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SUPREME COURT OF INDIA
1lth January 1957
S.R. DAS, C.J.I., BHAGWATI, VENKATARAMA AYYAR, S.K. DAS AND GOVINDA MENON, JJ.
Om Parkash Gupta, Appellant
Versus
State of U.P., Respondent.
Om Parkash Appellant
Versus
The State of U.P., Respondent.
Ram Gobind Singh, Appellant
Versus
State of Vindhya Pradesh, Respondent.
Criminal Appeals Nos. 42 of 1954 and Nos. 3 and 97 of 1955.
Criminal Appeal No. 42 of 1954.
Criminal Appeal No. 3 of 1955.
(From: (S) A I R 1955 All 275 F.B.)
Criminal Appeal No. 97 of 1955.
(From. Criminal Revn. No. 216 of 1951 D/-16-1-1952 (V.P. Rewa.))
Advocates appeared
Mr. S. C. Isaacs, Senior Avocates, (Mr. P. C. Agarwala, Advocate, with him) (in No. 42 of 54); Mr. S. C. Isaacs, Senior Advocate, (Mr. O. N. Srivastava, Advocate, with him) (in No. 3 of 55) and Mr. S. C. Isaacs, Senior Advocate, (Messrs. J.B. Dadachanji, S.N. Andley and Rameshwar Nath, Advocates, of Messrs. Rajinder Narain & Co. with him) (in No. 97 of 55), for Appellants; Messrs. G.,C. Mathur and C. P. Lal, Advocates, (in Nos. 42 of 54 & 3 of 55) and Mr. Porus A. Mehta and Mr. R. H. Dhebar, Advocates, (in No. 97 of 55), for Respondents.
Section 7, of the Prevention of Corruption Act, 197 -Scope. - Penal Code, Sections. 161, 165, 405, 409 - prevention of Corruption Act, 1947, Sections 5, 6, 7.
Section 161, or 162 or 405 of Penal Code if repealed by S. 5, Prevention of Corruption Act.
Prosecution of accused under S. 409, Penal Code-Sanction if necessary-Prosecution if offends Art. 14 of the Constitution.
Sections 161, 165A, Penal Code-Criminal Procedure Code, 1898, Section 342-Prevention of Corruption Act, 1947, Section 7-Scope.
Held: (1) The first point for determination is whether S. 409, Penal Code deals with the same offence as that contemplated under Ss. 5 (1) (c) and 5 (2), Prevention of Corruption Act, 1947, and if so, has there been an Overlapping of legislation over the same field: and has the latter one impliedly replaced the earlier.
The first thing that has to be remembered in this connection is that the Prevention of Corruption Act being it temporary one, the legislature would not have intended in the normal course of things that a temporary statute like the one in question should supersede an enactment of antiquity even if the matter covered the same field. Under S. 6 (a), General Clauses Act if by efflux of time the period of a temporary statute which had repealed an earlier statute expires, there would not be a revival of the earlier one by the expiry of the temporary statute.
The two sections, namely S. 405, Penal Code and S. 5(1) (c) of the Prevention of Corruption Act are not identical in essence, import and content and this conclusion gathers much force from the suggestion on behalf of the state that by enacting the Amending Act 1952 and creating sub-section (4) to section 5 the legislature specifically stated that the offence under S. 5 (1) (c) is different from any previous existing offences under any penal statute and there can, therefore, be no scope for speculation about repeal The words used in sub-section (4) "any other law" made the position quite clear and explicit. Other laws does not mean "identical law" in which case the word "other" will have no meaning.
A clear comparison and contrast of the different elements constituting the two offences would show that an offence under S. 405 of the Penal Code is separate and distinct from the one under S. 5 (1) (c) There are three points of difference between S. 405, Penal Code and S. 5 (1) (c). The dishonest misappropriation contemplated in S. 405, Penal Code is different; whereas that under S. 5 (1) (c) is either dishonest misappropriation or fraudulent misappropriation. The latter section is much wider in amplitude than the former. In S.405, Penal Code the words used are "In violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied." There are no such expressions in S. 5 (1) (c). It is clear, therefore, that whereas under S. 405, Penal Code there are three essential ingredients to constitute the offence, each one of them being separate and distinct, in S. 5 (1) (c) there are certain matters in it which are absent in S. 405, Penal Code. The words dominion and entrustment narrate two different things. The word dominion is not in S. 5 (1) (c). The word fraudulently is not present in S. 405, and in S. 5 (1) (c) the gist of the offence can also be made out if the offender allows any person to derogate from the law as contemplated in the earlier portion of the section. The meaning put on the word, allows would certainly be different from dishonest misappropriation by the offender himself. It may be that the word can mean allowing by negligence or without any volition on the part of the offender. It may also mean that there is some kind of positive and tacit acquiescence necessary to bring home the offence. In any event, allowing other persons so to do does not find a place in S. 405, Penal Code though this section also contemplates "wilfully suffering any other person so to do". There is an essential difference between "allowing" a person and "wilfully suffering" a person to do a certain thing. The conclusion therefore is that the offence created under S. 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under S. 405, Penal Code and, therefore, there can be no question of S. 5 (1) (c) repealing S. 405, Penal Code.
