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  

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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.

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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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