State of Kerala represented by the Superintendent of VACB, Idukki v. K. Vijayan Nair and B. Rajagopal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** **CRL.A.No.410 OF 2005(B)** **AGAINST THE ORDER/JUDGMENT IN CC 23/1999 DATED 07-01-2002 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUPERINTENDENT OF POLICE VACB, IDUKKI.** **PUBLIC PROSECUTOR SMT.K.B.SONY** ## **RESPONDENT/ACCUSED:** **1 K.VIJAYAN NAIR FORMER ASSISTANT DIRECTOR OF AGRICULTURE, THODUPUZHA. (DIED) 2 B.RAJAGOPAL FORMER ASSISTANT MANAGER K.S.H.P.D.C., MUNNAR. BY SRI.MAHESH BHANU.S. BY ADV. SRI.ANIL K.MOHAMMED BY ADV. SRI.R.ANIL BY ADV. SRI.DELVIN JACOB MATHEWS BY ADV. SRI.GEORGE PHILIP BY ADV. SRI.B.RAMAN PILLAI BY ADV. SRI.RAJU RADHAKRISHNAN BY ADV. SRI.R.SUDHIR** ## **OTHER PRESENT:** **PP SMT.K.B SONY** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2020, THE COURT ON 24-09-2020 DELIVERED THE FOLLOWING:** Crl.Appeal.No.410/2005 2 **==> picture [63 x 11] intentionally omitted <==** ## Dated this the 24[th] day of September, 2020 ## **JUDGMENT** State of Kerala represented by the Superintendent of VACB, aggrieved by the judgment of the Enquiry Commissioner and Special Judge, Thrissur in C.C.No.23 of 1999, arising from V.C.No.5 of 1997 of VACB, Idukki has preferred this appeal. 2. First and second accused faced trial before the court below for offences punishable under sections 13(1)(c) and (d) r/w 13(2) of Prevention of Corruption Act, 1988 and under sections 409, 468, 471, 477A and 120B of IPC. The case of the prosecution in a nutshell was that, first accused while working as the Assistant Director of Agriculture, Thodupuzha and the second accused while working as the Assistant Manager of the Kerala State Horticultural Produce Development Corporation Limited, Munnar, entered into a criminal conspiracy to forge receipts and to use the photocopies of false receipts as genuine documents to misappropriate a sum of Rs.61,507.88/- by not supplying full quantity of seedlings distributed under the Western Ghat Development Programme (WGDP). Crime was registered, investigation was conducted and final report was laid. Accused denied the charges and evidence was adduced by the prosecution and defence. On the basis of Crl.Appeal.No.410/2005 3 the available evidence, the court below found the first accused guilty of offences punishable under sections 13(1)(c) and (d) r/w 13(2) of Prevention of Corruption Act, 1988 and under sections 409, 468, 471, 477A of IPC. Accordingly, sentences for varying periods were imposed on him. Second accused was found guilty of offence under section 465 IPC alone and was convicted. However, invoking section 3 of the Probation of Offenders Act, 1958 he was released on probation after admonition. 3. Aggrieved by the judgment, conviction and sentence, State has preferred this appeal, essentially contending that, the sentence imposed on the first accused was not commensurate with the seriousness of the guilt established and that the order of the court below releasing the second accused on probation was not proper. 4. Heard both sides and examined the records. 5. It is seen from the records that the first accused had challenged his conviction and sentence in Crl.Appeal.No.37 of 2002. When the matter came up before the concerned court on 28[th] September 2017, it was noted that the appellant had expired on 17.07.2013 and that, the legal representatives have not come forward to get themselves impleaded. The Learned Judge took the view the Full Bench of this Court in Crl.Appeal.No.699 of 2005 and Crl.Appeal.No.278 of 2006 has held that, if the accused dies and the Lrs. have not come on record, the appeal shall get abated. In Crl.Appeal.No.37 of 2002, inspite of long lapse of time, legal representatives of the accused had not come forward to get Crl.Appeal.No.410/2005 4 themselves impleaded. Hence the appeal was closed as abated. In the light of the Full Bench judgment, this appeal at the instance of the State as against the conviction and sentence of the first accused cannot survive and is accordingly closed. 6. Adv.Mrs.K.B.Sony, learned Government Pleader contended on behalf of the Vigilance that the court below had, on the basis of evidence, found the second accused guilty under section 465 of IPC. It was contended by the learned Government Pleader that the accused ought to have been found guilty also for offences punishable under the Prevention of Corruption Act. However, such a contention is not available to the appellant, since the challenge is confined only to the order of the court below to the extent of releasing the accused on admonition after invoking section 3 of the Probation of Offenders Act. The finding of the court below holding the second accused guilty only for offence punishable under section 465 of IPC was not challenged in appeal. Since section 120B of IPC has not been found against both the accused, second accused cannot be roped in with the first accused for the offences for which first accused was found guilty. Hence, the finding of the court below to the extent of holding the second accused guilty of offence under section 465 of IPC alone, is unassailable. 