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D.S. Bhandari Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 81 of 1971
Judge
Reported in1973(6)WLN765
AppellantD.S. Bhandari
RespondentThe State of Rajasthan
Cases ReferredB.C. Goswami v. Delhi Administration
Excerpt:
.....prescription of the doctors to establish the fact of his ill health. the appellant has further stated that he has a big family to support and he is the only earning member to support the members of his family. the incident is of 1965 and since then 7 years have elapsed. all these factors in my opinion provide a basis for taking a lenient view in the matter of sentence. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of..........by learned special judge for rajasthan jaipur city hereinafter called the special judge. the learned special judge convicted the appellant under sections 420 and 468 ipc and sentenced him to undergo six months' rigorous imprisonment and to pay a fine of rs. 100/- on each count. he further convicted the accused under section 5(1)(d) read with section 5(2) of the prevention of corruption act and sentenced him to one year's rigorous imprisonment and to pay a fine of rs. 100/-. the learned judge further directed that in case of default in payment of fine, the accused shall have to undergo two months' further rigorous imprisonment.2. briefly the prosecution case is like this: the appellant d.s. bhandari was a development officer in the life insurance corporation of india (hereinafter.....
Judgment:

M.L. Joshi, J.

1. Appellant D.S. Bhandari has come up by way of appeal to this Court against the judgment of conviction passed by learned Special Judge for Rajasthan Jaipur city hereinafter called the Special Judge. The learned Special Judge convicted the appellant under Sections 420 and 468 IPC and sentenced him to undergo six months' rigorous imprisonment and to pay a fine of Rs. 100/- on each count. He further convicted the accused under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentenced him to one year's rigorous imprisonment and to pay a fine of Rs. 100/-. The learned Judge further directed that in case of default in payment of fine, the accused shall have to undergo two months' further rigorous imprisonment.

2. Briefly the prosecution case is like this: The appellant D.S. Bhandari was a Development Officer in the Life Insurance Corporation of India (hereinafter referred to as the L.I.C.) at Sumerpur under Branch Office, Pali, Rajasthan. Functioning in that capacity, according to the prosecution, the appellant secured two insurance proposals No. 7245-323 and 6747-323 in the sum of Rs. 10,000/- and Rs. 20,000/- respectively from one Dayalal Shah knowing that Dayalal Shah was suffering from paralysis since 31st of October, 1959, and also from high blood pressure. Further prosecution case is that the appellant himself filled the aforesaid two proposals and managed to obtain two medical false reports on 29-1-1965 and falsely mentioned the name of Danmal as Insurance Agent in regard to the aforesaid two proposals, although Dannlal never signed the proposals According to the prosecution, on the proposals, signatures of Danmal were forged by the accused with a view to gain undue pecuniary advantage for himself and also to earn a departmental credit. The prosecution further alleged that the appellant dishonestly induced the L.I C, to deliver the aforesaid two policies and thereby criminally misconducted himself as public servant. When these facts were brought to light F.I.R. Ex. P. 217 was lodged on 15-11-1965 with the Superintendent of Police Establishment, hereinafter referred to as the S.P.E. and C.B.I. The case was registered on the same day i.e. on 15-11-1965. After obtaining necessary sanction the police submitted a challan on 9-9-1966 before the Special Judge. The accused pleaded not guilty in reply to the charge. After completion of the trial the learned Special Judge convicted the appellant as mentioned above.

3. The learned Counsel for the appellant submitted an application on 31st of August, 1973, duly signed by the appellant. It has been stated in that application that the appellant did not want to challenge the conviction but he prayed that in view of his ill health and prolonged mental agnoy, a lenient view should be taken in the matter of sentence. Yet another application has been moved on behalf of the appellant on 24-9-1973 along with this application reiterating the grounds mentioned in the earlier application and further to establish the fact of his ill health he has filed three certificates. The one is by Dr. P.N Mistry, Orthopaedic Surgeon, Dr, S.N. Medical College Jodhpur. The second certificate is of Dr. R.K. Bhargava, Superintendent Associated, Hospitals and the last by Dr. S.S. Ravat, Reader in surgery. The facts mentioned in this application including the state of health certified by the doctors have been verified on oath by the appellant.

