REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 208 OF 2019 (Arising out of S.L.P (Crl.) No.  2328 of 2015)

STATE OF MADHYA PRADESH                     ........APPELLANT   

             Versus

VIKRAM DAS                 ........RESPONDENT

J U D G M E N T

Hemant Gupta, J.

The State is in appeal challenging the Order dated 08.05.2012

passed by the High Court of Judicature of Madhya Pradesh at Jabalpur,

sentencing the respondent for an offence under Section 3(1)(xi) of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 19891 to the sentence already undergone, but enhancing the fine

from Rs. 500/- to Rs. 3000/-.  

2. The aforesaid Order of the High Court was passed in appeal filed

by the respondent herein against the Order dated 12.03.2007 passed

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by  the  trial  court  whereby  the  respondent  was  convicted  for  the

offence under Section 3(1)(xi) of the Act and was sentenced to undergo

rigorous imprisonment for six months with fine of Rs. 500/-.   

3. In  appeal,  the  High  Court  has  recorded  the  statement  of  the

counsel for the respondent that he does not wish to press the appeal

on merit and confines his argument to the sentence part only. It was on

such statement; the appeal was disposed of. The relevant extract from

the order of the High Court reads as under:-  

“(2)  Learned counsel for the appellant, at the outset, submitted that he does not wish to press the appeal on merit and confine his arguments to the sentence Part only.  He has challenged only quantum of punishment. He has submitted that, appellant has deposited the fine amount of Rs. 500/- and has been undergone sentence for 11 days during the course of trial…...  

(5)   Accordingly,  the appeal  filed by the  appellant  is partly allowed. The order of conviction passed against the appellant is maintained.  However, the sentence of six months R.I. awarded to the appellant is modified to the extent of sentence already undergone by him.  His jail sentence is hereby set aside.  The fine of Rs. 500/- imposed by the trial  court is hereby enhanced to Rs. 3,000/- (Rs. Three Thousand only)…….”

4. Section  3(1)  of  the  Act  provides  for  a  punishment  for  a  term

which shall not be less than six months but which may extend to five

years and with fine.  Therefore, the only question is whether the High

Court  could  award  sentence  less  than  the  minimum  sentence

contemplated  by  the  Statute.   The  relevant  Section  3(1)(xi),  as  it

existed prior to amendment by Central  Act No. 1 of  2016, reads as

under:-   

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“3. Punishments  for  offences  of  atrocities.-  (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --  ………………

(xi) assaults or uses force to any woman belonging to a Scheduled  Caste  or  a  Scheduled  Tribe  with  intent  to dishonour or outrage her modesty;

  ………………

Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”

5. Learned counsel for the appellant relies upon judgment of this

Court  in  Narendra  Champaklal  Trivedi  v.  State  of  Gujarat2

wherein  an  argument  raised  by  the  appellant  was  rejected  that

sentence less than minimum sentence can be awarded in exercise of

the powers conferred under Article 142 of the Constitution.  The Court

held as under:-  

“27. The  submission  of  the  learned  counsel  for  the appellants,  if  we  correctly  understand,  in  essence,  is that  the  power  under  Article  142 of  the  Constitution should be invoked. In this context, we may refer with profit to the decision of this Court in Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani3 wherein it has been held that the constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision 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 any statute dealing expressly with the subject. It was also made clear in the said decision that this  Court  cannot  altogether  ignore  the  substantive provisions of a statute.

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2 (2012) 7 SCC 80 3 (1997) 8 SCC 713  

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30. In view of the aforesaid pronouncement of law, where the minimum sentence is provided, we think it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution of India to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory mandate and further  it  would  amount  to  ignoring  the  substantive statutory provision that prescribes minimum sentence for a  criminal  act  relating  to  demand  and  acceptance  of bribe. The amount may be small but to curb and repress this kind of proclivity the legislature has prescribed the minimum sentence.  It  should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would  be  adding  a  premium.  The  law  does  not  so countenance and, rightly so, because corruption corrodes the  spine  of  a  nation  and  in  the  ultimate  eventuality makes the economy sterile.”

