http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

[(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.