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CASE NO.: Appeal (crl.)  842 of 2003

PETITIONER: The State rep. by Inspector of Police,Pudukottai, Tamil Nadu

RESPONDENT: A. Parthiban

DATE OF JUDGMENT: 09/10/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

The State of Tamil Nadu is in appeal questioning  correctness of the decision rendered by a learned Single Judge  of the Madras High Court holding that the trial Court was not  justified in convicting the respondent in terms of Sections 7  and 13(2) read with Section 13(1)(d) of the Prevention of  Corruption Act, 1988 (in short ’the Act’).    

A brief reference to the factual aspects would suffice: The respondent was convicted for offence punishable  under Sections 7 and 13(2) read with Section 13(1)(d) of the  Act. He was sentenced to undergo RI for six months and to pay  a fine of Rs.500/- with default stipulation for the earlier  offence and RI for one year and to pay a fine of Rs.1,000/-  with default stipulation for the latter offence.  The conviction  was recorded and sentenced imposed by learned Chief Judicial  Magistrate and Special Judge Pudukottai.  The said judgment  in Special Case No.4 of 1991 was challenged before the  Madras High Court which by the judgment dated 28.3.2002 in  Criminal Appeal No.659 of 1994 held that the conviction  under Section 13(2) read with Section 13(1)(d) of the Act was  not maintainable and was accordingly set aside. However, the  conviction for offence under Section 7 of the Act was  confirmed. The High Court held that for a single act it would  not be proper to convict the accused under both the sections.  Accordingly, the sentence and conviction in terms of Section  13(2) read with Section 13(1)(d) of the Act was set aside.   Provisions of Section 360 of the Code of Criminal Procedure,  1973 (in short ’Cr.P.C.’) were applied and the respondent was  directed to be released on probation.   

Learned counsel for the appellant submitted that the  approach of the High Court is clearly erroneous. Section 7 and  Section 13(2) read with Section 13(1)(d) of the Act operate  separately and, therefore, it cannot be said that the Trial  Court was not justified to convict both under Sections 7 and  13(2) read with Section 13(1)(d) of the Act. Additionally,  provisions of Section 360 Cr.P.C. are not applicable to offences  under the Act. Learned counsel for the appellant further  submitted that 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 v. Vinay Nand [2001(2) SCC 504]. The

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severity of the offence and the chain reaction of any offence  under the Act generated clearly make Section 360  inapplicable. By operation of Section 8 of the General Clauses  Act, 1897 (in short the ’General Clauses Act’), the bar  contained with reference to Section 5(2) of the Prevention of  Corruption Act, 1947 (in short ’Old Act’) clearly applies with  respect to Section 13(2) of the Act also. It was, therefore,  submitted that the High Court’s order is clearly vulnerable.

Learned counsel for the respondent submitted that  though Section 7 and Section 13(2) read with Section 13(1)(d)  of the Act operate in different fields, in a given case where  there is a single offence, the conviction cannot be both under  Section 7 and Section 13(2) read with Section 13(1)(d) of the  Act.  It was further submitted that Section 18 of Probation of  Offenders Act, 1958 (in short ’Probation Act’) made the  provisions of that inapplicable to only Section 5(2) of the Act  and corresponding to Section 13(2) of the Act; and Section 18  of the Probation Act did not bar the application of the  provisions of that Act to Section 7 of the Act which is  analogous to Section 161 of Indian Penal Code, 1860 (in short  ’I.P.C.’) and, therefore, where the conviction is only under  Section 7 of the Act, Section 360 Cr.P.C. was clearly  applicable. 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’).    

