Holding

The act constitutes offences under both Section 7 and Section 13(2) read with 13(1)(d), but the offender may not be punished with a more severe sentence than the higher minimum prescribed, and the Probation Act and Section 360 CrPC cannot be extended to the conviction under Section 13(2).

Summary

A. Parthiban, a public servant, was convicted for demanding and receiving illegal gratification, an act that attracted charges under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The trial court sentenced him to six months' rigorous imprisonment with a fine of Rs.500 and one year’s rigorous imprisonment with a fine of Rs.1,000. The Madras High Court set aside the conviction under Section 13(2), confirmed the conviction under Section 7, and released the accused on probation under Section 360 of the CrPC, invoking the Probation of Offenders Act. On appeal, the Supreme Court held that the single act constituted offences under both sections, but the offender could not be punished with a harsher penalty than the minimum prescribed for either, so the appropriate punishment is one year (the higher minimum) running concurrently with six months, and that the Probation Act and Section 360 CrPC cannot be applied to the conviction under Section 13(2). Consequently, the High Court’s order granting probation was erroneous and the appeal was allowed.

Issues considered

Whether a single act of demanding and receiving illegal gratification can constitute offences under both Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
Whether the offender can be punished under both sections, i.e., whether double penalty is permissible.
Whether the Probation of Offenders Act, 1958 (Section 18) and Section 360 of the Code of Criminal Procedure, 1973 can be applied to offences under Section 13(2) of the Prevention of Corruption Act.
Whether the High Court erred in granting probation to the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 220, s. 360
General Clauses Act, 1897s. 8
Indian Penal Code, 1860s. 71
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 7
Probation of Offenders Act, 1958s. 18, s. 19

Subjects

corruptionPrevention of Corruption Actdouble punishmentprobationSection 360 CrPCSection 18 Probation Actconcurrent sentencescriminal procedure

Judgment

) THE STATE REP. BY INSPECTOR OF POLICE, PUDUKOTTAI, A
TAMILNADU
v.
A. PARTHIBAN

OCTOBER 9, 2006
B
[ARIJIT PASA YAT AND R. V. RA VEENDRAN, JJ.)

Prevention of Corruption Act, 1988: Sections 7 and 13(2) r/w Section
J3(l)(d).
c
Offences under Ss. 7 and 13(2) rlw S. 13(l)(d)-Conviction under-
Release on probation-Justifiability of-Accused convicted under S. 7 &
13(2) rlw S. J3(J)(d)-Accused was sentenced to undergo RI for six months
and to pay afine of Rs. 5001- for the earlier offence and RI for one year and
to pay a fine of Rs. 1, 0001- for the latter offence-High Court held that the D
conviction under S. 13(2) read with S. 13(/)(d) was n~t maintainable but
confirmed the conviction under S. 7-High Court further held that for a single
act it would not be proper to convict the accused under both the Sections-
Applying the provisions of S. 360 Cr.P.C. the accused was directed to be
released on probation-Correctness of-Held: Eve1y acceptance of illegal
gratification whether preceded by demand or not, would be covered by S. 7 E
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 S. J3(l)(d)
of the A ct-If an offence falls under both Ss. 7 and 13 ( 1)(d) and the court
wants to award only the minimum punishment, then the punishment would
be one year--..'iince the P.C. Act was enacted after the Probation Act, there F
is no scope for extending the benefit of the Probation Act to the accused-
Hence, the High Court erred in extending the benefit or probation to the
accused even under S. 360 Cr.P.C.-The sentences of imprisonment shall be
six months under S. 7 and one year under S. 13(2), both the sentences to run
concurrently-Probation of Offenders Act, 1988, S. 18-Code of Criminal
Procedure, 1973, S. 360. G
The respondent-accused was convicted for offences punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988. The respondent was sentenced to undergo RI for six months and

35 H
36 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A to pay a fine of Rs. 500/- for the earlier offence and RI for one year and to pay "
a fine of Rs. I, 000/- for the latter offence.

In appeal, the High Court held that the conviction under Section 13(2)
read with Section 13(1 )(d) of the Act was not maintainable but confirmed the
conviction under Section 7 of the Act. The High Court further held that for
B a single act it would not be proper to convict the accused under both the
Sections. Provisions of Section 360 of the Code of Criminal Procedure, 1973
were applied and the respondent was directed to be released on probation under
the Probation of Offenders Act, 1958. Hence the appeal.
..
The following question arose before the Court:-
c
Whether the alleged act is an offence and if the answer is in the
affirmative, whether it is capable of being constructed as an offence under
one or more provisions?

