REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 650 OF 2008
A.B. Bhaskara Rao .... Appellant(s)
Versus
Inspector of Police, CBI Visakhapatnam .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This appeal is directed against the final judgment and
order dated 03.10.2007 passed by the High Court of
Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal
No. 436 of 2001 whereby the High Court dismissed the appeal
filed by the appellant herein and confirmed the judgment
dated 19.03.2001 passed by the Special Judge, C.B.I. Cases,
Visakhapatnam in C.C. No.2 of 1998.
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2) Brief facts:
(a) The appellant-accused was working as a Head Clerk in the
Traffic Cadre Section in the Office of the Senior Divisional
Personnel Officer, South Central Railway, Vijayawada during
the period from April, 1992 to November, 1997. The nature of
duties of the appellant-accused included dealing with and
processing of the matters like promotions, transfers, seniority
list, roster list, pay fixation on promotions, retirements,
resignations etc. of the personnel.
b) One K. Rama Rao-the Complainant, who was examined as
PW-1, was posted as Yard Points Man, Grade `A' under Station
Superintendent, South Central Railway, Tanuku from
December, 1995 to June, 1997. In June, 1997, due to excess
staff at Tanuku, he was instructed to report at Head Quarters,
Vijayawada and accordingly, when he reported there, he was
asked to go back to Tanuku. Thereafter, he went back to
Tanuku from where he was subsequently transferred to
Rajahmundry. Thereafter, PW-1 made a representation to his
senior officer requesting him for posting at Vijayawada,
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Cheerala, Vetapalam or Tenali. Later, PW-1 was transferred to
Vijayawada.
(c) As the appellant-accused was dealing with the transfers,
the complainant (PW-1) met him on 05.11.1997 at his office to
pursue about the issuance of the said transfer order. The
appellant-accused asked him to come on 10.11.1997. When
he met him on 10.11.1997, the appellant asked him to come
on the next day as he was busy in pay-fixation work. On
11.11.1997, again he went to the office of the appellant but he
could not find him on his seat. Again a day after i.e. on
13.11.1997, when he met the appellant-accused, he informed
him that his request for transfer has been processed and the
order is ready and the same has been placed before the A.P.O.
for signature and asked him to come on the next day, i.e., on
14.11.1997, and demanded Rs.200/- for releasing the said
office order.
(d) On the same day, (PW-1) reported the matter in writing to
the Inspector of Police, Central Bureau of Investigation (in
short `the CBI), Vijayawada. On 14.11.1997, a trap was laid
by the CBI officials along with panchas and when the accused
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demanded and accepted a sum of Rs.200/- as illegal
gratification, he was caught red handed along with the money
which was recovered from the right hand side pocket of his
pant.
(e) On 15.11.1997, at 7.30 a.m., an FIR was registered by
the Inspector, CBI, Visakhapatnam Branch in Crime No. RC
20(A)/97-VSP. After recording the statements of the
witnesses, Inspector of Police, CBI, Visakhapatnam filed
charge sheet being No. 2/98-YTR dated 29.04.1998 against
the appellant-accused for an offence punishable under
Sections 7, 13(1)(d)(ii) read with Section 13(2) of the Prevention
of Corruption Act, 1988 (hereinafter referred to as "the Act") in
the Court of Special Judge for CBI Cases at Visakhapatnam.
(f) The Special Judge, CBI, by order dated 19.03.2001,
convicted the appellant and sentenced him to undergo
rigorous imprisonment for a period of six months and to pay a
fine of Rs.500/- and, in default, to suffer simple imprisonment
for one month for the offence punishable under Section 7 of
the Act and one year rigorous imprisonment with a fine of
Rs.500/- and, in default, to suffer simple imprisonment for
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one month for the offence punishable under Sections 13(1)(d)
(ii) read with Section 13(2) of the Act.
