Holding

Section 18 of the Jammu & Kashmir Probation of Offenders Act, 1966 excludes its application to offences under the Prevention of Corruption Act, and "special reasons" for reducing the minimum sentence must be distinct from general reasons such as superannuation or prolonged litigation.

Summary

Vinay Nanda, a cashier in the Jammu & Kashmir Procurement Department, was convicted under Section 5(1)(c) of the Jammu & Kashmir Prevention of Corruption Act, 2006 and sections 409 and 468 of the Ranbir Penal Code for misappropriating government funds. The trial court sentenced him to one year of rigorous imprisonment and a fine of Rs.16,000; the High Court upheld the conviction but granted him probation under the Jammu & Kashmir Probation of Offenders Act, 1966. The Supreme Court held that the Probation Act does not apply to offences under the Prevention of Corruption Act, as per its unambiguous Section 18, and therefore set aside the High Court’s order. It further clarified that "special reasons" for reducing the statutory minimum sentence must be distinct from general reasons such as superannuation or prolonged litigation, which are not sufficient. Nonetheless, the Court allowed a reduction of the imprisonment term to six months and the fine to Rs.5,000 under the proviso to Section 5(2) of the Prevention of Corruption Act. The appeal was allowed, restoring the trial court’s sentence with the reduced term.

Issues considered

Whether the Jammu & Kashmir Probation of Offenders Act, 1966 applies to offences under the Jammu & Kashmir Prevention of Corruption Act, 2006.
Whether superannuation, prolonged litigation, or other general circumstances constitute "special reasons" under the proviso to Section 5(2) of the Prevention of Corruption Act for awarding the minimum sentence.
Whether the minimum sentence prescribed by the Prevention of Corruption Act can be reduced below one year in the present case.

Legislation cited

Jammu & Kashmir Prevention of Corruption Act, 2006s. 5(2)
Ranbir Penal Codes. 409, s. 468

Subjects

corruptionminimum sentencespecial reasonsprobation of offenderssuperannuationsentencing mitigationJammu & Kashmir law

Judgment

-. ST A TE OF JAMMU AND KASHMIR
v.
A

"" VINAYNANDA

JANUARY 16, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B
...,,
Jammu & Kashmir Prevention of Corruption Act, Svt. 2006:
/'

· Section 5(2) proviso-Minimum sentence-Imposition of - Criteria to
award-Held: Where there are mitigating circumstances minimum sentence c
may be awarded for 'special reasons'- 'Special reasons' have to be
·distinguished from 'good' or other reasons'-Reaching superannuation is
.... not a 'special reason '-Similarly, prolonged litigation is not a 'special
reason '-Hence, under these circumstances minimum sentence may not be
awarded.
D
Jammu & Kashmir Probation of Offenders Act, 1966:

Section 18-Benefit ofprobation-Applicability of -Accused convicted
-,.. under S.5(2) of the J & K Prevention of Corruption Act and awarded
imprifonment for one year and fine of Rs. 16,000--High Court gave the
accused benefit of J & K Probation of Offenders Act-Correctness of-Held E
: i & K Probation of offenders Act is not applicable to offences under the
J & K Prevention of Corruption Act-Hence, High Court erred in giving the
benefit of J & K Probation of Offenders Act to the accused
~ Words and Phrases:
F
"Special reasons"-Meaning of-:-ln the context of Section 5(2) of the
Jammu & Kashmir Prevention of Corruption Act. Svt. 2006.

The respondent-accused was convicted under Section S(1)(c) cifthe
Jammu & Kashmir Prevention of Corruption Act, Svt 2006 and sentenced
to undergo rigorous imprisonment for one year and to a fine of Rs. 16,000.
G
~
On appeal, the High Court upheld the conviction but gave the respondent the
benefit . under the Jam mu & Kashmir Probation of Offenders Act, 1966.
Hence this appeal.

On behalf of the accused it was contended that as there existed
399 H
400 SUPREME COURT REPORTS (200 I] I S.C.R.

A special circumstances the accused be not sent fo jail; and that since the
accused had reached superannuation the minimum sentence in terms of the
proviso to Section 5(2) of the J & K Prevention of Corruption Act, Svt. 2006
be awarded to him.

Allowing the appeal, the Court
B
HELD: 1. In view of the unambiguous and categorical provisions of
Section 18 of the Jammu & Kashmir Probation of Offenders Act, 1966, it
must be held that the High Court was not justified in giving the respondent
the benefit of the Jam mu & Kashmir Probation of Offenders Act, 1966 as
C the said Act was not applicable to offences under the Jammu & Kashmir
Prevention of Corruption Act, Svt. 2006. (404-A; 404-81

2.1. Where the mandate of law is clear and unambiguous, the court
has no option but to pass the sentence upon conviction as provided under the
statute. (405-C(
D
Aditya Nath Pandey v. State of U.P., (2000) SCC (Cr. P.) 1206;
Vidyadhar Ganesh Lanjekar v. State of Maharashtra, (1993) Cr. P. Law
Journal 3667 and Ghulam Din Buch v. State of J & K, (1996) 9 SCC 239,
held inapplicable.