7. Learned Government Pleader further contended that, the court below, by virtue of section 26 of Prevention of Corruption Act,1988, was designated as a Special court under the Act. Under section 4(3) of Crl.Appeal.No.410/2005 5 the said Act, while trying any case, he may also try any offence other than any offence specified in section 3 of the PC Act, with which the accused may be charged at the same trial. Accordingly, by virtue of the above provisions of the PC Act, the Special Court is not authorised to invoke the provisions of Probation of Offenders Act, it was contended. The contention of the learned Government Pleader was that, since the Special Judge was exercising the powers and jurisdiction under the PC Act, he was not authorized to invoke the provisions under the Probation of Offenders Act with respect to offences other than under the PC Act, charged against the accused under section 4 (3) of the P.C Act. 8. It was further contended by the learned Government Pleader that, the discretion exercised by the court below in invoking the provisions of Probation of Offenders Act was a misplaced one, since the seriousness of the offence was ignored by the learned trial Judge. 9. Per contra, Adv.Mahesh Bhanu S, the learned counsel for the second accused contended that, the bar against releasing an accused on probation under the Probation of Offenders Act will apply only when accused is found guilty of offences referred in section 3(1) of the Prevention of Corruption Act, by virtue of section 18 of the Probation of Offenders Act, or in relation to the penal provisions of the Indian Penal Code or other Statutes, for which the maximum punishment is more than 2 years. In the case at hand, the second accused was found guilty of offence under section 465 of IPC alone for which, the maximum Crl.Appeal.No.410/2005 6 punishment was imprisonment for a term of two years, or with fine, or with both. He was not found guilty of offence under the PC Act nor was he roped along with the first accused for the offences under the PC Act. Hence, there is no bar in invoking the probation of Offenders Act, notwithstanding that he was tried by the Special Judge constituted under the PC Act. 10. Invocation of Probation of Offenders Act in trial of criminal cases can be viewed from two different angles. Firstly, in the case of certain offences where there may not be any legal embargo in invoking the Probation of Offenders Act, but the seriousness of the offence or the nature of offence may not justify invocation of Probation of Offenders Act. The decisions of the Supreme Court in **Dalbir Singh v. State of Haryana and others (2000 Crl.L.J.2283)** and **Bore Gowda v. State of Karnataka (2000) 10 SCC 260)** are the authorities on the above view. 11. In Dalbir Singh's case (supra), it was held by the Supreme Court that in the matter of release on probation of good conduct of a person convicted of an offence, the Parliament has made it clear that it has to be only if the Court forms the opinion that it was expedient to release him on probation for his good conduct, regard being had to the circumstances of the case. It was reiterated that one of the circumstance, which cannot be sidelined in forming the said opinion was 'the nature of the offence'. It was held that section 4 of the Probation of Offenders Act can be resorted to when the Court considers the circumstances of the Crl.Appeal.No.410/2005 7 case, particularly the nature of the offence and the Court forms its opinion that it was suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. Applying this principle, the Hon'ble Apex Court held that the benefit of probation need not be extended to persons convicted for the offence of causing death by rash and negligent driving under section 304A. 12. In Bore Gowda's case, the appellant was convicted for offence under section 408 of IPC for irregularities detected during audit of accounts of a co-operative society. Having regard to the fact that irregularities occurred in 1981 - 82 and the amount of money involved was less and that the appellant had reimbursed the entire amount with interest, the Apex Court held that the benevolent provisions of Probation of Offenders Act could be extended to the appellant. 