(g) Against the said order, the appellant-accused filed
Criminal Appeal No. 436 of 2001 before the High Court of
Andhra Pradesh. The High Court, by impugned judgment
dated 03.10.2007 dismissed the appeal filed by the appellant-
accused and confirmed the conviction passed by the trial
Court. Hence, the appellant-accused has preferred this
appeal by way of special leave petition before this Court.
3) Heard Mr. ATM Rangaramanujam, learned senior counsel
for the appellant and Mr. Harish Chandra, learned senior
counsel for the respondent.
Notice only on quantum of sentence-hearing on all
aspects-Permissibility:
4) On 28.01.2008, this Court consisting of three Hon'ble
Judges issued notice in this matter confining to the quantum
of sentence only. In pursuance of the same, we permitted Mr.
Rangaramanujam, learned senior counsel for the appellant to
address his arguments confining to quantum of sentence
imposed on the appellant-accused. As stated in the narration
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of facts, the appellant was convicted under Section 7 of the Act
for which he was sentenced to undergo rigorous imprisonment
for six months and to pay a fine of Rs. 500/-, in default,
simple imprisonment for one month. He was also convicted
for the offence under Section 13(1)(d)(ii) read with Section
13(2) of the Act and sentenced to undergo rigorous
imprisonment for one year and fine of Rs.500/-, in default,
simple imprisonment for one month. The trial Court ordered
that both the sentences of imprisonment shall run
concurrently. The said conviction and sentence was affirmed
by the High Court. If we confine ourselves to the limited
extent of notice dated 28.01.2008, we have to hear both sides
only on the quantum of sentence. However, Mr.
Rangaramanujam, learned senior counsel for the appellant by
drawing our attention to the recent judgment of this Court in
Yomeshbhai Pranshankar Bhatt vs. State of Gujarat,
(2011) 6 SCC 312, submitted that in spite of limited notice,
this Court, while exercising jurisdiction under Article 142 of
the Constitution, in order to do complete justice while hearing
the matter finally can go into the merits of the orders passed
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by the trial Court and the High Court. In the reported case,
the appeal was against the concurrent finding of both the
courts convicting the appellant under Section 302 IPC and
sentencing him to suffer imprisonment for life. At the SLP
stage, this Court, by order dated 27.07.2009, issued notice
confined only to the question as to whether the petitioner was
guilty of commission of an offence under any of the parts of
Section 304 Indian Penal Code, 1860 (in short `IPC') and not
under Section 302 IPC. Similar request was made before the
Bench that the appellant was entitled to urge all the questions
including his right to urge that he should have been acquitted
in the facts and circumstances of the case. This Court,
referred to the Supreme Court Rules, 1966 which have been
framed under Article 145 of the Constitution and also
considered scope of its power under Article 142 as well as
Order 47 Rule 6 of the Code of Civil Procedure, 1908 (in short
`the Code). While deciding the said question, the Bench has
also considered the scope of Section 100 of the Code for
entertaining the second appeal. It further shows that the
Court considered the plea of the appellant therein for acquittal
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despite the fact that the notice was limited in terms of the
order dated 27.07.2009. It is relevant to point out that the
Bench in para 15, clarified the position and reopened the case
in its entirety even though notice was issued confining to a
particular aspect. After permitting the appellant therein to
argue the case for acquittal on merits, it observed:
"15. ... .... We, however, make it clear that this cannot be a
universal practice in all cases. The question whether the
Court will enlarge the scope of its inquiry at the time of final
hearing depends on the facts and circumstances of the case.
Since in the facts of this case, we find that the appellant
should be heard on all points, we have come to the aforesaid
conclusion."
(Emphasis supplied)
It is clear that the Bench itself has clarified that they are not
laying down the law that in spite of issuing notice confining to
a particular aspect (in the case on hand - "quantum of
sentence") the parties are entitled to urge all points and re-
open the case as if they are free to do the same without any
restriction. As a matter of fact, the last sentence in para 15
makes it clear that in the facts and circumstances of that
case, they permitted the appellants to urge all points on
merits.