E 2.2. The mitigating circumstances in a case, if established, would
authorise the court to pass such sentence of imprisonment or fine which may
be deemed to be reasonable but not less than the minimum prescribed under
an enactment. For imposing the minimum sentence the court has to record
special reasons. 'Special reasons' have to be distinguished from 'good' or
F 'other reasons'. The fact that the convict had reached his superannuation
is not a special reason. Similarly, pendency of criminal case for_ over a period
of time can also not be treated as a special reason. Prolonged litigation in
the country is admittedly a general reason in criminal cases. None of the
circumstances stated by the respondent in his affidavit by itself constitute
a 'special reason'. (405-F-G-H; 406-D(
G
Jagjeevan Prasad v. State of MP, (2000) 8 SCC 22, relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
82 of 200 I.

H From the Judgment and Order dated 19.05.2000 in CRLFA 29/95 of the
STATE OF J. & K. v. VINA Y NANDA [SETI-II, J.] 401
High Court of J & K at Jammu. A
Jaspal Singh, Ashok Mathur, Pawan Kumar Bahl, Harish Kumar and
M.M. Kashyap for the appearing parties.

The Judgment of the Court was delivered by
B
SETHI, J. Leave granted.

Corruption at any level, by any person, of any magnitude is condemnable
which cannot be ignored by the judicial courts, when proved. No leniency is
required to be shown in proved cases under the Prevention of Corruption Act
which itself treats the offences under it of a special nature to be treated C
differently than the general penal offences. The convicts of the offences
under the Act are to be dealt with heavy hand and deterrent rod. No populous
or sympathetic approach is needed in such cases. The only exception is the
existence of special circumstances for awarding the minimum sentence.

The important point of law involved in the present appeal is as to D
whether the benefit of Jam mu & Kashmir Probation of Offenders Act can be
extended to the convicts under the Jammu & Kashmir Prevention of Corruption
Act, Svt. 2006 (hereinafter referred to as "the Act").

The facts giving rise to the determination of the question noted E
hereinabove are that the respondent, when posted as cashier in the Procurement
Department of the State of Jam mu & Kashmir, tampered the record regarding
the carriage of store articles to and fro through RTC vehicles. The word
"RTC" was changed into "one RTC Vehicles" and the words "RTC was
changed into the words "BTC". After withdrawing Government money for
making payment to the carriers, the respondent was alleged to have F
misappropriated the amount with the connivance of his superior officers. It
was specifically stated in the complaint filed against him that with the
connivance of the Account Officer Shri Babu Ram Sharma the respondent
encashed a cheque of Rs. 89,000 from the Treasury and misappropriated the
same. On receipt of the complaint against the respondent, a preliminary G
enquiry was conducted during which it transpired that accused had in fact
misappropriated the amount upon which a regular FIR No.23 of 1987 was
registered and investigation commenced. During the investigation it was
found that Cheque No. 0547185 for an amount of Rs.97,952.11 was encashed
by the respondent-accused but instead of remitting the amount into the
Treasury, he misappropriated the same. To conceal the embezzlement he H
+
402 SUPREME COURT REPORTS (2001] I S.C.R.

A defalcated the account by making a false entry of remittance in cash book at
Page No.41. The accused confessed the non remittance of the account and
when show cause notice was issued to him on 1.3.1985, he refunded the said
amount in different instalments during the years 1985-87. After completion of
the investigation charge-sheet was filed in the court of Special Judge, Anti
Corruption, Jammu who charged him for the commission of offences under
B Section 5(2) of the Act and Sections 409 and 468 of the Ranbir Penal Code
vide its order dated !st May, 1991. The accused pleaded not guilty to the
charge and claimed to be tried.

To prove its case, the prosecution had examined S/Sh. Davinder Singh,
C Shambu Nath, Dharampal, Om Parkash, Nertar Parkash, Babu Ram, Romesh
Kumar Bali, Khajour Singh, Suram Singh, Bal Krishan, Jagdish Chander, Radhey
Shayam, Kuldeep Khoda, R.P. Abrol and Ranbir Singh as witnesses. Jn his
statement recorded under Section 342 of the Code of Crim in al Procedure
corresponding to Section 313 of the Central Criminal Procedure Code, the
respondent denied all the allegations. After critically examining the evidence
D led in the case, the Special Judge, vide an elaborate judgment found the
respondent guilty of commission of offences under Section 5( l)(c) of the Act
and Section 409 and 468 of the Ranbir Penal Code. Upon his conviction the
respondent was sentenced to undergo imprisonment for one year on each
count besidt~s paying a total fine of Rs. 16,000. All the sentences were
E directed to run concurrently.