13. The second group of cases relates to those who are specifically exempted from the application of Probation of Offenders Act by virtue of Section 18 of the said Act. The above provision provides for exclusion from the application of Probation of Offenders Act of certain types of offences under specified statutes. The accused found guilty of such offences are not entitled for the benefit of Probation of Offenders Act. 14. Under Section 18 of the Probation of Offenders Act, section 5 (2) of the Prevention of Corruption Act, 1947 has been specifically exempted from its application. It was further contended by the learned Government Pleader that, in relation to other offences under the PC Act and in Crl.Appeal.No.410/2005 8 relation to offences prescribed by way of subsequent amendment, the above bar will not apply. 15. Prevention of Corruption Act, 1947 was substituted by Prevention of Corruption Act, 1988. Thereafter, it was amended by Prevention of Corruption Act, 2018 with effect from 26/7/2018. Section 13(2) of the Amended Act corresponds to Section 5(2) of the Prevention of Corruption Act, 1947. The question that may arise is whether the bar to section 5(2) of the PC Act under section 18 of Probation of Offenders Act will extend to the substituted Act of 1998 and the Amended Act of 2018. 16. Evidently, the bar under section 18 of the Probation of Offenders Act is applicable to section 5(2) of the Prevention of Corruption Act 1947. The question still remains, as indicated above, whether the provision which substitutes section 5(2) of the Prevention of Corruption Act, 1947 will also fall within the bar under section 18 of Probation of Offenders Act. Without adverting to that point, the law as consistently laid down by the Supreme Court is clear that even assuming that the bar under section 18 of the Act is not applicable in relation to the special statutes which came into existence after the Probation of Offenders Act, wherever the special statutes provide for a minimum sentence, invocation of the benevolent provisions of the Probation of Offenders Act will not be justified. 17. In **Som Nath Puri v. State of Rajasthan ( 1972 Crl.L.J.897)** , accused was convicted under section 409 of IPC as well as under section Crl.Appeal.No.410/2005 9 5(2) of Prevention of Corruption Act, 1947. Three Judges Bench of the Supreme Court held that, since section 409 of IPC was an offence punishable with life imprisonment and section 5(2) of PC Act, 1947 being specifically exempted under section 18 of the Probation of Offenders Act, in relation to both offences, the provisions of the Probation of Offenders Act cannot be invoked. ## 18. In **State of Gujarat v. V.A.Chauhan (AIR 1983 Supreme** **Court 359),** conviction of the accused was under sections 409, 467, 471 of IPC r/w section 5(1)(C) and (2) of the Prevention of Corruption Act. It was held by Supreme Court that, in the light of the specific bar under section 18 of the Probation of Offenders Act, invocation of Probation of Offenders Act and release of the accused on probation was not justified. 19. In **Vishweshwaraiah Iron and Steel Ltd. v.Abdul Gani (1997) 8 SCC 713)** Supreme Court held that, Constitutional power under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision, but at the same time, Constitutional powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in any statute dealing expressly with the subject. It was held that the Supreme Court cannot altogether ignore the substantive provisions of the statute. ## 20. In **Narendra Champaklal Trivedi v. State of Gujarat (2012)** **7 SCC 80),** the same question arose whether the Supreme Court in exercise of its powers under Article 142 of the Constitution can impose a Crl.Appeal.No.410/2005 10 sentence lesser than the minimum sentence prescribed under the penal statute. The Court held that, Article 142 of the Constitution cannot be invoked to impose a sentence lesser than the statutory minimum sentence. 21. Relying on the above precedents, when an identical situation came up before the Supreme Court in **State of Madhya Pradesh v. Vikram Das (2019 Crl.L.J.152),** Apex Court reiterated the law laid in Narendra Champaklal Trivedi's case. In that case, the accused was found guilty under the provisions Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). The minimum punishment prescribed for the above offence under this section was RI for six months and fine of Rs.500/-. In the appeal filed by the accused, the High Court of Madhya Pradesh reduced the sentence to the period already undergone, at the same time enhanced the fine. Interfering with the above and relying on the earlier decisions, the Supreme Court reiterated that, Article 142 of the Constitution of India cannot be resorted to impose a sentence lesser than minimum sentence provided for in any statute. 