(2) In this commotion Ss.5 (1) (a) and 5 (1) (b) can usefully be compared with Ss. 161 and 162 of the Penal Code. Sections 5 (1) (8.) and 5 (1) (b) are aggravated forms of Ss. 161 and 162 of the Penal Code and the intention cannot be to abrogate the earlier offence by the creation of the new offence. These two offences can co-exist and the one will not be considered as overlapping the other. A course of conduct can be proved when a person is arraigned under Ss. 5(1) (a) and 5 (l)(b), but such a course is impossible to be let in evidence when an offence under Ss. 161 and 162 is being enquired into or tried. Similarly there are a number of elements which can be proved in an inquiry or trial under S. 5 (1) (c) that cannot be let in by the prosecution when a person is charged for an offence under S. 405 0 f the Indian Penal code.
(3) As S. 40.5 Penal Code is not repealed by S. 5 (I) (c), Prevention of Corruption Act the application of S. 409 which is an aggravated form of offence to a public servant is not barred by Art. 14 of the Constitution.
(4) No sanction is necessary to prosecute the public servant as he does not normally act in his capacity as a public servant when committing criminal branch of trust.
(5) Where a person is charged with criminal misconduct and it i3 seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, the Court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct. Such a presumption cannot be drawn in the case of a prosecution under Ss. 161, 165 and 409 of the Penal Code.
(6) Section 7 of the Prevention of Corruption Act 1947, is a departure or deviation from the procedure till then obtaining in a criminal case and thereby an accused person is held competent to be a witness on his behalf. Whereas under S. 342 of the Cr.P.C. as it stood before the recent amendment, no accused person was entitled to be administered an oath and thereby competent to testify in a Court of Law in a case in which he is accused; under S. 7 any person charged with an offence punishable under S. 161 or S. 165 A of the Penal Code or under sub-section (2) of S. 5 of the Prevention of Corruption Act, is a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with at the same trial; and there are also certain safeguards provided in the matter of giving such testimony.
Judgement
GOVINDA MENON, J.- Though these three appeals have been filed against the decisions of different courts and are not connected either as regards community of purpose or the identity of the accused, they have been heard together, because the points of law raised in thorn are identical and the arguments of counsel have proceeded on common lines. Hence a common judgment dealing with the legal aspect would be apt in the circumstances.
2. Criminal Appeal No. 42 of 1954 has been preferred by Om Prakash Gupta against the dismissal of his Revision Petition by the High Court of Allahabad, thereby affirming the appellate decision of the Sessions Judge of Kumaun who in his turn maintained the sentence of rigorous imprisonment for one year and a fine of Rs. 500 passed on the appellant by the Special 1st Class Magistrate of Nainital on 30- 4-1953, under s. 409, Penal Code. This appellant was a clerk in the Electric Department of Haldwani Municipal Board and the charge against him was that he received three sums of money:
Rs. 242-5-9 (Ex.p. 14) on 28-7-1951,
Rs. 70 (Ex.p. 17) on 19-10-1951,
Rs. 135 (Ex.p. 13) on 23-10-1951
aggregating to Rs. 447-5-9 and misappropriated the whole amount, though his defence was that having received the money, he gave it to his official superior, Electrical Engineer Pandey; and did not have anything more to do with the money. The Police charge-sheet was under Ss. 409 and 467, Penal Code, but the conviction was only under the former section. The conviction and sentence imposed upon him by the trial court having been confirmed in appeal by the learned Sessions Judge and further having been affirmed by dismissal of his revision by the High Court of Allahabad, have now become the subject of appeal, as special leave has been granted on the question of law raised.
3. Om Prakash, the appellant in Criminal Appeal No. 3 of 1955, had obtained leave to appeal from the High Court of Allahabad against the opinion of a Full Bench of that Court in Criminal Revision No. 141 of 1961, by which it affirmed the order of the Civil and Sessions Judge of Sitapur in Criminal Revision No. 5 of 1951, holding that Om Prakash was improperly discharged by the learned Magistrate of an offence under S. 409, Penal Code, and directing the Magistrate to make a further inquiry into the matter of that offence. It may be mentioned that the learned 1st Class Magistrate held that sanction was essential for the prosecution of Om Prakash and as the same had not been granted, the prosecution was not maintainable. This view did not find acceptance at the hands of the learned Sessions Judge, whose decision was affirmed by the High Court of Allahabad. The charge against him was that as a canal Accountant in a Divisional Engineer s office he committed criminal breach of trust of a certain sum of money.
4. Lal Ramagovind Singh, the appellant in Criminal Appeal No. 97 of 1955, was the Director of Agriculture in the Indian State of Rewe and for the offence of having committed criminal breach of trust of an amount of Rs. 586-10-0 on 4-12-1948, he was prosecuted under S. 409, Penal Code on 13-8-1949, and after inquiry, charges were framed against him on 24-2-1950, resulting in a judgment of conviction by the trial Court on 29-9-1950 and a sentence of one year s rigorous imprisonment and a fine of Rs. 500. His appeal to the Sessions Judge was dismissed on 29-9-1951 and the revision to the Judicial Commissioner shared the same fate on 16-1-1952. Special leave having been granted to him, criminal Appeal No. 97 of 1955 was the outcome.
5. The first question for consideration, is whether S. 409, Penal Code, in so far as it applies to a public servant (in this case the three appellants were admittedly public servants), has been impliedly repealed by the enactment of Ss. 5(1) (c) and 5(2), Prevention of Corruption Act II of 1947, and if that is so, whether a prosecution of the appellants for an offence of criminal breach of trust without the requisite sanction
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