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5) In the case on hand, it is to be noted that on appreciation
of oral and documentary evidence led in by the prosecution
and the defence and on appreciation of entire materials, the
court of first instance i.e. the trial Court convicted the
appellant and sentenced him as mentioned above. The High
Court, as an appellate Court, once again analysed all the
material, discussed the oral and documentary evidence and
finding that the prosecution had proved the guilt of the
accused beyond reasonable doubt concurred with the
conclusion arrived at by the trial Court and dismissed the
appeal of the appellant. Inasmuch as both the courts have
thoroughly discussed the oral and documentary evidence with
reference to the charges leveled against the appellant and in
view of the limited order dated 28.01.2008 by this Court
issuing notice confining to quantum of sentence only and even
applying the analogy enunciated in Yomeshbhai (supra), we
feel that it is not a case of such nature that the appellant
should be heard on all points, consequently, we reject the
request of the learned senior counsel appearing for the
appellant.
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Quantum of sentence/Whether requires any reduction:
6) Mr. Rangaramanujam, learned senior counsel for the
appellant submitted that inasmuch as the alleged incident
took place on 14.11.1997 and 14 years have elapsed since
then, the amount of Rs. 200/- said to have been received by
the appellant is trivial in nature and also of the fact that due
to the said conviction and sentence he lost his job, leniency
may be shown and sentence be reduced to the period already
undergone. He fairly admitted that out of the maximum
period of one year, the appellant had served only 52 days in
prison. With this factual position, let us consider whether the
request of the learned senior counsel for the appellant is to be
accepted and sentence be reduced to the period already
undergone.
7) It is not in dispute that the provisions of the Prevention
of Corruption Act, 1988 alone are applicable since the incident
occurred on 14.11.1997 i.e. subsequent to the Act. Section 7
of the Act relates to public servant taking gratification other
than legal remuneration in respect of an official act. If the
said offence/charge is proved, the court has no other option
1
but to impose sentence of imprisonment which shall be not
less than six months but which may extend to five years and
also liable to fine. The said section reads as under:-
"7. Public servant taking gratification other than legal
remuneration in respect of an official act.- Whoever,
being, or expecting to be a public servant, accepts or obtains
or agrees to accept or attempts to obtain from any person,
for himself or for any other person, any gratification
whatever, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act or for
showing or forbearing to show, in the exercise of his official
functions, favour or disfavor to any person or for rendering
or attempting to render any service or disservice to any
person, with the Central Government or any State
Government or Parliament or the Legislature of any State or
with any local authority, corporation or Government
company referred to in Clause (c) of Section 2, or with any
public servant, whether named or otherwise shall, be
punishable with imprisonment which shall be not less than
six months but which may extend to five years and shall also
be liable to fine. ... ....."
(Emphasis supplied)
8) Section 13 deals with criminal misconduct by a public
servant. As per sub-section (2) if any public servant commits
criminal misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but which
may extend to seven years and shall also be liable to fine. For
clarity, we reproduce the said section hereunder:
"13. Criminal misconduct by a public servant.- (1) A
public servant is said to commit the offence of criminal
misconduct,
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(a) If he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any
other person any gratification other than legal remuneration
as a motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or
attempts to obtain for himself or for any other person, any
valuable thing without consideration or for a consideration
which he knows to be inadequate from any person whom he
knows to have been, or to be, or to be likely to he concerned
in any proceeding or business transacted or about to be
transacted by him or having any connection with the official
functions of himself or of any public servant to whom he is
subordinate, or from any, person whom he knows to be
interests in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any
other person so to do; or
(d) If he, -
(i) By corrupt or illegal means, obtains for himself or for any
other person any valuable thing or Pecuniary advantage; or
(ii) By abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) While holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without
any public interest; or
(e) If he or any person on his behalf, is in possession or has,
at any time during the Period of his office, been in
possession for which the public servant cannot satisfactorily
account, of pecuniary resources or property disproportionate
to his known sources of income.
