- (1.) THIS appeal has been filed by Roop Narain against the judgment and order dated 26-5- 1982 passed by Sri K. K. Singh, the then 2nd Addl. Sessions Judge, Sultanpur in Criminal Case No. 1 of 1981 whereby the appellant was held guilty and was convicted for offences punishable under Section 5 (2) of the Prevention of Corruption Act and under Section 161, I. P. C. and was sentenced to undergo rigorous imprisonment for a period of one year and for a period of six months respec tively under the two Sections. Both the sentences were ordered lo run concurrent ly. However, the sentences were ordered to be suspended, on the appellant executing a personal bond in the sum of Rs. one thousand for keeping the peace and for good conduct for a period of one year and to furnish two sureties in the like amount. THIS appeal was admitted by this Court on 14-7-1982 and while admitting the appeal and issuing notices, a notice was ordered to be issued to the appellant to show cause why the sentence should not be enhanced as it was found that in a corruption case on conviction of a Government servant order of releasing on probation was passed by giving benefit of the U. P. First Offenders Probation Act. THIS criminal appeal No. 536 of 1982 was thus re-numbered as Crl. Revision No. 333 of 1982 also. Criminal Misc. Application No. 1983 of 1994 was also moved on behalf of the appellant for dismissing the appeal as not pressed be cause the appellant had undergone the period of one year of Probation.
(2.) LEARNED Counsel for the appellant and learned A-G. A. were heard. Since the appellant has moved the application for not pressing the appeal, it may be found out whether the appellant was rightly con victed. The appellant was a Lekhpal and the charge against him was that he had received Rs. 10 each from some persons as a reward after he had identified them in the matter of disbursement of house grant dis tributed by the Stale. He had demanded the money as a reward afterwards, on the ground that he had incurred expenditure on some stationery for preparing the papers (documentation ). It was a petty matter of receiving Rs. 10. The trial Court found the case proved. The appellant was rightly convicted of the offence punishable under Section 5 (2) of the Prevention of Corruption Act, 1947 as well as under Sec tion 161,1. P. C. The simple question before this Court is whether the appellant could have been released by giving the benefit of the Probation of Offenders Act, 1958 (Act No. XX of 1958) (hereinafter referred to as the Probation Act) in a case punishable under the Prevention of Corruption Act, 1947 (Act No. 2 of 1947) (hereinafter referred to as the Corruption Act ). The appellant appears to have been given benefit obviously under Sec tion 4 (1) of the Probation Act which runs as follows: "4 (1 ). When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient lo release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or. without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender of his surety, if any, has fixed place of abode of regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. " It appears that the offence punish able under Section 5 (2) of the Corruption Act is not punishable with death or im prisonment for life and, therefore, the Court had the jurisdiction lo extend the benefit of Section 4 (1) of the Probation Act if not prohibited otherwise. Sub-sec tion (2) of Section 5 of the Corruption Act runs as follows: "5 (2) 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: Provided that the Court may. for any spe cial reasons recorded in writing impose a sen tence of imprisonment of less than one year. " The bare reading of the Section shows that the Court has got the jurisdiction to impose a sentence of imprisonment of less than one year in appropriate cases by giving reasons. The Prevention of Cor ruption Act does nowhere say that the benefit of the Probation Act cannot be given in a case covered by the Act. It ap pears that this Court found that the benefit could be extended on the ground as fol lows: "learned defence Counsel pleads that the accused be awarded benefit of U. P. First Offenders' Probation ACL as the amount in volved is small and the accused losing his service. The Counsel for the State pleads it is not a case where such benefit should be given. 1 have considered these submissions and bearing in mind the evidence, I am inclined to grant benefit of Section 4 of the said Act in view of advancing age of the accused and the amount shame the accused has lo undergo after his conviction. "
(3.) THE Court, therefore, kept in mind the evidence as well while granting the benefit. It was a simple case of illegal gratification of Rs. 10 each received from some persons. So the learned Court below had given the ground in writing and given the benefit of the Probation Act lo the appellant. Section 386, Cr. PC. deals with the powers of the appellale Court. Clause (b) (i) (iii) of Section 386 run as follows: " (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit of discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or com mitted for trial, or After perusing such record. . . . . . . . . . . . . . or may- (a ). . . . . . . . . (b) in an appeal from conviction. . . . . . . . . . . . (i ). . . . :. . . . (ii ). . . . . . . . (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;;