STATE THROUGH S.P., NEW DELHIversusRATAN LAL ARORA

                    STATE THROUGH S.P., NEW DELHI                              A
                                      \I.

                            RATAN LAL ARORA

                              APRIL 26, 2004

            [DORAISWAMY RAJU AND ARIJIT PASAY AT, JJ.]                         B


       Probation ofOffenders Act, 1958-Section 18-Prevention ofCorruption
 Act, 198811947-Sections 1315(2)-General Clauses Act, 1897-Section 8-
 Code of Criminal Procedure, 1973-Section 360-Act of 1947 prohibiting C
 release ofconvict on probation-Old Act repealed by Act of 1988-Conviction
 and sentence under Act of 1988-Grant ofrelease on probation under section
 360 Cr.P.C.-Justification of-Held: In view of Section 8 of 1897 Act when
 an Act is repealed and re-enacted unless different intention is expressed by
 the legislature, reference to the repealed Act would be considered as reference
 to the provisions of re-enacted Act-On and from date of extension and D
 enforcement of the provisions of Probation Act to Delhi, powers under section
 562 of old Code repealed and replaced by Section 360, as such Section 360
 cannot be invoked or applied-Further, in view of Section 18 of 1958 Act
 making the. Probation Act inapplicable to Section 5(2) of 1947 Act which
 corresponds to Section 13 of 1988 Act, the principles enunciated under the
 Probation Act cannot be applied to conviction under Section 13(2) of 1988
                                                                                 E'
 Act-Interpretation of Statutes.

        Code of Criminal Procedure, 1973-Section 360-Prevention of
  Corruption Act, 1988-Sections 7 and 13(2)-0.lfence-Sentence under the
  sections-Sections providing for minimum sentence-Release on probation-       F
  Permissibility of-Held: Since the statute prescribes minimum sentence in         1




  addition to maximum sentence, the Court cannot show any leniency below
- the minimum sentence stipulated in such cases-Thus, grant of benefit of
  probation not permissible.
                                                                                   I
       Respondent-employee ofVidyut Board demanded and accepted bribe from G
 a consumer. Trial Court convicted the respondent under Section 7 of the
 Prevention of Corruption Act, 1988 and passed a sentence of 20 months .
 rigorous impl'.isonment and fine of Rs. 2000 with default stipulation; and also
 convicted under Section 13(2) and passed a sentence of 40 months rigorous
 imprisonment and fine'Of Rs. 2000 with default stipulation. Single Judge of
                                     ~l                                        H
    632                    SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A High Court upheld the convictions but extended him the ~nefit of release on
    probation under Section 360 of Cr.P.C., 1973 on the ground that the bar
    relating to the applicability of Probation of Offenders Act, 1958 was not
    operative in respect of offence under the 1988 Act though the old Act of 1947
    prohibited release of the convict on probation, and other extenuating
B   circumstances. Hence the present appeal.

          Appellant-State contended that the approach of High Court is clearly
    erroneous; that by operation of Section 8 of the General Clauses Act, 1897
    the bar to probation as contained in the Act of 1947 clearly applies to the Act
    of 1988; and that the statutory object cannot be diluted by indirectly reducing
C   the minimum sentence.

          Respondent-accused contended that in the absence of any bar in the Act,
    1988 for extending the benefits provisions of the said Act could have been
    applied; that Section 18 of the Probation Act stipulated that the Act was
    inapplicable to Section 5(2) of the old Act of 1947 which corresponds to
D   Section 13 of the Act of 1988 but no change was made in the Probation Act
    after the Act was enacted and brought into force in 1988, the provisions of
    the said Act cannot be applied to the cases under the 1988 Act; that the High
    Court rightly applied Section 360 of the Code by taking note of the
    extenuating circumstances; and that after long passage of time, it would nit
    be proper to send the accused back to jail.
E
          Allowing the appeal, the Court

          HELD: 1.1. The object of section 8 of the General Clauses Act, 1897, is
    that where any Act or Regulation is repealed and re-enacted, refe~ences in
    any other enactment to provisions of the repealed former enactment must be
F   read and construed as references to the re-enacted new provisions,.unless a
    different intention appears. [637-E-F)

          1.2. The references to Section 562 of Cr.P.C., 1898 in Section 19 of
    the Probation Act, 1958 and to Section 5(2) of Prevention of Corruption Act,
    1947 in Section 18of1958 Act respectively have to be inevitably read as
G   references to their corresponding provisions in the newly enacted Code and
    the Act. Consequently, for the conviction under Section 13(2) of Prevention
    of Corruption Act, 1988 the principles enunciated under the Probation Act
    cannot be extended at all in vie~ of Section 18 of the said Act making the Act
    inapplicable to Section 5(2) of the old Act of 1947 which corresponds to
H   Section 13 of the Act of 1988. With regard to Section 360 of Cr.P.C., 1973,
              STATE THROUGH S.P., NEW DELHI v. R.L. ARORA                  633
on and from the date of extension and enforcement of the provisions of the        A
Probation Act to Delhi, in view of Section 19 of the Probation Act that subject
to the provisions of section 18, Section 562 of Cr.P.C., 1898 shall cease to
apply to the States or part in which the Probation Act is brought into force
which came to be repealed and replaced by Section 360 ofCr.P.C., 1973,
Section 360 cannot be invoked or applied at all The view taken to the contra      B
is not legally sustainable and cannot be approved. (637-H; 638-A-C)

      Bishnu Deo Shaw v. State of West Bengal, AIR (1979) SC 964; /sher
Das v. The State of Punjab, AIR (1972) SC 1295; Som Nath Puri v. State of
Rajasthan, AIR (1972) SC 1490; New Central Jute Mills Co. Ltd v. The Asstt.
Collector ofCentral Excise, Allahabad and Ors., AIR (1971) SC 454 and State C
ofBihar v. S.K Roy, AIR (1966) SC 1995, referred to.