Explanation. -For the purposes of this section "known
sources of income" means income received from any lawful
source and such receipt has been intimated in accordance,
with the provisions of any law, rules or orders for the time
being applicable to public servant.
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(2) Any public servant who commits criminal misconduct
shall be punishable with imprisonment for a term which
shall be not less than one year but which may extend to
seven years and shall also be liable to fine."
(Emphasis supplied)
9) It is useful to refer that in the Prevention of Corruption
Act, 1947 the same "criminal misconduct" which is available
in Section 13 of the 1988 Act had been dealt with in Section 5
of the 1947 Act. Section 5(2) of the 1947 Act mandates that
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 to seven years and
shall also be liable to fine. However, proviso to sub-section (2)
of Section 5 gives power to the court that for any special
reasons to be recorded in writing, impose a sentence of
imprisonment of less than one year. Such relaxation in the
form of a proviso has been done away with in the 1988 Act. To
put it clear, in the 1988 Act, if an offence under Section 7 is
proved, the same is punishable with imprisonment which shall
be not less than six months and in the case of Section 13, it
shall not be less than one year. No other interpretation is
permissible.
1
Other circumstances pleaded for reduction of sentence:
10) In order to substantiate the claim with the regard to the
above, learned senior counsel for the appellant has relied on
the decision of this Court in Bechaarbhai S. Prajapati vs.
State of Gujarat, (2008) 11 SCC 163 and based on the same
requested this Court to modify the sentence to the extent of
period already undergone. We have gone through the facts in
that case. It is true that even in the cited decision, the
appellant accused demanded only Rs. 250/- and it was paid
and accepted. Finally, the Special Judge framed charges for
offence punishable under Sections 7, 12, 13(1)(d) read with
Section 13(2) of the Act. The appellant therein was convicted
for offence under Section 7(2) of the Act and appeal before the
High Court was also dismissed. Thereafter, the same was
challenged before this Court. This Court, after holding that
the conclusion of the trial Court and High Court does not
suffer from any infirmity considered the alternative
submission which related to harshness of sentence. In that
case, taking note of the fact that the occurrence took place
nearly seven years back and also of the fact that the appellant
1
had suffered custody for more than six months, considering all
these aspects, while maintaining the conviction, this Court
reduced the sentence to the period already undergone. Since
the appellant therein was convicted only under Section 7 and
Section 161 Cr.PC., the minimum sentence being six months
and of the fact that he had suffered custody for more than six
months, the course adopted by this Court is perfectly in order
and the same cannot be applied to the case on hand, wherein
the appellant had undergone only 52 days when the minimum
sentence was six months under Section 7 and one year under
Section 13.
11) Learned senior counsel for the appellant further
submitted that inasmuch as the incident had occurred on
14.11.1997 and the trial Court has convicted him on
19.03.2001 which was affirmed by the High Court on
03.10.2007, at this juncture, i.e., after a gap of 14 years, there
is no need to retain the same sentence and the Court is not
justified in directing the appellant to serve the remaining
period after such a long time. There is no dispute as regards
the date of occurrence and the date of conviction passed by
1
the trial court and affirmed by the High Court. Inasmuch as
the conviction on both counts have been confirmed by this
Court and we are confined to sentence part alone and in view
of the minimum sentence prescribed under Sections 7 and 13
of the Act, we are of the view that though long delay may be a
ground for reduction of sentence in other cases, the same may
not be applicable to the case on hand when the statute
prescribes minimum sentence. Accordingly, we reject the said
contention.
12) It was further contended that the amount alleged to have
been received by the appellant accused is only Rs.200/- and
he also lost his job after conviction by the trial court. Though,
these grounds may be attractive in respect of other offences
where minimum sentence is not prescribed, in view of our
reasonings in the earlier paras, the same cannot be applied to
the case on hand.
