Case: A.B. Bhaskara Rao Vs. Inspector of Police, CBI Visakhapatnam

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 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 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. 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. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 -) 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 merits5) 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.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 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.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 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.There is no dispute as regards the date of occurrence and the date of conviction passed by 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.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.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.We have perused those orders. The orders do not disclose any factual details and the relevant provisions under 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 orders19) 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 aspectsb) 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 decisionc) 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 prosecutiond) 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 sentencee) 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 permissiblef) 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 Statuteg) 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 sympathyh) 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 casei) 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.