Not satisfied with the judgment of the Special Judge, the respondent
filed an appeal which was disposed of by the judgment impugned in this case
by upholding the conviction of the respondent but giving him the benefit of
probation under the Jam mu & Kashmir Probation of Offenders Act. He was
F directed to furnish a bond for maintaining good conduct for a period of three
years and to pay costs in terms of Section 5(l)(b) of the said Act which were
assessed at Rs. 2000. The costs were to be deposited with the Registrar
(Judicial) within a period of three months. In case that direction was not
complied with, the respondent was ordered to suffer jail sentence for six -'
G months.
Feeling aggrieved by the judgment of the High Court, the present
appeal has been filed by the State. However, the respondent has not challenged
the finding of fact arrived at by the High Court.

H In his judgment, the learned Single Judge of the High Court held:
STATEOFJ.&K. v.VINAYNANDA[SETHl,J.) 403

"The facts which are undisputed are: A
(i) That a sum of Rs. 97,952.11 was withdrawn by the appellant by
self cheque No. 0547185. This was done on 30.8.1984.

(ii) The aforementioned amount was not deposited in the account.

(iii) That a Senior Officer namely Babu Ram on checking the account B
found that the aforementioned amount though withdrawn was
not deposited in the State Treasury.

(iv) That an enquiry was held. Thereafter the appellants deposited
the amount on various dates. This was of course done before
the present criminal investigation started in this case." C
The plea of the respondent that while he was on his way to deposit the entire
amount in the Jammu & Kashmir Bank a sum of Rs. 40,000 was lost, was held
to have been not substantiated. Deposits were proved to have been made
after the factum of withholding the money by the respondent came to the
notice to his superior officer, Sh. Babu Ram Sharma. D
The trial court as well as the High Court has concurrently held the
accused guilty for the c?mmission of the offences with which he was charged.
However, the High Court was persuaded to take a sympathetic view in the
matter on the existence of circumstances justifying a lenient action and E
.benefit of the Jammu & Kashmir Probation of Offenders Act was given as
noticed earlier. It appears that the learned Single Judge of the High Court was
not apprised of the relevant provisions of the Jammu & Kashmir Probation
of Offenders Act, 1966 (hereinafter referred to as "the 1966 Act") which
resulted in the passing of the judgment impugned. Sub-section (3) of Section
I of the 1966 Act provides that: F
"It shall come into force on such date as the Government may, by
notification in the Government Gazette, appoint and different dates
may be appointed for different parts of the State."

The Act has been enforced in the Cities of Jammu & Srinagar w.e.f. G
15th May, 1969 by SRO 267 dated 3rd May, 1969 and in the Districts of Jammu
& Srinagar w.e.f. 15th January, 1970 by SRO 23 dated 15th January, 1970.
Despite its extension to whole of the State of Jammu & Kashmir its provisions
are not shown tci have been applied to the other parts of the State.

Section 18 of the said Act reads: H
404 SUPREME COURT REPORTS [2001] I S.C.R.

A "Saving of operation of certain enactments: Nothing, in this Act shail,
affect the provision of sub-section (2), of section 5 of the Jam mu and
Kashmir Prevention of Corruption Act Svt. 2006 or the supersession
of Immoral Traffic in Woman and Girls Act, 1956 (Central Act of 1956)
or any law in force in the State relating to Juvenile Offenders."

B In view of unambiguous and categoric provisions of Section 18 of the
Jammu & Kashmir Probation of Offenders Act, it is incumbent upon us to
hold that the High Court was not justified in giving the respondent the benefit
of the Jammu & Kashmir Probation of Offenders Act as the said Act was not
applicable to offences under the Act. We are sure that had the provisions of
C the 1966 Act been brought to the notice of the High Court, the order impugned
could not have been passed. The judgment impugned in this appeal is,
therefore, liable to be set aside.

Faced with this situation, the learned counsel for the respondent
submitted that the case be remitted back to the High Court for deciding it
D afresh. We are not impressed by this submission inasmuch as concededly the
respondent has not filed any appeal against the finding of conviction recorded
by both the courts against him. Under the circumstances of the case no useful
purpose would be served by remanding the case.

Mr. Jaspal Singh, learned Senior Advocate appearing for the respondent
E then submitted that as there exist special circumstances, the respondent be
not sent to the jail. at this stage particularly when he has complied with the
directions of the High Court. To appreciate this submission a reference has
to be made to the provisions of the Act prescribing sentence upon conviction
under it. Section 5(2) of the Act, as substituted by Act No.9 of I993, provides:
F
"Any public servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall not be less than
one year but which may extend seven years and shall also be liable
to fine:

G Provided that the court may, for any special reasons recorded in
writing, impose a sentence of imprisonment of less than one year but
not less than six months.".