13) About the request based on delay that the appellant has
lost his job, undergone the ordeal all along etc. a lenient view
be taken in this case, it is useful to refer decision of this Court
1
in State of M.P. vs. Shambhu Dayal Nagar, (2006) 8 SCC
693 wherein it was held that:
"32. It is difficult to accept the prayer of the respondent that
a lenient view be taken in this case. The corruption by public
servants has become a gigantic problem. It has spread
everywhere. No facet of public activity has been left
unaffected by the stink of corruption. It has deep and
pervasive impact on the functioning of the entire country.
Large-scale corruption retards the nation-building activities
and everyone has to suffer on that count. As has been aptly
observed in Swatantar Singh v. State of Haryana, (1997) 4
SCC 14, corruption is corroding, like cancerous lymph
nodes, the vital veins of the body politics, social fabric of
efficiency in the public service and demoralising the honest
officers. The efficiency in public service would improve only
when the public servant devotes his sincere attention and
does the duty diligently, truthfully, honestly and devotes
himself assiduously to the performance of the duties of his
post. The reputation of corrupt would gather thick and
unchaseable clouds around the conduct of the officer and
gain notoriety much faster than the smoke.
Article 142 and its applicability
14) By drawing our attention to Article 142 of the
Constitution of India, learned senior counsel for the appellant
vehemently submitted that in order to do complete justice, this
Court has ample power to reduce the sentence even to the
extent of period already undergone or any other order which
would be beneficial to the parties approaching this Court.
Similar claim based on Article 142 has been negatived in
1
several decisions by this Court, we need to refer only the latest
decision of this Court in Manish Goel vs. Rohini Goel, (2010)
4 SCC 393. The facts in that case are that the parties by
persuasion of the family members and friends, entered into a
compromise and prepared a memorandum of understanding
dated 13.11.2009, in the proceedings pending before the
Mediation Centre, Delhi, by which they agreed on terms and
conditions incorporated therein, to settle all their disputes and
also for dissolution of their marriage. The parties filed an
application under Section 13-B(1) of the Hindu Marriage Act,
1955 before the Family Court, Delhi seeking divorce by mutual
consent. The said HMA No. 456 of 2009 came before the court
and it recorded the statement of parties on 16.11.2009. The
parties moved another HMA No. 457 of 2009 to waive the
statutory period of six months in filing the second petition.
However, the court rejected the said application vide order
dated 01.12.2009 observing that the court was not competent
to waive the required statutory period of six months under the
Act and such a waiver was permissible only under the
directions of the Supreme Court as held by this Court in Anil
1
Kumar Jain vs. Maya Jain, (2009) 10 SCC 415. Hence the
parties have approached this Court for appropriate relief.
Speaking for the Bench one of us - (Dr. Justice B.S. Chauhan)
referred to more than fifty decisions including the Constitution
Bench judgments. The relevant paras, which are useful, may
be quoted:
"11. We are fully alive of the fact that this Court has been
exercising the power under Article 142 of the Constitution
for dissolution of marriage where the Court finds that
marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts
of the case do not provide a ground in law on which the
divorce could be granted. Decree of divorce has been granted
to put quietus to all litigations between the parties and to
save them from further agony, as it is evident from the
judgments in Romesh Chander v. Savitri (1995) 2 SCC 7,
Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90, Anita
Sabharwal v. Anil Sabharwal (1997) 11 SCC 490, Ashok
Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226, Kiran v.
Sharad Dutt (2000) 10 SCC 243, Swati Verma v. Rajan Verma
(2004) 1 SCC 123, Harpit Singh Anand v. State of W.B. (2004)
10 SCC 505, Jimmy Sudarshan Purohit v. Sudarshan Sharad
Purohit (2005) 13 SCC 410, Durga Prasanna Tripathy v.