       1.3. Unlike the provisions contained in Section 5(2) proviso of the Old
Act of 1947 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 of 1988 did not carry any such power to enable the Court         D
concerned to show any leniency below the minimum sentence stipulated.
Single Judge of High Court erred in extending the benefit of probation even
under the Code. Though the reasons assigned by High Court to extend the
~nefits of probation may not be relevant, proper or special reasons for going
below the minimum sentence prescribed - which in any event is wholly
impermissible, it is taken into account to confine the sentence ofimprisonment    E
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. The levy of
fine with default clause by trial court is confirmed. (638-F-H; 639-A]

     N.M Parthasarathy v. State by S.P.E., [1992) 2 SCC 198 and Balaram F
Swain v. State of Orissa, (1991) Suppl. 1 SCC 510, held per incuriam.

     Superintendent Central Excise, Bangalore v. Bahuba/i, AIR (1979) SC
1271, relied on.

     State ofJ & K v. Vinay Nanda (2001) 2 SCC 504, referred to.
                                                                                  G
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 532
of2004.

      From the Judgment and Order dated 29 .10.2002 of the Delhi High Court
in Crl. A. No. 471 of 1999.
                                                                                  H
    634                     SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A        L.N. Rao, Additional Soliciter General, Amit Mahajan, Uday Lalit and P.
    Parmeswaran for the Appellant.

           M.N. Krishnamani and Ajay Sharma for the Respondent.

           The Judgment of the Court was delivered by
B
          ~, ARIJIT PASAYAT, J. Leave granted.

           By the impugned judgment a learned Single Judge of the De.lhi 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
C   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 .:

D          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 and 13(2) read
    with Section 13(l)(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
E   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
F   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
G   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.

H          Learned counsel for the appellant submitted that the approach of the
       STATE THROUGH S.P., NEW DELHI v. R.L. ARORA [PASAY AT, J.]             63 5
High Court is clearly erroneous. This Court has clearly held that where a             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 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       B
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.           C
Section 360 of the Code, no interference is called for while exercisingjurisdiction
under Article 136 of the Constitution oflndia, 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             D
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          E
Court in S. Natarajan v. State of Mysore, [1979] 4 SCC 542, in N.M
Parthasarathy v. State by S.P.E., [1992] 2 SCC 198 and in Balaram Swain v.
State of Orissa, [ 1991] suppl. I 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                  F
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              G
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                  H
    636                      SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A 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. 59199, the Special Judge Delhi convicted the respondent
B   under Section 7 of the Act and passed a sentence of 20 months riforous
    imprisonment in addition to the payment of a fine of Rs. 2,000 with a default
    stipulation. Further under Section 13(2) of the Act he was also convicted and
    sentenced to 40 months riforous imprisonment, in addition to the payment of
    a fine of Rs. 2,000 with a default stipulation. The ~!aim of the respondent for
C   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
D   retired during trial itself from service, (c) that he had turned 64 years of age,
    and (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.

E         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
F 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,
G · this Court ruled that Section 360 of the Code reenacts 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 Ole! Act.
    This Court in the decisions reported in !sher Das v. The State of Punjab AIR
H (1972) SC 1295 and Som Nath Puri v. State of Rajasthan, AIR (1972) SC 1490
           STATETHROU(JHS.P.,NEWDELHI v.R.L.ARORA(PASAYAT,J.]                   637
    has held specifically adverting to Section 18 that the said provision renders      A
    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            B
    Section 8 of the General Clauses Act which reads as under:

            "8. Construction of references to repealed enactments. [(I) 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      C
            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.

            ((2) [Where before the fifteenth day of August, 1947, any Act of
            Parliament of the United Kingdom repealed and re-enacted], with or D
            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
                                                                                       E
    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 F
    Central Jute Mills Co. Ltd v. The Astt. Collector ofCentral Excise, Allahabad
    and Ors., 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 v. 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 G
    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 (I) 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 H
    638                    SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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
B 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 a.'ld 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
C · 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
D   Of any other law for the time being in force. In the case of Superintendent
    Central Excise, Bangalore v. Bahuba/i, AIR (197~) SC 1271, while dealing
    with Rule l 26-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
E   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 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
F   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     r
                                                                                       }
    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.
G   Consequently, the learned Single Judge if! 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 which in
    any event is wholly impermissible, as held supra, we take them into account
H   to confine the sentence of imprisonment to the minimum of six months under
      STATE THROUGH S.P., NEW DELHI v. R.L. ARORA[PASAYAT, J.]         639
Section 7-and minimum of one year under Section 13(2) of the Act, both the    A
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     B
surrender to custody to undergo the remaining period of sentence.

NJ.                                                       Appeal allowed.