It is the mandate of law that a person convicted under the Act can be
sentenced for a term upto seven years and not less than one year. According
H to the proviso, the sentence can further be reduced to six months only "for
STATE OF J. & K. v. VINA Y NANDA [SETHI, J.) 405
any special reasons recorded in writing". A
Relying upon the judgments of this Court in Aditya Nath Pandey v.
State of UP., (2000] SCC (Cri.) 1206; Vidyadhar Ganesh Lanjekar v. State of
Maharashtra, (1993] Cri.Law Journal 3667 and Ghu/am Din Buch & Ors. v.
State of J & K, (1996] 9 SCC 239 the learned Senior Counsel appearing for
the respondent has submitted that in view of peculiar and special circumstances B
of this case, the ends of justice would be met only by awarding the sentence
of fine to his client without sending him to jail at this stage. However, the
perusal of the aforesaid judgments indicates that in none of the cases the
Court considered the effect of provisions of law prescribing the minimum
sentence upon conviction under the Act. Where the mandate of law is clear C
and unambiguous, the Court has no option but to pass the sentence upon
conviction as provided under the statute. In Ghulam Din Buch's case the
Court considered the scope of Section 5(2) of the Act prior to its amendment,
when it observed:

"Though the proviso permits not to impose a sentence of imprisonment D
at all and confines the sentence to fine only, we do not think if the
present is a case where the punishment to be awarded should be only
fine, as any softness in this regard would produce an undesirable
result, namely, encouragement to adoption of corrupt means by public
servants which has indeed to be checked, and not allowed to be
encouraged. Keeping in view all the attending circumstances, we are E
of the view that a sentence of RI for two months would be adequate
sentence, apart from the fine of Rs.15,000."

The mitigating circumstances in a case, if established, would authorise
the Court to pass such sentence of imprisonment or fine which may be
deemed to be reasonable but not less than the minimum prescribed under an F
enactment.

On behalf of the respondent it has been argued in the alternative that
upon conviction the minimum sentence in terms of proviso to sub-section (2)
of Section 5 of the Court be awarded in the case. For imposing the minimum G
sentence the court has to record special reasons. 'Special reasons' have to
be distinguished from 'good' or 'other reasons'. TQe fact that the convict had
reached his superannuation is not a special reason. Similarly pendency of
criminal case for over a period of time can also not be treated as a special
reason. Prolonged litigation in the country is admittedly a general reason in
criminal cases. This Court under similar circumstances in Jagjeevan Prasad H
406 SUPREME COURT REPORTS [2001) I S.C.R.

A v. Stale of MP., (2000] 8 sec 22 observed:
"Yet another consequence would be that if any public servant succeeds
in protracting the criminal proceedings to the stage of superannuation
he can also claim the benefit of"special reasons", ifthe High Court's
reasoning is to be accepted. We find the High Court's approach not
B only erroneous but prenicious, and therefore, impermissible in law.
Such a ground cannot by any stretch of imagination be treated as
"special reasons"."

The respondent ras filed an affidavit in this Court stating therein that
he was facing the trial since 1987 and the amount allegedly misappropriated
C has already been deposited by him with the Government. He submits to have
been punished departmentally vide orders of the Chief Engineer dated 13.1.1993.
He claims to be the only bread earner in the family who has to support his
wife, one unmarried daughter and two sons aged about 18 and 17 years. None
of the circumstances, stated in his affidavit, by itself constitute a "special
D reason". However, keeping in view the general conspectus of the case, we feel
that under the totality of the circumstances narrated, the respondent has
made out a case for invoking the proviso to Sub-section (2) of Section 5 of
the Act. We have further been persuaded to give him such a benefit in view
of the obs<:rvations made in his favour by the trial court in para 55 of its
judgment and the High Court in the judgment impugned before us.
E
Under the circumstances, the appeal is allowed by setting aside the
impugned judgment of the High Court and restoring the judgment of the trial
court by which the accused-respondent has been convicted and sentenced
for offence as noticed earlier. However, giving the respondent benefit of
proviso to sub-section (2) of Section 5 of the Act, the sentences of
F imprisonment awarded to him for all the offences are reduced from one year
to six months. Such terms of imprisonments of the sentences would run
concurrently. Sentences of fine imposed upon the respondent amounting to
Rs. 16,000 in all are also reduced to Rs. 5,000. The respondent shall be taken
into custody to undergo the sentence on all account for a period of six
G months and to pay the fine in terms of the order of the trial court. In default
of the payment of fine he will undergo further imprisonment as awarded to f
him by the trial court.

v.s.s. Appeal allowed.