Arundhati Tripathy (2005) 7 SCC 353, Naveen Kohli v. Neelu
Kohli (2006) 4 SCC 558, Sanghamitra Ghosh v. Kajal Kumar
Ghosh (2007) 2 SCC 220, Rishikesh Sharma v. Saroj Sharma
(2007) 2 SCC 263, Samar Ghosh v. Jaya Ghosh (2007) 4 SCC
511 and Satish Sitole v. Ganga (2008) 7 SCC 734. However,
these are the cases, where this Court came to rescue the
parties on the ground for divorce not provided for by the
legislature in the statute.
12. In Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194,
this Court while allowing a transfer petition directed the
court concerned to decide the case of divorce by mutual
consent, ignoring the statutory requirement of moving the
1
motion after expiry of the period of six months under Section
13-B(2) of the Act. In Anil Kumar Jain, this Court held that
an order of waiving the statutory requirements can be
passed only by this Court in exercise of its powers under
Article 142 of the Constitution. The said power is not vested
with any other court.
13. However, we have also noticed various judgments of this
Court taking a contrary view to the effect that in case the
legal ground for grant of divorce is missing, exercising such
power tantamounts to legislation and thus transgression of
the powers of the legislature, which is not permissible in law
(vide Chetan Dass v. Kamla Devi (2001) 4 SCC 250 and
Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379).
14. Generally, no court has competence to issue a direction
contrary to law nor can the court direct an authority to act
in contravention of the statutory provisions. The courts are
meant to enforce the rule of law and not to pass the orders
or directions which are contrary to what has been injected
by law. (Vide State of Punjab v. Renuka Singla (1996) 8 SCC
90, State of U.P. v. Harish Chandra (1996) 9 SCC 309, Union
of India v. Kirloskar Pneumatic Co. Ltd (1996) 4 SCC 453.,
University of Allahabad v. Dr. Anand Prakash Mishra (1997)
10 SCC 264 and Karnataka SRTC v. Ashrafulla Khan (2002)
2 SCC 560.)
15. A Constitution Bench of this Court in Prem Chand Garg
v. Excise Commr. AIR 1963 SC 996 held as under: (AIR p.
1002, para 12)
"12. ... An order which this Court can make in order to do
complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the
substantive provisions of the relevant statutory laws ."
(emphasis supplied)
The Constitution Benches of this Court in Supreme Court
Bar Assn. v. Union of India (1998) 4 SCC 409 and E.S.P.
Rajaram v. Union of India (2001) 2 SCC 186 held that under
Article 142 of the Constitution, this Court cannot altogether
ignore the substantive provisions of a statute and pass
orders concerning an issue which can be settled only
through a mechanism prescribed in another statute. It is not
2
to be exercised in a case where there is no basis in law
which can form an edifice for building up a superstructure.
16. Similar view has been reiterated in A.R. Antulay v. R.S.
Nayak (1988) 2 SCC 602, Bonkya v. State of Maharashtra
(1995) 6 SCC 447, Common Cause v. Union of India (1999) 6
SCC 667, M.S. Ahlawat v. State of Haryana (2000) 1 SCC
278, M.C. Mehta v. Kamal Nath (2000) 6 SCC 213, State of
Punjab v. Rajesh Syal (2002) 8 SCC 158, Govt. of W.B. v.
Tarun K. Roy (2004) 1 SCC 347, Textile Labour Assn. v.
Official Liquidator (2004) 9 SCC 741, State of Karnataka v.
Ameerbi (2007) 11 SCC 681, Union of India v. Shardindu
(2007) 6 SCC 276 and Bharat Sewa Sansthan v. U.P.
Electronics Corpn. Ltd. (2007) 7 SCC 737.
17. In Teri Oat Estates (P) Ltd. v. UT, Chandigarh (2004) 2
SCC 130 this Court held as under: (SCC p. 144, para 36)
"36. ... sympathy or sentiment by itself cannot be a ground
for passing an order in relation whereto the appellants
miserably fail to establish a legal right. ... despite an
extraordinary constitutional jurisdiction contained in Article
142 of the Constitution of India, this Court ordinarily would
not pass an order which would be in contravention of a
statutory provision."
