The prosecution cannot evade the provisions of a Special Act by charging the accused under a general provision of the Indian Penal Code.

Subba Rao, C. J.

[1] This Criminal Revisional Petition has been referred to a Bench by Bhimasankaram J., on the ground that it raised a question of considerable importance.

[2] The Delhi Special Police Establishment filed a charge-sheet before the Joint Magistrate, Vijayawada, against the two accused Venkata Subbaiah and Veenvva, untlpr Section 120-B, I. P. Code, read with Sections 408 and 477-A, Indian Penal Code. It was alleged that the 1st accused, who was a booking clerk of the Bezwada Town Booking Office, and the 2nd accused, who was a clerk in charge of the Bezwada Town Booking Office, entered into a conspiracy to commit breach of trust of railway funds and to commit other illegal acts. In the charge-sheet filed before the Joint Magistrate, it is stated:

That in pursuance of the conspiracy accused 1 and 2 committed criminal breach of trust of Rs. 68-9-0 being the proceeds of the sale of the following card tickets on the dates specified against each and thereby they committed an offence punishable under Section 408, Indian Penal Code.

and

"that in pursuance of the conspiracy accused 1 and 2 falsified the following records and thereby they committed an offence punishable under Section 477-A, Indian Penal Code.

[3] After the prosecution adduced evidence, the accused raised before the Joint Magistrate two preliminary objections

(i) that the charge-sheet filed by the Police in the case disclosed an offence punishable under Section 5 (2) of the Prevention of Corruption Act, 1947, and the said Act being a Special Act, it modified to that extent the Indian Penal Code and, therefore, the accused should be tried by a Special Judge in accordance with the Criminal Law Amendment Act of 1952 and (ii) that as one of the objects of the conspiracy was to commit a non cognisable offence under Section 477-A, Indian Penal Code, the Joint Magistrate could not take cognizance of the offence as the previous sanction of the prescribed authority under Section 196-A, Criminal Procedure Code, was not obtained.

[4] The Joint Magistrate disallowed both the objections. The above revision was filed against that order.

[5] Learned Counsel for the accused contends that, as the offence alleged to have been committed by the accused clearly falls under Section 5 (1) of the Prevention of Corruption Act (Act 2 of 1947) (hereinafter referred to as the Act) the prosecution cannot evade the provisions of that Act and charge the accused under Section 408, Indian Penal Code. The learned Public Prosecutor argues that an offence under Section 5 (1) (c) of the Act is different in content and scope from that under Section 408, Indian Penal Code and that, in any view by reason of the Criminal Law Amendment Act, the prosecution had the option to proceed at their discretion either under the Indian Penal Code. There is a large area of agreement between the contending Counsel but it is necessary to cover the entire field to appreciate the real bone of contention between them. At this stage, it may be convenient to read the provisions of the enactments relevant to the question raised before us.

Prevention of Corruption Act (Act 2 of 1947) : Section 2:

For the purposes of this Act 'Public Servant' means a public servant as defined in Section 21 of the Indian Penal Code.

Section 5:

(1) A public servant is said to commit the offence of Criminal misconduct in the discharge of his duty.

If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.

2. Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

3. In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession for which the accused person cannot satisfactorily account, of pecu