22. In **State v. Ratan Lal Arora(2004) 4 SCC 590)** , accused was found guilty of offences punishable under sections 7 and 13(2) of the PC Act. Delhi High Court, while sustaining the conviction, after noticing that the minimum sentence under the Act was one year, extended the benefit of Section 360 Cr.P.C, 1973, on the ground that accused had remained in Crl.Appeal.No.410/2005 11 custody for about 22 days. It was held that the bar under section 18 of the probation of Offenders Act, was operative in relation to the PC Act, 1947 and not in respect of offences under the PC Act 1988. The contention of the State that where the statute prescribed a minimum sentence, the Court could not reduce the same any further and by operation of section 8 of the General Clauses Act, 1897, the bar contained in the old Act extended to the new Act also, was repelled. 23. However, on appeal by the State, the Apex Court held the view that the reference in Sections 19 and 18 of the Probation of Offenders Act respectively to Section 562 of Cr.P.C. 1898 and section 5(2) of the Prevention of Corruption Act, 1947, have to be inevitably read as references to their corresponding provisions in Cr.P.C. 1973 and the Prevention of Corruption Act 1988. Consequently, for the conviction under section 13(2) of the PC Act, the principles enunciated under the Probation of Offenders 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 Cr.P.C was concerned, from the date of extension and enforcement of the provisions of the Probation of Offenders Act, 1958, the powers under Section 562 Cr.P.C., 1898, and after its repeal and replacement, powers under section 360 Cr.P.C. 1973, cannot be invoked or applied at all. 24. Moreover, in view of the minimum sentence prescribed in Sections 7 and 13 of the Act and the provisions of Section 28 thereof and the fact that unlike the provisions contained in Section 5 (2) proviso of the Crl.Appeal.No.410/2005 12 Old Act, the Act did not carry any such power to enable the court to show any leniency below the minimum sentence stipulated, it was held that the High Court committed a grave error of law in extending the benefit of probation even under Cr.P.C.1973. ## 25. In **Superintendent, Central Excise, Bangalore v. Bahubali** **(1979 Crl.L.J.862)** accused was found guilty under the Defence of India Act, 1962. On the question whether the Probation of Offenders Act can be invoked, Supreme Court held that though generally speaking the benefit of sections 3,4 and 6 of the Probation of Offenders Act which is a milestone in the progress of the modern liberal trend of reform in the field of penology can be claimed, subject to the conditions specified therein by all offenders other than those found guilty of offences punishable with death or life imprisonment unless the provisions of the said Act are excluded by section 18 thereof, in case of offences under a special Act enacted after the Probation of Offenders Act which prescribes a minimum sentence of imprisonment, the provisions of the Probation of Offenders Act cannot be invoked if the Special Act contains a provision similar to section 43 of the Defence of India Act 1962. Accordingly, recourse to the provisions of the Probation of Offenders Act 1958 cannot be had by the Court where a person is found guilty of any of the offences specified in Rule 126-P(2)(ii) of the D.I.Rules relating to gold control which prescribes a minimum sentence . ## 26. In **Mohd.Hasim v. State of Uttar Pradesh and Others (2017** Crl.Appeal.No.410/2005 13 **2 SCC 198)** , the question considered was in relation to the minimum sentence provided for an offence punishable under section 4 of the Dowry Prohibition Act, 1961. It was held that the benefit of Probation Act cannot be extended where minimum sentence is provided. 