1. This is an appln. for leave to appeal to the S.C. against our order in Cr. Revn. No. 458 of 1946 enhancing the sentence. It has been, however, made clear by the two counsel, who appeared before us & were permitted to argue one after the other, that they did not challenge the conviction. It has also to be noted that in the learned lower appellate Ct. too the applt. did not challenge the conviction but pleaded for reduction of sentence. The learned Ses. J. was successfully persuaded to commute the sentence of imprisonment of 6 months (which has since been restored by us) to a fine of Rs. 200.
2. Mr. Patnaik, the leading counsel in the case would argue that our judgment violates the principles laid down in Article 14 of the Constitution, inasmuch as, we have said, in our judgment that the accused being a Marwari merohant, a fins of Rs. 200 would amount to absolutely no punishment whatsoever, & that he has to be sentenced with imprisonment; & that accordingly the sentence of imprisonment originally awarded by the trial Ct. should be restored. It is urged that it is a departure from the rule of natural justice.
3. The implications of the impugned observation in our judgment are that he being a monied man of substance, a fine of Rs. 200 will not prove appropriately deterrent so as to prevent him & others from repeating the offence. There was no discrimination on the ground that he was a Marwari or that he was a merchant. Besides, in the course of hearing, we observed that if the sentence of fine be imposed, it was likely that the man on whose behalf he was attempting to bribe the public servant would bear it & the real delinquent would go scot-free. We are, therefore, of opinion that this contention is not maintainable. Our finding does not detract from maintaining equality between man & man in the administration of law.
4. Equality intended under Article 14 is not to be judged by equality of sentence. Punishment graded according to age, gravity of the offence in the context of facts & attending circumstances that lend colour to the perversity involved in the crime & other circumstances do not offend the rule of equality that law assumes as to members of the society. The object of punishment is to reform the society by holding out deterrents as precedents. Punishment must be snob as would be felt as punishment by the offender. It must be commensurate with the degree of shook that it causes to the conscience of the society. However in such a general observation, we are strongly supported by Sir Iqbal Ahmad C. J., of the Allahabad H. C. in the case of Emperor v. Kesri Chand, A. I. R. (32) 1945 ALL. 207 : (47 Cr. L. J. 132). His Lordship observes :
'The sentence imposed upon an accused must be commensurate with the gravity of the offence & must amount to a punishment. The fine of Rs. 5000 considering that the accused was a substantial contractor was no punishment to him.'
5. True, at the time, the judgment was delivered, the Indian Constitution 'had not come into force, but I do not think this reasoning would make any difference. Though it was not embodied in any written constitution before, equality of man in the eye of law was always fundamental in administration of justice. It is a rule of natural justice on which all laws are based.
6. We are also, with great respect, in entire agreement with the decision of his Lordship Sir Iqbal Ahmad C. J. in which he lays down certain principles bearing on the manner of imposing punishment. I would quote the passage :
'The main, indeed the only function of law is the preservation of society. The merits of law or a particular enactment are judged by the contribution it makes to the development of a healthy society. The 'social conscience' is the ultimate forum to pass the final verdict on its value or utility. Every piece of legislation is judged by the above standard. If & in so far as it makes the preservation of solidarity of the society or the State, it receives the approbation of 'social conscience.' If otherwise, it is condemned.'
The same thing can be said of administration of justice.
7. The observations in our judgment to the effect that -
'The Allahabad case on which the learned Ses J. has relied was decided more than 17 years ago & since then conditions have changed considerably. Drastic laws for the prevention of corruption amongst public official have been enacted by the Legislature & provisions have been made for passing deterrent sentences on corrupt officials.'
were made by way of reply to the argument put forth by the learned counsel for lighter punishment based on the reasoning adopted by the learned Judges in the reported decision of Emperor v. Dtnkar Rao, 55 ALL. 664 : (A. I. R. (20) 1993 ALL. 513 : 34 Cr. L. J. 623). We must congratulate Mr. Mohanty that he has left no stone unturned to support his client's case. He has been fair & candid in citing to us the authority of the later Allahabad case which gives ample support to the view that we have taken.
8. With regard to the decision in the earlier, Allahabad case. it is regrettable that it was cited before the Ses. J. & also before us notwithstanding that its roll as a precedent has been considerably shaken. In his judgment his Lordship Malik J. (as he then was) has observed, with reference to that decision (reported in Emperor v. Dinkarrao, 55 ALL 654 : (A. I. R. (20) 1933 ALL. 513 : 34 Cr. L. J. 623), that it will not serve as a general rule in the matter of assessment of sentences. I would quote his Lordship :
'The learned Advocate-General has argued that the decision in Emperor v. Dinkar Rao, 55 All. 654 : (A. I. R. (20) 1933 All. 513 : 34 Cr. L. J. 623) is taken by the subordinate Cts. as of general authority & we must lay down that mere fact that trap was laid for the accused should not be any ground for awarding a lighter sentence. I may, however, point out that the question of sentence must in each case depend upon a variety of considerations & is a matter primarily in the discretion of the Ct. which passes the sentence. This Ct. in passing the sentence of a nominal fine in Emperor v. Dinkar Rao, 55 411. 654 : (A. I. R. (20) 1933 All 513 : 34 Cr. L. J. 623) did so in view of the facts of that case & never intended to lay down any general principles in the matter of awarding sentences in oases of bribery ... & all that I need say is that this Ct. did not when deciding the case in Emperor v. Dinkar Rao 55 All. 654 : (A. I. R (20) 1933 All. 513 : 34 Cr. L. J. 623) intend to fetter the discretion of the lower Crs. in any manner as to the adequate sentence to be passed in cases of abetment of bribery.'
9. Further argument that has been put forth by Mr. Mohanty is based upon an observation quoted from the authority of the, I. P. C. The passage reads :
'The person, who, without any demand express or implied on the part of the public servant, volunteers an offer of a bribe, & Induces that public servant to accept it, will be punishable under the general rule (low of abetment) ... as an instigator. But the person who complies with a demand however signified, on the part of a public servant, cannot be considered as guilty of instigating that public servant to receive a bribe. We do Dot propose that such a person, shall be liable to any punishment... We are strongly of opinion that it would be unjust & cruel to punish the giving of a bribe in any case in which it could not be proved that the giver had really by his instigations corrupted the virtue of a public servant, who, unless temptation had been put in his way, would have acted uprightly.'
This passage, however, has absolutely no application to the present case. It is difficult to understand why this passage is cited from time to time which is, if at all. only relevant for the purpose of establishing whether man is guilty or not. Whatever the authors might have intended will not prevent us either from punishing a man or when punishing to sentence him properly if the section itself permits. The Legislature has laid down the quantum of punishment that has to be inflicted for the particular offence. The difference of sentences for the same offence in different cases depends upon the various other considerations which are special to each particular case.
10. We are therefore of opinion that this is not a fit case in which we would grant leave to appeal to the S. C. The petn. is, therefore, rejected.
11. I agree.