conspired with another person in allotting plot to him, are two different matters for which sentences have to be suffered consecutively.
Neera Yadav vs Central Bureau of Investigation, decided by SC on 2 August, 2017.
Old Age
Can old age be a ground to be lenient on accused? Apparently it is a ground, as indicated in many judgements of Supreme Court. For example:
"...While considering the question of sentence, the trial court in the year 2002 observed that the Appellant was 60 years old and was suffering from ill-health. We are informed that the Appellant has undergone 20 months out of the sentence of 36 months, that he is 75 years old now and is suffering from several ailments. Considering the aforementioned, we are of the view that the sentence imposed on the Appellant by the trial court and affirmed by the High Court be modified to the period already undergone by the Appellant…."
Naresh Choubey vs Central Bureau of Investigation decided by SC on 16 November, 2017; K.L Bakolia vs State through Director,C.B.I decided by SC on 15 May, 2015.
This too is a case of special discretion of court which existed prior to 2014. Now a convict has to undergo minimum sentence.
Refund of money
Does a thief who returns the stolen money, gets clemency of special treatment?
Apparently in India, it does. A corrupt officer who misappropriates a plot of land, on returning the plot along with the building constructed thereon was held entitled to reduction in sentence of imprisonment from three years to two years.
Neera Yadav vs Central Bureau of Investigation, decided by SC on 2 August, 2017.
Similarly the sentence of co-conspirator/beneficiary of the corruption in above case was also reduced to two years.
Rajiv Kumar vs State of Uttar Pradesh decided by SC on 2 August, 2017.
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