Delhi District Court
Cbi vs . A.R.Bhati on 27 February, 2016
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IN THE COURT OF SH. BRIJESH KUMAR GARG
SPECIAL JUDGE:CBI01: CENTRAL: TIS HAZARI, DELHI
CC No. : 09/2009
Case ID : 02401R0167462000
RC : 90(A)/1997
PS : CBI/ACB/New Delhi
U/s: Section 120 B,
409, 420, 511, 477A /201
IPC and Sec. 13(2)
r/w Sec. 13 (1) (d) of
The Prevention of Corruption
Act 1988.
CBI Vs. A.R.Bhati
ORDER ON THE POINT OF 'SENTENCE'
27.02.2016
1. Vide judgment dated 24.02.2016, the accused A.R. Bhati, J.E.,
has been convicted for the offences punishable under Section
120B read with Section 477A, 420/511 IPC and Section 13 (2)
read with Section 13 (1) (d) of The Prevention of Corruption Act,
1988. He was also convicted for the substantive offences
CBI Vs. K.C.Wahi (CC No. 09/2009) Page 1 of 14 Special Judge, CBI01, Central, Delhi
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punishable under Section 477A IPC, Section 511 read with
Section 420 IPC and the offence punishable under Section 13 (2)
read with Section 13 (1)(d) of The Prevention of Corruption Act,
1988.
2. Sh. Praneet Sharma, Ld. Sr. PP for the CBI, has prayed for
taking a strict view and for awarding an exemplary punishment to
the convict. He has argued that the convict has falsified the
record, i.e., the measurement book, which contained the details of
the work done under the tender awarded to coaccused Khalil
Ahmed (since deceased) and the measurement book was the
basic document, on the basis of which, the bill of the contractor
was verified and processed. He has further argued that the
corruption has taken its roots, deep in society and therefore, the
maximum punishment be awarded to the convict to give a
message to the society that the corruption is to be dealt with
heavy hands. Ld. Sr. PP for the CBI has relied upon the following
judgments, in support of his contentions :
CBI Vs. K.C.Wahi (CC No. 09/2009) Page 2 of 14 Special Judge, CBI01, Central, Delhi
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(i) State Through S.P., C.B.I., New Delhi Vs. Ratan Lal Arora,
reported as Appeal (crl.) No. 532 of 2004.
(ii) State of Madhya Pradesh & Ors. Vs. Shri Ram Singh,
reported AIR 2000 SC 870.
3. On the other hand, Sh. Y.K. Kahol, Advocate, the Ld. counsel
for the convict A.R. Bhati has prayed for taking a lenient view. He
has argued that the convict is about 55 years of age and is
suffering from various ailments and is having old aged parents to
look after. He has also argued that the wife of the convict is also
suffering from various ailments and is confined to bed and the
accused has to look after her as well. He has further argued that
the convict is facing trial for the last about 18 years and is having
no other criminal record.
4. The Ld. defence counsel has relied upon the following
judgments, in support of his above contentions :
(i) "State vs. Kaptan Singh", reported as, "2008 (1) JCC 397";
(ii) "Slok Kumar & Ors. vs. The State", reported as, "2009 (1)
CBI Vs. K.C.Wahi (CC No. 09/2009) Page 3 of 14 Special Judge, CBI01, Central, Delhi
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JCC 27";
(iii) "N.M. Parthasarthy vs. The State", reported as, "AIR 1992
Supreme Court 988".
5. I have given my considered thoughts to the arguments
addressed by the Ld. Sr. PP for the CBI and the Ld. defence
counsel. I have also perused the various judgments, cited by
them.
6. It has been held by the Hon'ble Supreme Court, in case titled
as, "State of M.P. and Others vs. Ram Singh and Others",
(Supra), as relied by the Ld. PP for the CBI, as under :
Corruption in a civilized society is a disease like
cancer, which, if not detected in time, is sure to
maliganise the polity of country leading to disastrous
consequences. It is termed as plague which is not only
contagious but if not controlled, spreads like a fire in a
jungle. Its' virus is compared with HIV leading to AIDS,
being incurable. It has also been termed as Royal
thievery. The sociopolitical system exposed to such a
dreaded communicable disease is likely to crumble under
its own weight. Corruption is opposed to democracy and
social order, being not only anti people, but aimed and
CBI Vs. K.C.Wahi (CC No. 09/2009) Page 4 of 14 Special Judge, CBI01, Central, Delhi
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targeted against them. It affects the economy and
destroys the cultural heritage. Unless nipped in the bud
at the earliest, it is likely to cause turbulence shaking of
the socioeconomicpolitical system in an otherwise
healthy, wealthy, effective and vibrating society.
(emphasis supplied by me)
7. In case titled as, 'State of M.P. vs. Shambhu Dayal Nagar',
(Supra), as relied by the Ld. PP for the CBI, the Hon'ble Supreme
Court has further held as under:
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. Largescale corruption retards the nationbuilding activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana, corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of CBI Vs. K.C.Wahi (CC No. 09/2009) Page 5 of 14 Special Judge, CBI01, Central, Delhi 6 the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."
