Indian Kanoon - Search engine for Indian Law

4. On 3.12.2020, this Court while recording the aforesaid plea, issued notice on the SLP and on the prayer for interim relief of bail while simultaneously impleading the complainant as the 2nd respondent. On 18.12.2020, counsel for the State and respondent no. 2 entered appearance and counsel for respondent no.2 confirmed that the dispute had been amicably resolved. However, counsel for respondent no.1 submitted that the minimum sentence provided by the statute under Section 397 is 7 years and the same cannot be reduced below that period. On this submission, learned counsel for the appellants sought benefit under the Probation of Offenders Act, 1958, hereinafter referred to as ‘the Act’. It is on the limited conspectus of the aforesaid aspect that on 11.01.2021, we granted leave and reserved the judgment upon conclusion of arguments and the parties having filed their respective synopsis.

The legal position

5. The plea of the learned counsel for the State respondent no.1 is based on the judgment of this Court in the case of State of Madhya Pradesh v. Vikram Das2 opining that the courts cannot impose less than the minimum sentence prescribed by the statute. He thus seeks continuing detention of the appellants to serve out the remaining sentence. On the other hand, learned counsel for the appellants has sought the benefit under the said Act in view of the age of the appellants when the offence was committed.

13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the PC Act’) prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali11. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.12 It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We (1979) 2 SCC 279.

State vs. Ratan Lal Arora, (2004) 4 SCC 590.

are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab13 are in the same context. The factual position

14. The facts of the present case are that the appellants have not served out the minimum sentence of 7 years though they have served about half the sentences. They were aged under 19 & 21 years of age as on the date of offence but not on the date of sentence. The redeeming feature in their case is that the person who suffered, appears to have forgiven them, possibly with the passage of time. There is no adverse report against them about their conduct in jail otherwise the same would have been brought to our notice by learned counsel for the State. Faced with the aforesaid legal position, this is a fit case that the benefit of probation can be extended to the appellants under the said act in view of the provisions of Section 4 of the said Act on completion of half the sentence.