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1991 DIGILAW 532 (MAD)

S. Chandra Mohan, In re. v. .

1991-08-01

PADMINI JESUDURAI

body1991
Judgment : 1. This appeal by the accused, challenges his conviction by the Special Judge, Coimbatore, in C.C.No.10 of 1983 on his file, for offences under Sec.409 of I.P.C. and 5(1)(c) read with 5(2) of the Prevention of Corruption Act, 1947 and 5(1) (d) read with 5(2) of the said Act and the sentence of imprisonment for a period of one year and a fine of Rs.50 for the offence under Sec.409, I.P.C. and sentence of imprisonment for a period of one year for each of the other two offences. 2. The conviction was on the allegation that the appellant being a public servant-a Senior Public Relations Officer in the Coffee Board at Cuddalore, in such capacity misappropriated a sum of Rs. 1,590 and abusing his position as a public servant, obtained for himself the above sum as illegal gratification and thereby had committed the above offences. 3. Thiru N.Duraisamy, learned counsel for the appellant did not challenge the correctness of the conviction, but contended that the appellant was entitled to the benefit of the two Government Orders, viz., G.O.Ms.No.180, Home (Prisons IV) Department, dated 28.1.1989 and G.O.Ms.No.781, Home (P.R.C Department), dated 11.4.1990, passed by the Government of Tamil Nadu under Sec.432 of Crl.P.C. each granting remission of six months and since the sentence imposed on the appellant is only for a period of one year, directed to run concurrently, the entire sentence of imprisonment stood remitted under the abovesaid Government Orders. The learned counsel contended that in the event of this Court holding that the appellant was not entitled to the benefit of the said Government Orders, a lenient view on the sentence could be taken. 4. The learned counsel contended that in the event of this Court holding that the appellant was not entitled to the benefit of the said Government Orders, a lenient view on the sentence could be taken. 4. Thiru P.Rajamanickam, Special Public Prosecutor for C.B.I.by referring to Secs.432 and 435 of Crl.P.C. as well as to Arts.73,162,245 and Entry 1 of List III of the Seventh Schedule of the Constitution of India, contended that though the above Government Orders would apply to sentences for the offence under Sec.409 of I.P.C. and the offence under the Prevention of Corruption Act, 1947 the benefit of the Government Orders will have to be denied to the appellant, in view of Sec.435(1)(a), since this is a case investigated into by the Central Bureau of Investigation, which is a wing of the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946, and the sentence cannot be remitted by the State Government, since the Government Orders do not show that the Central Government was consulted before the State Government issued the Orders. 5. The short question that arises for consideration is, whether the appellant is entitled to the benefit of the above said two Government.Orderse 6. In C.A.No.258 of 1986 in the judgment delivered today, I have held that the above two Government Orders would apply to persons convicted for offences under the I.P.C. and the Prevention of Corruption Act (Central Act 3 of 1974), subject to the limitations contained in Sec.435 of the CrLP.C. I have relied upon Arts. 73,162,246, Entry No.93 in List 1, Entry No.64 in List 2 and Entry No.1 in list 3 of the 7th Schedule of the Constitution for holding so. 7. Sec.435 of the Crl.P.C. contains a different kind of limitation to the powers of the State Government to grant remission. Sec.435 of the Crl.P.C. is as follows: “State Government to act after consultation with Central Government in certain cases: (1) The powers conferred by Secs.432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence. Sec.435 of the Crl.P.C. is as follows: “State Government to act after consultation with Central Government in certain cases: (1) The powers conferred by Secs.432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence. (a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government. 2. No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences had also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.” 8. The above provision shows that when the case is investigated into by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other Agency empowered to make investigation into an offence under any Central Act other than the Code, the State Government can pass orders of remission only after consultation with the Central Government. In the instant case, the investigation is by the Central Bureau of Investigation which is a wing of the Delhi Special Police Establishment coinstituted under the Delhi Special Police Establichment Act, 1946. Consultation of the Central Government is therefore necessary. The two remission Government Orders do not show that the State Government consulted the Central Government before passing them, nor has any material been placed before me to show that the State Government consulted the Central Goverment. Consultation of the Central Government is therefore necessary. The two remission Government Orders do not show that the State Government consulted the Central Government before passing them, nor has any material been placed before me to show that the State Government consulted the Central Goverment. The above two Government Orders, thereto e, will not apply, to this particular case, in view of sec.435(1)(a) of Crl.P.C. 9. Thiru N.Duraisamy, learned counsel for the appellant would submit that na lenient view on the senience could be taken. The occurrence had taken place in 1981. But for the accidental factor of the investigation being done by the Central Bureau of Investigation, the petitioner would be entitled to the remission under the Government Orders. Considering this also and in view of the fact that the petitioner has already paid the fine in full. After conviction, the petitioner has been in custody for four months. I feel that interests of justice would be met by reducing the imprisonment to the period already undergone by him. 10. In the result, the convictions of the appellant for the offences under Secs.409 and 5(1)(c) read with Sec.5(2) of the Prevention of Corruption Act and Sec.5(1)(d) read with Sec.5(2) of the Act are confirmed, but the sentence of imprisonment for a period of one year for each of the offences with the fine of Rs.50 is modified to imprisonment for the period already undergone by him and the fine of Rs 50 already paid by the appellant. With this modification in the sentence, the appeal is dismissed.