JUDGMENT - Chagla, C.J.

1. References Nos. 7 to 17 have been made to us by the learned Additional Special Judge, Poona, and the learned Additional Special Judge has taken the view in these references that the order of the learned Magistrate holding that he had no jurisdiction to try a case where a public servant was charged under Section 409, Penal Code, was not a proper order and it should be set aside and the case should be referred back to the learned Magistrate for trial. We have also a reference made by the learned Additional Sessions Judge, Thana, where he has taken the view that a committal order passed by the Magistrate is without jurisdiction and it should be quashed inasmuch as the Magistrate has dealt with a case against a public servant under Section 409 when he had no jurisdiction to do so.

2. The question that arises on these references is whether in view of Act 2 of 1947, the Prevention of Corruption Act, 1947, and the Criminal Law Amendment Act, 46 of 1952, it is open to the State to prosecute a public servant under Section 409 according to the procedure laid down in the Criminal Procedure Code, or whether the prosecution can only be instituted and conducted in the manner laid down in Act 2 of 1947 and Act 46 of 1952.

Now, Act 2 of 1947 was passed for the specific purpose of preventing corruption and Section 5 deals with the commission of certain kind of offences by a public servant, and Sub-section (1) (c) of that section provides that 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, it would be an offence falling under that section. Sub-section (2) of that section provides for punishment of offences falling under Section 5(1) and the punishment provided is imprisonment for a term which may extend to seven years or with fine, or with both.

Section 6 deals with the manner in which offences under this Act are to be investigated, and Section 6(1) requires a sanction with regard to the cognizance of offences punishable under Section 161 or 165, Penal Code, or under Sub-section (2) of Section 5 of this Act. Section 7 makes a person charged with an offence punishable under Section 161 or 165 or 165-A, Penal Code, or Sub-section (2) of Section 5 of this Act a competent witness for the defence.

The Criminal Law Amendment Act created certain new offences and Section 6 provided for the appointment of Special Judges and Section 7 made certain offences solely triable by these Special Judges, and among the offences are the offences which fall under Section 5(2), Prevention of Corruption Act. Section 10 provides that all cases triable by a Special Judge under Section 7, which immediately before the commencement of this Act were pending before any Magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases; and the view taken by the Magistrate in the references made by the Addi tional Special Judge at Poona and the Additional Sessions Judge, Thana, is that inasmuch as the offence with which the public servants were charged in these various cases fell within the definition of Section 5(1)(c), the only Court which could try them was the Court of a Special Judge appointed under the Criminal Law Amendment Act and these offences could only be tried after the requisite sanction was obtained.

It is true that an offence which falls under Section 409, Penal Code, would also fall under the offence enumerated in Section 5(1)(c), but the question that we have to consider is whether with regard to public servants the Legislature has abrogated the provisions of Section 409, Penal Code, and has provided that a public servant committing an offence under Section 409 can only be proceeded against under the Prevention of Corruption Act and the Criminal Law Amendment Act. In other words, could it be said, reading these two statutes which have been

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