(emphasis supplied by me)
8. It is also held by the Hon'ble Supreme Court, in case titled as, "Shyam Narain vs. State (NCT of Delhi)", reported as "(2013) 7 Supreme Court Cases 77", as under :
14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While CBI Vs. K.C.Wahi (CC No. 09/2009) Page 6 of 14 Special Judge, CBI01, Central, Delhi 7 carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
15. In this context, we may refer with profit to the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
16. In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus : (SCC p. 362, para 7) "7. ... Friedman in his Law in Changing Society stated:
'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would CBI Vs. K.C.Wahi (CC No. 09/2009) Page 7 of 14 Special Judge, CBI01, Central, Delhi 8 enter into the area of consideration."
17. In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 24142, paras 2324) "23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law.
The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
24. The object of punishment has been succinctly stated in Halsbury's Laws of England (4th Edn, Vol. 11, Para
482), thus:
'482. Object of punishment. The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 8 of 14 Special Judge, CBI01, Central, Delhi 9 law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided." (emphasis in original)
18. In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a twoJudge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion.
Neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
(emphasis supplied by me)
9. It is also held by the Hon'ble Supreme Court in case titled as, "A.B. Bhaskar Rao vs. Inspector of Police, CBI Vishakhapatnam", reported as, "(2011) 10 Supreme Court CBI Vs. K.C.Wahi (CC No. 09/2009) Page 9 of 14 Special Judge, CBI01, Central, Delhi 10 Cases 259", as under :
30. From the analysis of the above decisions and the provisions concerned with which we are concerned, the following principles emerge:
(a) When the Court issues notice confining to particular aspect / sentence, arguments will be heard only to that extent unless some extraordinary circumstance / material is shown to the Court for arguing the matter on all aspects.
(b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the Court to consider the delay and its effect and the ultimate decision.
(c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately, it depends upon the conduct of the delinquent and proof regarding demand and acceptance established by the prosecution.
(d) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the statute prescribes minimum sentence.
(e) Though Article 142 of the Constitution gives winder power to this Court, waiver of certain period as prescribed in the statute imposing lesser sentence than the minimum prescribed is not permissible.
(f) An order, which this Court can make in order to do complete justice between the parties, must not only be CBI Vs. K.C.Wahi (CC No. 09/2009) Page 10 of 14 Special Judge, CBI01, Central, Delhi 11 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 the relevant statute. In other words, this Court cannot altogether ignore the substantive of a statute.
(g) In exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy.
(h) The powder 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 supplanting the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case.
(i) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided or in a statute dealing expressly with the subject.
(emphasis supplied by me ) CBI Vs. K.C.Wahi (CC No. 09/2009) Page 11 of 14 Special Judge, CBI01, Central, Delhi 12
10. In the present case, the allegations proved against the convict are serious in nature. The convict had made wrong entries in the measurement book No. 5900, Ex.PW.3/F, which were also verified and approved by his coaccused K.C. Wahi (since deceased). His coaccused Khalil Ahmed (since deceased) has also admitted these entries as correct, despite of the fact that the entire tender work was not done by him. Convict A.R. Bhati has falsified the measurement book, willingly and intentionally attempted to cheat his employer, i.e., the CPWD and to favour his coaccused Khalil Ahmed (since deceased).
11. Keeping in view, the entire circumstances of the present case and the law laid down by the Hon'ble Supreme Court, as discussed above, I am of the considered opinion that the convict does not deserve any leniency from this court. Therefore, the convict A. R. Bhati is hereby sentenced to undergo Rigorous Imprisonment for a term of two years & to pay a fine of Rs. 10,000/, for the offence punishable u/s 120B IPC read with CBI Vs. K.C.Wahi (CC No. 09/2009) Page 12 of 14 Special Judge, CBI01, Central, Delhi 13 Sections 477A/420/511 IPC & 13(2) read with Section 13(1) (d) of The Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of R.I. for a period of two months.
12. Convict A.R. Bhati is further sentenced to undergo Rigorous Imprisonment for a term of four years and to pay a fine of Rs. 10,000/, for the offence punishable under Section 477A of the IPC. In default of payment of fine, the convict shall further undergo Rigorous Imprisonment for two months.
13. Convict A.R. Bhati is further sentenced to undergo a term of rigorous imprisonment for three years and to pay a fine of Rs. 5,000/ for the offence punishable under Section 511 read with Section 420 IPC. In default of payment of fine, the convict shall further undergo a term of rigorous imprisonment for one month.
14. Convict A.R. Bhati is further sentenced to undergo Rigorous CBI Vs. K.C.Wahi (CC No. 09/2009) Page 13 of 14 Special Judge, CBI01, Central, Delhi 14 Imprisonment for a term of three years and to pay a fine of Rs. 10,000/, for the offence punishable under Section 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988. In default of payment of fine, the convict shall further undergo Rigorous Imprisonment for two months.
15. All the sentences shall run concurrently. The custody warrant of the convict be prepared accordingly and the convict be sent to Central Jail, Tihar, New Delhi, to undergo the sentence, awarded to him.
It is ordered accordingly.
Announced in open Court on 27 day of February, 2016 th BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. K.C.Wahi (CC No. 09/2009) Page 14 of 14 Special Judge, CBI01, Central, Delhi