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2006(7) Supreme 694
SUPREME COURT OF INDIA
(From Madras High Court)
Arijit Pasayat and R.V. Raveendran, JJ.
The State rep. by Inspector of Police, Pudukottai, Tamil Nadu—Appellant
versus
A. Parthiban—Respondent
Criminal Appeal No. 842 of 2003
Decided on 9-10-2006
Counsel for the Parties :
For the Appellant : Subramonium Prasad and V.G. Pragasam, Advocates.
For the Respondent : Ms. K. Sarada Devi, Advocate.
Held : 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.(Para 5)
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.(Para 7)
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.(Para 8)
(ii) Prevention of Corruption Act, 1988—Section 13(2)—Probation of Offenders Act—Section 18—For conviction u/s 13(2) of the Act, provisions of Probation Act can not be extended in view of mandate of Section 18 of Probation Act.
Held : 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. (Para 12)
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.(Para 14)
JUDGMENT
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).
2. 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.
3. 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 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 Courts order is clearly vulnerable.
4. 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).
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