4. Mr. V.S. Dave the learned Counsel for the appellant contended that the incident related back to January 1965. The challan was put in against the accused on 9-9-1966 and the accused had remained in jail in pursuance of the order of conviction for 5 days and looking to the pecuniary loss which the accused has suffered and also the present state of his health a lenient view in the matter of substantive sentence be taken. The learned Counsel further argued that the appellant has a large family consisting of two sons and three daughters who are still unmarried and there is no other earning member excepting the accused-appellant to maintain them. On this basis the learned Counsel urged that the interest of justice in the facts and circumstances of the case will be served if the substantive sentence is reduced to one already undergone by him.

5. Mr. R.S. Parihar, the learned Counsel for the State has not controverted the facts mentioned in the two applications. Indeed, he stated that in the facts and circumstances of the case a lenient view in the matter of substantive sentence would serve the ends of justice.

6. I have heard learned Counsel for the parties. Mr. Dave has invited my attention to the four decisions of this Court (i) S.B Criminal Appeals Nos. 425 and 426 of 1966 (Rampal v. State) decided on 28th January, 1970, (2) S B. Ciiminal Appeal No. 474 of 1970 (Khemchand Jain v. State) decided on 9-11-1971, (3) S.B. Criminal Appeal No. 505 of 1964 (Jasraj v. State) decided on 6-12-1965 and (4) S.B. Criminal Appeals Nos. 659, 660 of 1968 and 647 of 1967 (Parasrmal Modi v. State) decided on 17-11-1970. He has further referred to me B.C. Goswami v. Delhi Administration : 1974CriLJ243 . I have gone through the unreported decisions of this Court referred to above. The facts involved in those cases were substantially similar to the facts involved in the present case, In those cases this Court has taken into account the question of pecuniary loss caused to the accused and also the long duration of the pendency of the criminal proceedings against the accused persons while reduciny the substantive sentence to one already undergone. Special reference may be made in the regard to a Supreme Court case B.C. Goswami v. Delhi Administration : 1974CriLJ243 , That case was also under Section 5(1)(d) of the Prevention of Corruption Act. Dealing with the question of sentence the Supreme Court has given guide lines in the matter of determining the quantum of sentence. I can do no better than, to extract the relevant observations from the Supreme Court case:.The only question which arises is that under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year & there must also be imposition of fine The sentence of imprisonment can be for lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now 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 and reclaim 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 effaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-....

I have purposely extracted the observations of their Lordships of the Supreme Court in extenso as the factors which impressed their Lordships of the Supreme Court to reduce the substantial sentence are also present in the case before me. The accused has been dismissed from service in the year 1968 and has lost all the benefits of service which fact is not disputed by the learned Counsel for the State also. The medical certificates produced before me have been sworn on oath by the accused. The medical certificates issued by Shri R.K. Bhargava is to the effect that the accused is a patient of acute coronary insufficiency. This certificate is dated 7-9-1973 The medical certificate issued by Dr. Mistry states that the appellant is suffering from chronic 'Jumbo saral strain' with sciatica and had been in his treatment. The certificate issued by Dr. Ravat who is a Reader in S.N. Medical College certifies to the effect that the appellant has been under his treatment for chronic pepticuler and sciatica since 1970. It has been further certified by Dr. Ravat that the appellant continues to suffer from the above disease. The appellant has also produced prescription of the doctors to establish the fact of his ill health. The appellant has further stated that he has a big family to support and he is the only earning member to support the members of his family. The incident is of 1965 and since then 7 years have elapsed. All these factors in my opinion provide a basis for taking a lenient view in the matter of sentence. In the facts and circumstances of this case I am inclined to take lenient view in the matter of substantial sentence and reduce the same to the one already undergone by the appellant. The sentence of fine, however, deserves to be enhanced as the motive of the accused as appears from the record was to gain pecuniary advantage by getting departmental promotion by unfair means. The sentence of fine is therefore enhanced from Rs. 100/- to Rs. 200/-on each count referred to above. The appeal is partly allowed in terms mentioned above. The appellant is granted ten days time to deposit the amount of fine in the Court of Special Judge, Jaipur.


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