The offences under Section 161 of the IPC and Section 5(1)(d) of the PCA are not the same offence, and therefore Section 26 of the General Clauses Act does not bar the imposition of separate sentences.

JUDGMEMT - [His Lordships, after dealing with facto and point of law not material to this report, proceeded.] This takes us on to the last point raised by Mr. Rele who submitted that the award of sentence under both the counts was bad in law. In a nutshell, his arguments, which were mainly founded on section 26 of the General Clauses Act, were to the effect that a man cannot be punished twice for the same offence. In support of his submission, my attention was drawn to the ruling in Lohana Kantilal v. State1 and In re P.S. Aravmudha2. In both these cases the view taken seems to be that offences falling under section 161 of the Indian Penal Code and section 5 (1) (a) of the Prevention of Corruption Act are the same and, therefore, section 26 of the General Clauses Act would be a bar for awarding separate sentences. It was observed (at p. 32) by Ramaswami J. in In re P. S., Aravamudha's case, referred to above, that

"The essential ingredients of the offence under section 5 (1) (a) are the same as the ingredients of the offence under section 161, Indian Penal Code subject to one difference, viz., that the offence under section 5 (1) (a) is an aggravated form of the offence under section 161, Indian Penal Code. Repetition of the offence under section 161, Indian Penal Code would amount to the offence of criminal misconduct under section 5 (1) (a) of the Prevention of Corruption Act. It follows, therefore, that the charge framed against· the accused that he committed the offence under section S (1) (a) of the Prevention of Corruption Act necessarily implied that he had committed the offence punishable under section 161, Indian Penal Code. "

2. Proceeding further and referring to section 26 of the General Clauses Act, the learned Judge observes that separate sentences are illegal since there is only one act which constitutes an offence under the two enactments. With respect, I am unable to shall these views.

3. Section 26 of the General Clauses Act, 1897, which is the foundation for these views, runs thus:

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be Punished twice for the same offence."

The language of the section is clear and what is prohibited is the punishment for the same offence if it is covered by or falls under two different enactments. The primary question would be whether on the language of section 161, Indian Penal Code and section 5 (I) (a) of the Prevention of Corruption Act the offence is the same. This would necessitate a comparative reading of both the sections. Section 161, Indian Penal Code, penalises a public servant or one who expects to be a public servant for taking gratification other than legal remuneration in respect of an official act as a motive or reward for doing or forbearing to do any official act, whereas section 5 (1) (d), with which I am concerned, speaks of criminal misconduct by a public servant. The section divides the criminal misconduct into four categories and sub-sections (d) says that if a public servant, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person ant valuable thing or pecuniary advantage he is said to Commit the offence of criminal misconduct in discharge of his duty. It would be clear that this section does not envisage a miscreant who expects to be a public servant. It only contemplates the criminal misconduct of a public servant. Secondly, there is no element of reward or motive fordoing or forbearing to do any official act. If a public servant barely obtains any pecuniary advantage, he would be guilty of criminal misconduct, but if he commits such an act, he cannot be convicted under section 161 of the Indian Penal Code. These two essentials or factors distinguishing the two sections do not seem to have been taken into account in the

Click Here to Read the rest of this document