A.B.Bhaskara Rao vs Inspector Of Police,Cbi Vishakpatnam

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.

1 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

6

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.

8 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.

9 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

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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.

1 (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.

2 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.

2 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.

2 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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