The prosecution has the option to proceed against an accused under either of two enactments constituting the same act an offence, even if one of the enactments requires a sanction and the other does not.

CHAGLA, C.J.:- The accused was charged with having committed an offence under Section 409, Penal Code, in that in January 1951 while being in charge of the villages Harchori and Road Khandkar as a talati he committed criminal breach of trust in respect of Rs.101-6-0 by dishonestly misappropriating the amount and he failed to credit this amount into the Ratnagiri Sub-Treasury by 5-1-1951. The learned Judicial Magistrate, First Class, Ratnagiri, convicted the accused and sentenced him to one months simple imprisonment and a fine of Rs.100, in default simple imprisonment for 15 days.

The accused appealed to the Sessions Judge, Ratnagiri, and the learned Sessions Judge acquitted the accused on the preliminary ground that inasmuch as the accused was prosecuted without a sanction, the trial of the accused was bad and the order of conviction cannot stand. The State has come in appeal against the order of acquittal passed by the learned Sessions Judge.

2. The view taken by the Sessions Judge following a decision of this Court is that inasmuch as the facts disclosed by the prosecution constituted an offence both under Section 409, Penal Code, and also under Section 5 (2), Prevention of Corruption Act (2 of 1947), and inasmuch as under Section 6, Prevention of Corruption Act, a sanction was necessary before the prosecution could be launched, it was not open to the prosecution to evade the provisions with regard to sanction and prosecute the accused under Section 409, Penal Code.

Therefore, the very short question that we have to consider in this full bench is whether the passing of Act 2 of 1947 which requires a sanction makes it obligatory upon the prosecution to prosecute the accused under Act 2 of 1947 after taking the necessary sanction and the prosecution is prevented from prosecuting the accused under Section 409, Penal Code without a sanction.

3. The offence, as already pointed out, was alleged to have been committed on 25-1-1951. Act 2 of 1947 came into force on 11-3-1947 and there was an amendment to this Act by Act 2 of 1952 which came into force on 28-7-1952, and there was a second amendment to this Act 59 of 1952 which came into force on 12-8-1952. This amendment substituted S.5(4) in the original Act and the subsection provided:

"The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him".

The effect of this section came to be considered in a Full Bench of this Court in - State v. Sahebrao, AIR 1954 Bom 549 (FB) (A), and in that decision we pointed out that it was open to the State to prosecute a public servant under S.409 Penal Code, according to the procedure laid down in the Criminal Procedure Code, 1898, notwithstanding the special provisions contained in the Prevention, of Corruption Act 1947, and the Criminal Law Amendment Act, 1952.

In that case the offence was committed after Section 5 (4) came into force. In the case before us the offence was committed prior to the coming into force of the second amendment and the complaint was also filed on 18-8-1951, which was prior to the coming into force of Section 5 (4), and the question that arises is whether in the absence of Section 5 (4) the position in, law is different from what we laid down in the Full Bench decision.

4. This Full Bench has been necessitated by reason of the fact that a Division Bench of this Court in - Navla Samta v. The State, Cri Appln. No.94 of 1953 (Bom) (B), took the view that if one enactment constituting a certain act to be an offence required a sanction and another enactment constituting the same act also an offence did not require a sanction, it was obligatory upon the prosecution to proceed under the enactment which required a sanction, because the view was taken that if the prosecution did not do so, it would amount to evading the p