IMPORTANT POINT
Benefit of probation cannot be extended to a person convicted u/s 13(2) of Prevention of Corruption Act.

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. 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.

3. 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 sentence.

4. 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.

5. 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 con