SHIV NANDAN DIXIT Vs. STATE OF U P

JUDGEMENT

(1.) The two appellants in these appeals were convicted by the special judge, Anti-Corruption (Central) , up. , Lucknow for offences punishable under sections 120b IPC, 161, 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 (for short 'the Act') and sentenced to undergo 2 years' Rl under section 161 IPC and section 5 (1) (d) read with section 5 (2) of the Act, and were further directed to pay a fine of Rs. 500 for an offence punishable under sections 120b and 161 IPC and section 5 (2) of the Act; in default to undergo further sentence of 6 months' Rl. In an appeal filed by the appellants, the High Court of Allahabad, Lucknow, while dismissing the said appeals, reduced the sentence to one year Rl. It is against the said order of the High Court that the two appellants are before us in these two appeals. The basic facts necessary for the disposal of these appeals are as follows :

(2.) Mr. P. P. Malhotra and Mr. S C Maheshwari, learned senior counsel appearing for the appellants, firstly contended that in view of the provisions of section 196 (2) of the Code of Criminal Procedure, 1898 (the Code) , the trial court could not have taken cognizance of the offence punishable under section 120b IPC without the consent in writing of the State government or the district magistrate concerned. Cognizance of the offence punishable under section 120b IPC can be taken without consent under the aforesaid provisions only if the offence is one punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. In the instant case, according to them, since no such consent was taken, the trial court could not have taken cognizance of the offence punishable under section 120b IPC. Section 120b IPC makes it abundantly clear that whoever is charged of a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no expressed provision is made in the Code, for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. In the instant case the appellants were charged of having conspired to commit an offence punishable under section 161 IPC.

(3.) A mere perusal of section 161 IPC and section 5 (1) (d) of the Act would make it obvious that the maximum punishment which can be imposed under section 161 IPC (as it'then stood) is imprisonment of either description which may extend to three years or with fine or with both. For the offence under section 5 (1) (d) of the Act, the punishment prescribed is 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. Thus, the conspiracy to commit either of the offences was punishable with imprisonment for a term exceeding two years rigorous imprisonment and, therefore, in our view section 196 (2) of the Code had no application because in respect of both the offences, the Court had jurisdiction to pass a sentence of over two years' rigorous imprisonment. The submission that it was permissible for the Court to award simple imprisonment for any term subject to the maximum prescribed and, therefore, section 196 (2) of the Code was applicable, cannot be accepted. Equally without substance is the submission that the conspiracy alleged must be compulsorily punishable with rigorous imprisonment for a term exceeding two years, leaving no discretion in the Court to pass a lesser sentence. The true test is whether the conspiracy alleged was punishable with a term of imprisonment exceeding two years' rigorous imprisonment and, as we have noticed earlier, it was so in the instant case having regard to the punishment prescribed for the offences under section 5 (1) (d) of the Act as well as section 161 IPC. Therefore this argument of the appellants has to be rejected.