S.P., New Delhi Vs. Ratan Lal Arora  Insc 319
(26 April 2004)
Raju & Arijit Pasayat.
out of SLP (Crl.) NO. 4693/2003) ARIJIT PASAYAT, J.
impugned judgment a learned Single Judge of the Delhi High Court while
upholding that the respondent- accused's conviction under the Prevention of
Corruption Act, 1988 (in short the 'Act'), was in order, further held him to be
entitled to the benefits available under Section 360 of the Code of Criminal
Procedure, 1973 (in short the 'Code').
State has questioned legality of latter view.
background in short is as follows:
was serving as Commercial Superintendent of the erstwhile DESU office.
Proceedings under the Act were initiated against him for alleged commission of
offence punishable under Sections 7, 13(2) read with Section 13(1)(d) of the
Act for demanding and accepting bribe of Rs.1,500/- from a consumer Mahabir
Prasad (hereinafter referred to as the 'complainant'). After trial by the
Special Judge, Delhi, he was found guilty and sentenced
to undergo rigorous imprisonment for 20 months and a fine of Rs.2,000/- with
default stipulation for offence under Section 7 and 40 months and a fine of
Rs.2,000/- with default stipulation for the offence punishable under section
13(2) of the Act. An appeal bearing Criminal Appeal No. 471 of 1999 was filed
before Delhi High Court. By the impugned judgment the High Court held that the
offences were clearly made out, and upheld convictions, but extended benefits
of Section 360 of the Code taking note of the fact that the respondent-accused
has remained in custody for about 22 days. It was held that bar relating to the
applicability of Probation of Offenders Act, 1958(in short the `Probation Act')
was not operative in respect of offences under the Act though there was a
prohibition under the Prevention of Corruption Act, 1947 (in short the ' old
Act'). It was noted that the minimum sentence prescribed was one year.
taking into account the age, character, behaviour and the situation in which
the offence was found committed, the respondent-accused was directed to be
released on probation of good conduct instead of suffering sentence.
counsel for the appellant submitted that the approach of the High Court is
clearly erroneous. This Court has clearly held that where a statute prescribed
a minimum sentence the Court cannot reduce the sentence any further.
was made to a decision of this Court in State of J & K vs. Vinay Nanda
[2001(2) SCC 504]. The severity of the offence and the chain reaction of any
offence under the Act generated clearly makes Section 360 inapplicable. The
statutory object cannot be diluted by indirectly reducing the minimum sentence.
By operation of Section 8 of the General Clauses Act, 1897 (in short the
'General Clauses Act'), the bar as contained in the old Act clearly applies to
the Act also.
response, learned counsel for the respondent-accused submitted that the High
Court having invoked powers under a beneficial provision i.e. Section 360 of
the Code no interference is called for while exercising jurisdiction under
Article 136 of the Constitution of India, 1950 (In short the 'Constitution').
In the absence of any bar in the Act for extending the benefits under the
provisions of Probation Act provisions of the said Act could have also been
applied, as has been noted by the High Court. In any event Section 360 of the
Code has been rightly applied by the High Court by taking note of the extenuating
circumstances. Section 18 of the Probation Act stipulated that the Act was
inapplicable to offences under the Old Act.
reference was made to Section 5(2) of the old Act which corresponds to Section
13 of the Act. But no change was made in the Probation Act after the Act was
enacted and brought into force in 1988. Reference has been made to decisions of
this Court in S. Natarajan vs. State of Mysore [1979 (4) SCC 542], in N.M. Parthasarathy
vs. State by S.P.E. [1992 (2) SCC 198] and in Balaram Swain vs. State of Orissa
[1991 suppl. (1) SCC 510] to contend that after long passage of time it would
not be proper to send the accused back to jail.