6. In  State v. Ratan Lal Arora4,  this Court was considering the

grant of benefit of Probation of the Offenders Act, 19585 to a convict of

the offences under Prevention of Corruption Act, 19886.   It was held

that in  cases  where  an  enactment  enacted  after  the  Probation  Act

prescribes minimum sentence of imprisonment, the provisions of the

Probation Act cannot be invoked. The Court held as under:-

“12. That apart, Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one  year  respectively  in  addition  to  the  maximum sentences  as  well  as  imposition  of  fine.  Section  28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case of Supdt., Central Excise v. Bahubali7  while dealing with Rule 126-P(2)(ii) of  the  Defence  of  India  Rules  which  prescribed  a minimum sentence and Section 43 of  the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting  relief  under  the  Probation  Act,  this  Court observed  that  in  cases  where  a  specific  enactment

4 (2004) 4 SCC 590 5 Probation Act 6 Corruption Act 7 (1979) 2 SCC 279

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enacted after the Probation Act prescribes a minimum sentence  of  imprisonment,  the  provisions  of  the Probation  Act  cannot  be  invoked  if  the  special  Act contains  any  provision  to  enforce  the  same  without reference  to  any  other  Act  containing  a  provision,  in derogation of the special enactment, there is no scope for  extending the benefit  of  the Probation  Act  to  the accused………….”

7. In the case of Mohd. Hashim v. State of Uttar Pradesh and

Others8, the question examined was in relation to minimum sentence

provided for an offence under Section 4 of the Dowry Prohibition Act,

19619, providing for minimum sentence of six months. It was held that

benefit  of  the  Probation  Act  cannot  be  extended  where  minimum

sentence is provided. The Court held as under:-

“19. The  learned  counsel  would  submit  that  the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be  reduced  for  a  term of  less  than  six  months  and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities  in Arvind  Mohan  Sinha10 and Ratan  Lal Arora11 .  We  may  further  elaborate  that  when  the legislature  has  prescribed  minimum sentence  without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment  or  fine,  is  mandatory  and  leaves  no discretion  to  the  court.  However,  sometimes  the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing,  may award a lower sentence or  not  award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence  means  a  sentence  which  must  be  imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil,

8 (2017) 2 SCC 198 9 Act of 1961 10 (1974) 4 SCC 222 11 (2004) 4 SCC 590

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then  the  statute  does  not  prescribe  a  minimum sentence. A provision that gives discretion to the court not  to  award  minimum  sentence  cannot  be  equated with a provision which prescribes minimum sentence. The  two  provisions,  therefore,  are  not  identical  and have different implications, which should be recognised and accepted for the PO Act.

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24. At  this  juncture,  the  learned  counsel  for  the respondents would submit that no arguments on merits were  advanced  before  the  appellate  court  except seeking  release  under  the  PO  Act.  We  have  made  it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the court has to be guided by the provisions of the PO Act and the precedents of this Court. Regard being had to the facts and circumstances in entirety, we are  also  inclined  to  accept  the  submission  of  the learned counsel for the respondents that it will be open for them to raise all points before the appellate court on merits including seeking release under the PO Act.”

8. In view of aforesaid judgments that where minimum sentence is

provided  for,  the  Court  cannot  impose  less  than  the  minimum

sentence.  It  is  also  held  that  provisions  of  Article  142  of  the

Constitution  cannot  be  resorted  to  impose  sentence  less  than  the

minimum sentence.  

9. The conviction has not been disputed by the respondent before

the High Court  as  the quantum of  punishment  alone was disputed.

Thus, the High Court could not award sentence less than the minimum

sentence  contemplated  by  the  Statute  in  view  of  the  judgments

referred to above.    

10. Therefore, the present appeal is  allowed. The order passed by

the  High  Court  is  set  aside.   The  respondent  shall  undergo  the

remaining sentence imposed by the trial  court  for an offence under

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Section 3(1)(xi) of the Act. The respondent shall surrender before the

Court within four weeks.  

….…………..........................J.   (Dr. Dhananjaya Y. Chandrachud)

…………….................................J.      (Hemant Gupta)

New Delhi, February 8, 2019.

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