27. In the light of the above consistent settled legal proposition, if a special statute prescribes a minimum sentence, provisions of the Probation of Offenders Act, 1958 cannot be invoked. This seems to be on the legal premise that when a statute, prescribes a statutory minimum sentence, the discretion of the court to impose any lower sentence including invocation of Probation of Offenders Act, is impliedely taken away. In the case of Special Court under the Prevention of Corruption Act, the court cannot invoke the benevolent provisions of Probation of Offenders Act, in respect of offences in which minimum sentence is prescribed. However, the bar under the Protection of Offenders Act will not apply to convictions entered into by Special Court for offences under other Penal Statutes, if no minimum sentence is prescribed in relation to that offence. In the case at hand, 2[nd] accused was not convicted for any offence under the provisions of P.C Act. Hence, there was no illegality in invoking powers under the probation of Offenders Act. 28. According to the learned counsel for the accused, the court below has judiciously applied its mind while exercising the discretion. It is pertinent to note that the court below has given four specific reasons for invoking the provisions of the Probation of Offenders Act. Firstly, it was Crl.Appeal.No.410/2005 14 held that, second accused was a provisional employee and he was not aware of the official procedure. It was also noticed that the second accused has committed offence under section 465 of IPC alone, for which the maximum punishment was imprisonment of two years with fine or both. Second accused has ceased to be a provisional employee at a point of time when the alleged overt act was stated to have been committed. Lastly, it was held that, he had no further interest or liability in the matter and in fact, it was the first accused who had committed the forgery. 29. In answer to the above contention, learned Government Pleader relied on the decision reported in **Inre B.Titus and Others ((28) AIR 1941 Madras 720)** , wherein, learned Judge had held that the provisions of the Probation of Offenders Act was not intended to be applied to experienced men of the world, who deliberately flout the law and commit offences which they knew were strongly condemned by their superior officers. In **Sharvan Kumar v. The State of Uttar Pradesh,** **(AIR 1985 SC 1663)** the Court had held that the offence involved fell under section 468 of IPC and the offence was one of serious nature and the appellant was not entitled to be released on probation of good conduct. 30. According to the contesting respondent herein, prosecution was of the year 1984. Ultimately, Court found the second accused guilty, but, without imposing sentence released him under probation after due admonition. In **Gopal Kumar Sao v. State of Jharkhand (2019 KHC** Crl.Appeal.No.410/2005 15 **4678)** , it was held that, there were several mitigating circumstances in favour of the accused which entitled him for release on probation. Having appreciated these facts, I find no merit in the contention of the learned Government Pleader that the jurisdiction was wrongly exercised by the court below. It is to be noted that, offence alleged against the second accused herein was not very serious, when compared with that alleged against the first accused. Forgery was committed by the first accused. Hence, it cannot be said that court below was not justified in invoking the provisions under the Probation of Offenders Act, 1958. 31. Learned counsel for the second accused contended that the appeal itself was not maintainable. It was contended that, in the present case, the appeal under section 372 of Cr.P.C was not exercisable since the sentence imposed was one invoking the provisions under the Probation of Offenders Act, 1958. In **Parmal Ghosh v. State of West Bengal and Others (1984 CRI.L.J.1302)** it was held that the order under section 4 of the Probation of Offenders Act, releasing the accused on probation was appealable under section 11(2) of the Act itself. Hence, no revision lies under section 401 of Cr.P.C in the light of subsection 4 thereof. However, the order proposing to release the accused under section 4 of the Probation of Offenders Act was held to be not appealable under section 11(2) as no order had actually been passed as contemplated under the Probation of Offenders Act. In **State of U.P. v. Nand Kishore Misra (1991 KHC 803)** convict was released on probation under section 4 of Crl.Appeal.No.410/2005 16 the Probation of Offenders Act. It was held that the appeal against the release would lie to the Sessions Court in view of the provisions of section 11(2) of the Act and an appeal to the High Court under section 377(1) of Cr.P.C would not be competent. In the light of the above proposition of Law, the present appeal is also not sustainable. In the light of the findings on merits, at this length of time, no purpose will be served by directing the appellant to move the proper court. Having evaluated the entire facts, I feel that the appeal is not sustainable both on the ground of maintainability and on merits. Accordingly, appeal is dismissed, confirming the sentence imposed on the order releasing the accused on probation. **Sd/-** **SUNIL THOMAS** Sbna **JUDGE**