Allowing the appeal, the Court
D
HELD: 1.1. Every acceptance of illegal gratification whether preceded by
demand or not, would be covered by Section 7 of the Prevention of Corruption
Act, 1988. 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
E 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(I)(d) of the Act. The offence being a single transaction, but falling
under two different Sections, the offender cannot be made 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,
F cannot bean offence both under Section 7 and under Section 13(1)(d)ofthe 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 award to the person for any one of the two offences.
In this case, a minimum punishment under Section 7 is six months and the
G minimum punishment under Section 13(l)(d) is one year. If an offence falls under
both Sections 7 and 13(I)(d) and the court wants to award only the minimum
punishment, then the punishment would be one year. [41-B, C, D, E)

State of J & K v. Vinay Nand, [2001 [ 2, SCC 504 referred to.

2. Section 18 of the Probation of Offenders Act, 1958 stipulated that
H
STATE REP. BY INSPECTOR OF POLICE. PUDUKOTTAI, TAMIL NADU "·A. PARTHIBAN 37
)
the Act was inapplicable to offences punishable under Section 5(2) of the A
Prevention of Corruption Act, 1947 (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. 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 considered as reference to the provisions so re-enacted.
B
(41-G, 42-A, BJ

3. For 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 of Criminal Procedure, 1973 is concerned, on and from the date of
c
extension and enforcement of the provisions of the Probation Act to Madras,
powers under Section 562 of the Code of Criminal Procedure, 1898 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. [43-F, GI
D
-New Central Jute Mills Co. Ltd. v. Assistant Collector ofCentral Excise,
\ (1970) 2 sec 820, relied on.

Bishnu Dea Shawv. State of West Bengal, (1979) 3 SCC 714; /sher Das
v. State ofPunjab, (1973) 2 SCC 65 and Som Nath Puri v. State of Rajasthan,
(1972) 1 sec 630, referred to. E
4: In cases where a specific enactment, enacted after the Probation Act,
prescribes a minimum sentence of imprisonment, the provisions of the
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 speciaf enactment, there is no scope for extending the F
benefit of the Probation Act to the accused, Unlike the provisions contained
in Section 5(2) proviso of the Old Code 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 did not carry any such power to
enable the Court concerned to showny leniency below the minimum sentence G
stipulated. (44-A, B, CJ

State v. Rattan Lal Arora, [2004) 4 SCC 590, relied on.

Superintendent Central Excise v. Bahubali, (197912 SCC 279, referred
~ to.
L H
38 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A 5. Consequently, 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 month under Section 7 and one year under Section
13(2) of the Act, both the setences to run concurrently. (44-DI

CRIMINAL APPELLATE JURISDICTION : Criminal appeal No. 842 of
B 2003.
From the Final Order and Judgment and dated 28.3.2002 of the High
Court of Judicature at Madras in Crl. A.No. 659/1994.

Subramonium Prasad and V.G. Pragasam for the Appellant.
c
K. Sarada Devi for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. The State of Tamil Nadu is in appeal questioning
D 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(l)(d) of the
Prevention of Corruption Act, 1988 (in short 'the Act').

A brief reference to the factual aspects would suffice:
E
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. I,000/- with
F 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.659of1994 held that the conviction under Section 13(2)
read with Section 13(1)(d) of the Act was not maintainable and was accordingly
G 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(l)(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
H '
STATE REP. BY INSPECTOR OFPOLICE. PUDUKOTTAI. TAMI~ NADU "·A. PARTHIBAN [PASAYAT. J J 39

released on probation. A
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
I 3(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 I 3(1 )(d) of the Act. Additionally, provisions of Section 360 B
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, [200 I] 2 SCC 504. The severity of the offence and the chain C
reaction of any offence under the Act generated clearly make Section 360

... inapplicable. By operation of Section 8 of the General Clauses Act, I 897 (in
short the 'General Clauses Act'), the bar contained with reference to Section
5(2) of the Prevention of Corruption Act, I 947 (in short 'Old Act') clearly
applies with respect to Section 13(2) of the Act also. It was, therefore,
submitted that the High Court's order is clearly vulnerable. D
Learned counsel for the respondent submitted that though Section 7
and Section 13(2) read with Section 13(l)(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 I 3(2) read with Section 13( I)(d) of the
Act. It was further submitted that Section I 8 of Probation of Offenders Act, E
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 'l.P.C.') and, therefore, where the p
• 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').
G
The stand that respondent could not have been simultaneously
convicted for offences relatable to Section 7 and Section I 3(2) read with
Section 13(l)(d) of the Act, as held by the High Court is clearly unacceptable.
Section 71 !PC provides the complete answer. The same reads as follows:
..J
H
40 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A "71. Limit of punishment of offence made up of several offences. -
Where anything which is an offence is made up of parts, any of which
parts is itself an offence, the offender shall not be punished with the
punishment of more than one of such his offences, unless it be so
expressly provided.