The stand that respondent could not have been  simultaneously convicted for offences relatable to Section 7  and Section 13(2) read with Section 13(1)(d) of the Act, as held  by the High Court is clearly unacceptable.  Section 71 IPC  provides the complete answer.  The same reads as follows: "71. Limit of punishment of offence made up of  several offences. - Where anything which is an  offence is made up of parts, any of which parts  is itself an offence, the offender shall not be  punished with the punishment of more than  one of such his offences, unless it be so  expressly provided. Where anything is an offence falling  within two or more separate definitions of any  law in force for the time being by which  offences are defined or punished, or  where several acts, of which one or more  than one would by itself or themselves  constitute an offence, constitute, when  combined, a different offence,  the offender shall not be punished with a  more severe punishment than the court which  tries him could award for any one of such  offences."   The position is further crystalised in Section 220 of the  Cr.P.C.  Same reads as follows: "220. Trial for more than one offence.\027(1) If, in  one series of acts so connected together as to  form the same transaction, more offences than  one are committed by the same person, he  may be charged with, and tried at one trial for,  every such offence.  (2) When a person charged with one or more  offences of criminal breach of trust or  dishonest misappropriation of properly as

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provided in sub-section (2) of section 212 or in  sub-section (1) of section 219, is accused of  committing, for the purpose of facilitating or  concealing the commission of that offence or  those offences, one or more offences of  falsification of accounts, he may be charged  with, and tried at one trial for, every such  offence.  (3) If the acts alleged constitute an offence  falling within two or more separate definitions  of any law in force for the time being by which  offences are defined or punished, the person  accused of them may be charged with, and  tried at one trial for, each of such offences.  (4) If several acts, of which one or more than  one would by itself or themselves constitute an  offence, constitute when combined a different  offence, the person accused of them may be  charged with, and tried at one trial for the  offence constituted by such acts when  combined, and for any offence constituted by  any one, or more, or such acts.  (5) Nothing contained in this section shall  affect section 71 of the Indian Penal Code (45  of 1860)."

The crucial question is whether the alleged act is an  offence and if the answer is in the affirmative, whether it is  capable of being construed as offence under one or more  provisions.  That is the essence of Section 71 IPC, in the back  drop of Section 220 Cr.P.C.

Every acceptance of illegal gratification whether preceded  by a demand or not, would be covered by Section 7 of the Act.  But if the acceptance of an illegal gratification is in pursuance  of a demand by the public servant, then it would also fall  under section 13(1)(d) of the Act. The act alleged against the  respondent, of demanding and receiving illegal gratification  constitutes an offence both under Section 7 and under Section  13(1)(d) of the Act. The offence being a single transaction, but  falling under two different Sections, the offender cannot be  liable for double penalty. But the High Court committed an  error in holding that a single act of receiving an illegal  gratification, where there was demand and acceptance, cannot  be an offence both under Section 7 and under Section 13(1)(d)  of the Act. As the offence is one which falls under two different  sections providing different punishments, the offender should  not be punished with a more severe punishment than the  court could award to the person for any one of the two  offences. In this case, minimum punishment under Section 7  is six months and the minimum punishment under Section  13(1)(d) is one year. If an offence falls under both Sections 7  and 13(1)(d) and the court wants to award only the minimum  punishment, then the punishment would be one year. It was next contended by the respondent that 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 punishable under Section  5(2) of 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

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enacted and brought into force in 1988. 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 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 be  notification in the official gazette appoint. In State of Tamil  Nadu it came into force in the entire State in the year 1964.  Section 19 of that 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 (1979 (3) SCC 714), this Court ruled  that Section 360 of the Code i.e. enacts in substance Section  562 of the Old Code. That apart, Section 18 of the Probation  Act inter-alia stipulates that nothing in the said Act shall  affect the provisions of Sub-section (2) of Section 5 of the Old  Act. This Court in the decisions reported in Isher Das v. The  State of Punjab (1973 (2) SCC 65) and Som Nath Puri v. State  of Rajasthan (1972 (1) SCC 630), 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(2) of the re-enacted Act is the  corresponding provision to Section 5(2) of the Old Act. The import 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. (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

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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. v. The Astt. Collector of Central Excise,  Allahabad and Ors. (1970 (2) SCC 820), 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  v. 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 Madras 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.  In the case of Superintendent Central Excise, Bangalore  v. Bahubali (1979 (2) SCC 279),  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 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.  These aspects were highlighted in State through  SP, New Delhi v. Ratan Lal Arora  (2004 (4) SCC 590).  Consequently, the learned Single Judge in the High  Court committed a grave error in law in extending the benefit  of probation even under the Code. The sentences of  imprisonment shall be six months under Section 7 and 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  counts are concerned, they shall remain unaffected and are  hereby confirmed.

The appeal is accordingly allowed.                   28099