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CASE NO.:

Appeal (crl.) 532 of 2004

PETITIONER:

State through S.P., New Delhi

RESPONDENT:

Ratan Lal Arora

DATE OF JUDGMENT: 26/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) NO. 4693/2003)

ARIJIT PASAYAT, J.

Leave granted.

By the 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').

The State has questioned legality of latter view.

Factual background in short is as follows :

Respondent-accused 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.

Purportedly 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

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sentence.

Learned 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.

Reference 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.

In 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.

Specific 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.

Much 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.

The 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.

The 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.

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Further 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 circumstances noticed, (a) that the demand and

acceptance was of a paltry sum of Rs. 1500/-, (b) that the

respondent retired during trial itself from service, (c)

that he had turned 64 years of age, (d) that his family

circumstances were unhappy and he remained in custody for 22

days. The 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.

The 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 Act.

The 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:

"8. Construction of references to repealed

enactments. [(1) 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.

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[(2) [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 re-enacted.]"

The 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 approval.

That 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

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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 accused.

Unlike, 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.

Consequently, 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 \026 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.

So far 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.

The 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.