18. In Laxmidas Morarji v. Behrose Darab Madan (2009) 10
SCC 425, while dealing with the provisions of Article 142 of
the Constitution, this Court has held as under: (SCC p. 433,
para 25)
"25. ... The power under Article 142 of the Constitution is a
constitutional power and hence, not restricted by statutory
enactments. Though the Supreme Court would not pass any
order under Article 142 of the Constitution which would
amount to supplanting substantive law applicable or
ignoring express statutory provisions dealing with the
subject, at the same time these constitutional powers cannot
in any way, be controlled by any statutory provisions.
However, it is to be made clear that this power cannot be
used to supplant the law applicable to the case. This means
that acting under Article 142, the Supreme Court cannot pass
an order or grant relief which is totally inconsistent or goes
against the substantive or statutory enactments pertaining to
the case. The power is to be used sparingly in cases which
cannot be effectively and appropriately tackled by the
2
existing provisions of law or when the existing provisions of
law cannot bring about complete justice between the
parties."
(Emphasis added)
After elaborately discussing almost all the case laws on this
subject about jurisdiction of this Court under Article 142, in
para 19, summarised the same in the following words:
19. Therefore, the law in this regard can be summarised to
the effect that in exercise of the power under Article 142 of
the Constitution, this Court generally does not pass an order
in contravention of or ignoring the statutory provisions nor is
the power exercised merely on sympathy.
After saying so, the Court rejected the request of the parties to
waive the statutory period of six months under the Act.
15) In Mota Ram vs. State of Haryana, (2009) 12 SCC 727,
this Court, while reiterating the above principles has
concluded that Article 142 cannot be exercised to negate the
statutory provisions.
16) In Academy of Nutrition Improvement and Others vs.
Union of India, JT 2011 (8) SC 16, the following conclusion
about the applicability of Article 142 is relevant:
28. The question is having held that Rule 44I to be invalid,
whether we can permit the continuation of the ban on sale of
non-iodised salt for human consumption for any period.
Article 142 of the Constitution vests unfettered independent
2
jurisdiction to pass any order in public interest to do
complete justice, if exercise of such jurisdiction is not be
contrary to any express provision of law. In Supreme Court
Bar Association v. Union of India: 1998 (4) SCC 409, this
Court observed:
The Supreme Court in exercise of its jurisdiction under
Article 142 has the power to make such order as is
necessary for doing complete justice "between the parties in
any cause or matter pending before it". The very nature of
the power must lead the court to set limits for itself within
which to exercise those powers and ordinarily it cannot
disregard a statutory provision governing a subject, except
perhaps to balance the equities between the conflicting
claims of the litigating parties by "ironing out the creases" in
a cause or matter before it. Indeed this Court is not a court
of restricted jurisdiction of only dispute settling. It is well
recognised and established that this Court has always been
a law maker and its role travels beyond merely dispute
settling. It is a "problem solver in the nebulous areas". (See.
K. Veeraswami v. Union of India : 1991 (3) SCC 655, but the
substantive statutory provisions dealing with the subject
matter of a given case, cannot be altogether ignored by this
Court, while making an order under Article 142. Indeed,
these constitutional powers can not, in any way, be
controlled by any statutory provisions but at the same time
these powers are not meant to be exercised when their
exercise may come directly in conflict with what has been
expressly provided for in statute dealing expressly with the
subject.