B Where anything is an offence falling within two or more separate
definitions of any law in force for the time being by which offences
are defined or punished, or

where several acts, of which one or more than one would by itself
or themselves constitute an offence, constitute, when combined, a
C different offence,

the offender shall not be punished with a more severe punishment
than the court which tries him could award for any one of such
offences."

D The position is further crystalised in Section 220 of the Cr.P.C. Same
reads as follows:

"220. Trial for more than one offence.-{!) If, in one series of acts so
connected together as to form the same transaction, more offences
than one are committed by the same person, he may be charged with,
E and tried at one trial for, every such offence.

"(2) When a person charged with one or more offences of criminal
breach of trust or dishonest misappropriation of properly as provided
in sub-section (2) of section 212 or in sub-section (I) of section 219,
is accused of committing, for the purpose of facilitating or concealing
F the commission of that offence or those offences, one or more offences
of falsification of accounts, he may be charged with, and tried at one
trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two or more
separate definitions of any law in force for the time being by which
G offences are defined or punished, the person accused of them may be
charged with, and tried at one trial for, each of such offences.

(4) If several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute when combined a different
offence, the person accused of them may be charged with, and tried
H
STATE REP. BY INSPECTOR OF POLICE. PUDUKOTTAI, TAMIL NADU,.. A PARTHIBAN [\'ASAY AT. J.J 41

at one trial for the offence constituted by such acts when combine9, A
and for any offence constituted by any one, or more, or such acts.

(5) Nothing contained in this section shall affect section 71 of the
Indian Penal Code (45 of 1860)."

The crucial question is whether the alleged act is an offence and if the B
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.

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 C
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, D
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 E
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(l)(d) is one year. If an offence falls under both Sections 7 and
13(l)(d) and the court wants to award only the minimum punishment, then the
punishment would be one year.
F
It was next contended by the respondent that 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. G
Section 18 of the Probation Act stipulated that the Act was inapplicable to
offences punishable under Section 5(2) of 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. Much stress was laid on the non-amendment
H
42 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A of the Probation Act which referred to the old Act and not the present Ac:t.
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
B repealed Act would be considered as reference to the provisions so re-
enacted.

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
C Government may be notification in the official gazette appoint. In State of
Tamil Nadu it came into force in the entire State in the year 1964. Section 19
of that Act 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
D 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, (1979) 3 SCC
714, this Court ruled that Section 360 of the Code i.e. enacts in substance
Section 562 of the Old Code. That apart, Section 18 of the Probation Act inter-
alia stipulates that nothing in the said Act shall affect the provisions of Sub-
E section (2) of Section 5 of the Old Act. This Court in the decisions reported
in !sher Das v. The State of Punjab, (1973] 2 SCC 65 and Som Nath Puri v.
State of Rajasthan, (1972] I SCC 630, has held specifically adverting to
Section 18 that the said provision renders 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(2) of the re-enacted Act Is the corresponding
F provision to Section 5(2) of the Old Act.
The import 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 Section
8 of the General Clauses Act which reads as under:

G "8. Construction ofreferences 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
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
H
STATE REP. BY INSPECTOR OF POLICE, PUDUKOTTAI, TAMIL NADU ''·A. PARTHlllAN [PASAYAT, J 143
so re-enacted. A
(2) Where before the fifteenth day of August, 1947, any Act of
Parliament of the United Kingdom repealed and re-enacted], with or
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, B
be construed as references to the provision so re-enacted,]"

The object of the said provision, obvious and patently made known is
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 C
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
Central Jute Mills Co. Ltd v. The Ast/. Collector ofCentral Excise, Allahabad
and Ors., [1970] 2 SCC 820, this Court held it to be possible to read the
provisions of the Customs Act, 1962 in the place of Sea Customs Act, 1878 D
found mentioned in Section 12 of the Central Excise and Salt Act, 1944. In
State ofBihar 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
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 E
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
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. F
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 G
the Code, cannot be invoked or applied at all, as has been done in the case
on hand.

In the case of Superintendent Central Excise, Bangalore v. Bahubali,
[1979]2 SCC 279, while dealing with Rule 126-P (2)(ii) of the Defence oflndia
H
44 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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 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
B 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 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 the minimum sentence of one year therein for any "special reasons"
C 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.
These aspects were highlighted in State through SP, New Delhi v. Ratan Lal
Arora, [2004] 4 SCC 590.

Consequently, the learned Single Judge in the High Court committed a
D 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
E unaffected and are hereby confirmed.
The appeal is accordingly allowed.

v.s.s. Appeal allowed.