stress was laid on the non-amendment of the Probation Act which referred to the
old Act and not the present Act. It was submitted that since there has been no
corresponding change in the Probation Act, therefore, the provisions of said
Act cannot be applied to cases under the Act. The argument overlooks the
principles underlying Section 8 of the General Clauses Act. When an Act is
repealed and re-enacted unless a different intention is expressed by the
legislature, the reference to the repealed Act would be considered as reference
to the provisions so re-enacted.
decisions referred to by learned counsel for the respondent to show that this
Court had on account of delay extended benefits under Probation Act or Section
360 of the Code cannot have any precedent value being without reference to
statutory bars and shall have to be treated as having been rendered per incuriam.
commission of the offending Act was on 20.1.95 by the respondent who was an
employee of the Delhi Vidyut Board and by a judgment dated 8.9.99 in
C.C.No.59/99, the Special Judge Delhi convicted the respondent under Section 7
of the Act and passed a sentence of 20 months RI in addition to the payment of
a fine of Rs. 2,000/- with a default stipulation.
under Section 13(2) of the Act he was also convicted and sentenced to 40 months
RI, in addition to the payment of a fine of Rs.2,000/- with a default
stipulation. The claim of the respondent for extending the benefit of Section
360 of the Code, which found favour of acceptance with the learned Single Judge
in the High Court seems to have been for the reasons that unlike the provisions
of the old Act, which prohibited release of the convict on probation, the Act
did not contain any such embargo and taking into certain extenuating
the demand and acceptance was of a paltry sum of Rs. 1500/-,
the respondent retired during trial itself from service,
he had turned 64 years of age,
his family circumstances were unhappy and he remained in custody for 22 days.
above facts were in the opinion of the learned Single Judge sufficient for
extending the benefit of probation. It is this approach and the conclusions
that are under challenge in this appeal.
Parliament has enacted the Probation Act and Section 1(3) thereof stipulated
that it shall come into force in a State on such date as the State Government
may by notification in the official gazette appoint. By a notification in the
Gazette of India dated 23.12.1961 this Act was made to apply and enforceable in
the whole State of Delhi w.e.f. 29.12.1960. Section 19 of this Act lays down
that, subject to the provisions of Section 18, Section 562 of the Criminal
Procedure Code, 1898 (hereinafter referred to as `Old Code') shall cease to
apply to the States or parts in which the Probation Act is brought into force.
Old Code came to be repealed and replaced by the Code and Section 360 of the
Code is the corresponding provision to Section 562 in the Old Code. In Bishnu Deo
Shaw v. State of West
Bengal (AIR 1979 SC
964), this Court ruled that Section 360 of the Code re enacts in substance
Section 562 of the Old Code. That apart Section 18 of the Probation Act
stipulates that nothing in the said Act shall affect the provisions of Section
31 of the Reformatory Schools Act, 1897 or sub-Section (2) of Section 5 of the
Old Act. This Court in the decisions reported in Isher Das vs. The State of
Punjab (AIR 1972 SC 1295) and Som Nath Puri vs. State of Rajasthan (AIR 1972 SC
1490) has held specifically adverting to Section 18 that the said provision
renders the Probation Act inapplicable to an offence under sub-Section (2) of
Section 5 of the Old Act, by expressly excluding its operation. Section 13 of
the re-enacted Act is the corresponding provision to Section 5(2) of the Old
impact of the above provisions, in view of the new enactment of the Code and
the Act requires and has to be considered in the light of Section 8 of the
General Clauses Act which reads as under:
Construction of references to repealed enactments.
Where this Act, or any [Central Act] or Regulation made after the commencement
of this Act, repeals and re- enacts, with or without modification, any
provision of a former enactment, then references in any other enactment or in
any instrument to the provision so repealed shall, unless a different intention
appears, be construed as references to the provision so re-enacted.
