Sections 18 and 19 of the Probation of Offenders Act, 1958, exclude the application of Section 360 of the Code of Criminal Procedure, 1973, to cases under Section 5(2) of the Prevention of Corruption Act, 1947, thereby denying the benefit of probation to individuals convicted under Section 5(2) of the Prevention of Corruption Act.

KULWANT SINGH TIWANA, J.

1. In Criminal Appeal No. 1300 of 1973 - Jaswant Rai V/s. State of Punjab, decided on 4th of January, 1978, a learned single Judge of this Court, upholding the conviction of the accused under S.5 (2) of the Prevention of Corruption Act, 1947, allowed him the benefit of Sec.360 of the Code of Criminal Procedure, 1973, (hereinafter referred as the new Code), and directed his release on probation for a particular period on his furnishing a surety bond to be of good behaviour and to maintain peace. This judgment was followed by two other learned single Judges of this Court sitting singly in Criminal Appeal No. 720 of 1975 - Suraj Parkash V/s. State of Punjab, decided on 22nd of February, 1979 and Criminal Appeal No. 1611 of 1975 - Amin Chand V/s. The State (Union Territory, Chandigarh), decided on 19th of April, 1979. In the case in hand, D. S. Tewatia, J. affirmed the order of conviction of Gurbachan Singh appellant under Section 5 (2) of the Prevention of Corruption Act, 1947, on merits. The learned counsel for the appellant citing the above referred three judgments of this Court as precedents craved for the release of the appellant on probation by invoking the provisions of Section 360 of the new Code. D. S. Tewatia, J. did not agree with the view expressed by the learned Judges of this Court in the three above referred appeals, as Section 18 of the Probation of Offenders Act, 1958 excluded Section 5 (2) of the Prevention of Corruption Act from the operation of this Act. Because of this disagreement, D. S. Tewatia, J. referred this case to a larger Bench for a decision whether Section 360 of the new Code is applicable to the cases under Section 5 (2) of the Prevention of Corruption Act. This is how this matter has come before this Bench.

2. A contrary view was expressed by Gurnam Singh, J. in Criminal Appeal No. 503 of 1976-Bansi Dhar V/s. State of Haryana, decided on 21st of August, 1979, and it was observed in that judgment:-

"The provisions of the Probation of Offenders Act of 1958 are not applicable to the offences punishable under Section 5 (2) of the Prevention of Corruption Act vide Section 18 of the Probation of Offenders Act. The provisions of Section 562, Criminal procedure Code, 1898, will also not apply. Under Section 19 of the Probation of Offenders Act the provisions of Section 562 of the Code of Criminal Procedure, 1898, ceased to apply to the State or parts thereof in which this Act (Probation of Offenders Act) is brought into force but that is subject to the provisions of Section 18 of the Probation of Offenders Act. The provisions of Section 562, Criminal procedure Code, 1898, are in pari materia with Sec. 360, Criminal Procedure Code, 1973. Under these circumstances, in a corruption case, the accused cannot be ordered to be released on probation of good conduct or after admonition. It appears that the provisions of Sections 18 and 19 of the Probation of Offenders Act were not brought to the notice of the Hon ble Judges, who decided the aforesaid criminal appeals cited by the counsel for the appellant. The accused-appellant in this case thus is not entitled to be released on probation of good conduct."

This judgment of Gurnam Singh, J. was not brought to the notice of D. S. Tewatia, J.

3 As the provisions of Sections 4 and 5 of the Probation of Offenders Act and Section 360 of the new Code are almost similar, the consideration of Sections 18 and 19 of the Probation of Offenders Act would be beneficial. Sections 18 and 19 of the Probation of Offenders Act are as follows :-

"Sec. 18 : Nothing in this Act shall affect the provisions of Section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), or the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956), or of any law in force in any State relating to juvenile offenders or Borstal schools.

Section 19: Subject to the provisi