In Kalyan Chandra Sarkar v. Rajesh Ranjan : 2005 (3) SCC
284, this Court after reiterating that this Court in exercise of
its jurisdiction under Article 142 of the Constitution would
not pass any order which would amount to supplanting
substantive law applicable to the case or ignoring express
statutory provisions dealing with the subject, observed as
follows:
It may therefore be understood that the plenary powers of
this Court under Article 142 of the Constitution are inherent
in the Court and are complementary to those powers which
are specifically conferred on the Court by various statutes
though are not limited by those statutes . These powers also
exist independent of the statutes with a view to do complete
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justice between the parties...and are in the nature of
supplementary powers...[and] may be put on a different and
perhaps even wider footing than ordinary inherent powers of
a court to prevent injustice. The advantage that is derived
from a constitutional provision couched in such a wide
compass is that it prevents 'clogging or obstruction of the
stream of justice. See: Supreme Court Bar Association (supra)
17) Though the jurisdiction of this Court, under Article 142
of the Constitution of India is not in dispute, we make it clear
that exercise of such power would, however, depend on the
facts and circumstances of each case. The High Court, in
exercise of its jurisdiction, under Section 482 of the Criminal
Procedure Code and this Court, under Article 142 of the
Constitution, would not ordinarily direct quashing of a case
involving crime against the society particularly, when both the
trial Court as also the High Court have found that the charge
leveled against the appellant under the Act has been made out
and proved by the prosecution by placing acceptable evidence.
18) Finally, learned senior counsel for the appellant has cited
certain orders of this Court wherein this Court has reduced
the period of sentence already undergone while upholding the
conviction. We have perused those orders. The orders do not
disclose any factual details and the relevant provisions under
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which the accused was charged/convicted and minimum
sentence, if any, as available in the Act as well as the period
already undergone. In the absence of such details, we are
unable to rely on those orders.
19) From the analysis of the above decisions and the
concerned provisions with which we are concerned, the
following principles emerge:
a) When the Court issues notice confining to particular
aspect/sentence, arguments will be heard only to that
extent unless some extraordinary circumstance/material
is shown to the Court for arguing the matter on all
aspects.
b) Long delay in disposal of appeal or any other factor
may not be a ground for reduction of sentence,
particularly, when the statute prescribes minimum
sentence. In other cases where no such minimum
sentence is prescribed, it is open to the Court to consider
the delay and its effect and the ultimate decision.
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c) In a case of corruption by public servant, quantum of
amount is immaterial. Ultimately it depends upon the
conduct of the delinquent and the proof regarding
demand and acceptance established by the prosecution.
d) Merely because the delinquent lost his job due to
conviction under the Act may not be a mitigating
circumstance for reduction of sentence, particularly,
when the Statute prescribes minimum sentence.
e) Though Article 142 of the Constitution gives wider
power to this Court, waiver of certain period as
prescribed in the Statute imposing lesser sentence than
the minimum prescribed is not permissible.
f) An order, which this Court can make in order to do
complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the
Constitution, but also it cannot even be inconsistent with
the substantive provisions of the relevant Statute. In
other words, this Court cannot altogether ignore the
substantive provisions of a Statute.
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g) In exercise of the power under Article 142 of the
Constitution, this Court generally does not pass an order
in contravention of or ignoring the statutory provisions
nor is the power exercised merely on sympathy.
h) The power under Article 142 of the Constitution is a
constitutional power and not restricted by statutory
enactments. However, this Court would not pass any
order under Article 142 which would amount to supplant
the substantive law applicable or ignoring statutory
provisions dealing with the subject. In other words,
acting under Article 142, this Court cannot pass an order
or grant relief which is totally inconsistent or goes
against the substantive or statutory enactments
pertaining to the case.
i) The powers under Article 142 are not meant to be
exercised when their exercise may come directly in
conflict with what has been expressly provided for in
statute dealing expressly with the subject.
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20) In the light of the above discussion, we are unable to
accept any of the contentions raised by the learned senior
counsel for the appellant, on the other hand, we are in entire
agreement with the conclusion arrived at by the trial Judge as
affirmed by the High Court. Consequently, the appeal fails
and the same is dismissed. Since the appellant is on bail, the
bail bonds executed by him stand cancelled. The trial Judge
is directed to secure his presence for serving the remaining
period of sentence.
..........................................J.
(P. SATHASIVAM)
...........................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
SEPTEMBER 23, 2011
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