[Where before the fifteenth day of August, 1947, any Act of Parliament of the
United Kingdom repealed and re-enacted], with or without modification, any
provision of a former enactment, then references in any [Central Act] or in any
Regulation or instrument to the provision so repealed shall, unless a different
intention appears, be construed as references to the provision so
object of the said provision, obvious and patently made known is that where any
Act or Regulation is repealed and re-enacted, references in any other enactment
to provisions of the repealed former enactment must be read and construed as
references to the re-enacted new provisions, unless a different intention
appears. In similar situations this Court had placed reliance upon Section 8 of
the General Clauses Act to tide over the situation. In New Central Jute Mills
Co. Ltd. vs. The Astt. Collector of Central Excise, Allahabad and others (AIR 1971 SC 454), this
Court held it to be possible to read the provisions of the Customs Act, 1962 in
the place of Sea Customs Act, 1878 found mentioned in Section 12 of the Central
Excise and Salt Act, 1944. In State of Bihar vs S.K. Roy (AIR 1966 SC 1995),
this Court held that by virtue of Section 8 of the General Clauses Act,
references to the definition of the word 'employer' in Clause (e) of Section 2
of the Indian Mines Act, 1923 made in Coal Mines Provident Fund and Bonus
Schemes Act, 1948 should be construed as references to the definition of
'owner' in Clause (1) of Section 2 of the Mines Act, 1952, which repealed and
re-enacted 1923 Act. Consequently, the references to Section 562 of Old Code in
Section 19 of the Probation Act and to Section 5(2) of the Old Act in Section
18 of the Probation Act, respectively have to be inevitably read as references
to their corresponding provisions in the newly enacted Code and the Act.
Consequently, for the conviction under Section 13(2) of the Act the principles
enunciated under the Probation Act cannot be extended at all in view of the
mandate contained in Section 18 of the said Act. So far as Section 360 of the
Code is concerned, on and from the date of extension and enforcement of the
provisions of the Probation Act to Delhi powers under Section 562 of the Old
Code and after its repeal and replacement powers under Section 360 of the Code,
cannot be invoked or applied at all, as has been done in the case on hand. The
view taken to the contra is not legally sustainable and cannot have our
apart Section 7 as well as Section 13 of the Act provide for a minimum sentence
of six months and one year respectively in addition to the maximum sentences as
well as imposition of fine. Section 28 further stipulates that the provisions
of the Act shall be in addition to and not in derogation of any other law for
the time being in force. In the case of Superintendent Central Excise,
Bangalore vs Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126-P (2)
(ii) of the Defence of India Rules which prescribed a minimum sentence and
Section 43 of the Defence of India Act, 1962 almost similar to the purport
enshrined in Section 28 of the Act in the context of a claim for granting
relief under the Probation Act, this Court observed that in cases where a
specific enactment, enacted after the Probation Act prescribes a minimum
sentence of imprisonment, the provisions of Probation Act cannot be invoked if
the special Act contains any provision to enforce the same without reference to
any other Act containing a provision, in derogation of the special enactment,
there is no scope for extending the benefit of the Probation Act to the
the provisions contained in Section 5(2) proviso of the Old Act providing for
imposition of a sentence lesser than the minimum sentence of one year therein
for any "special reasons" to be recorded in writing, the Act did not
carry any such power to enable the Court concerned to show any leniency below
the minimum sentence stipulated.
the learned Single Judge in the High Court committed a grave error of law in
extending the benefit of probation even under the Code. At the same time we may
observe that though the reasons assigned by the High Court to extend the
benefits of probation may not be relevant, proper or special reasons for going
below the minimum sentence prescribed which in any event is wholly
impermissible, as held supra, we take them into account to confine the sentence
of imprisonment to the minimum of six months under Section 7 and minimum of one
year under Section 13(2) of the Act, both the sentences to run concurrently.
as the levy of fine in addition made by the learned Trial Judge with a default
clause on two separate courts are concerned, they shall remain unaffected and
are hereby confirmed.
appeal shall stand allowed, but with due modification of the sentences of
imprisonment alone, as indicated supra. The respondent shall surrender to
custody to undergo the remaining period of sentence.