A public servant can be prosecuted under Section 5(3) of the Prevention of Corruption Act, 1947 without being prosecuted under Section 5(2) where the facts constitute offences punishable under both sub-sections (2) and (3) of Section 5 of the Act, as the legislature's omission to include offences under Section 5(3) in the list of offences requiring sanction under Section 6 indicates an intention to allow prosecution under Section 5(3) without prior sanction.

( 1 ) WHETHER a public servant can be prosecuted under Section 5 (3) of the Prevention of Corruption Act, 1947 (hereinafter REFERRED TO to as the Act) without being prosecuted under Section 5 (2) where the facts constitute offences punishable under sub-sections (2) and (3) of Section 5 of the Act ?". is the question which has come up for decision in this revision.

( 2 ) THE relevant facts in brief are thus : Profulla Roy, petitioner No. 1, is a private person, whereas Saroj Mohan Bhattacharya, petitioner No. 2, is working as an Assistant in the Ministry of Foreign Trade. They are alleged to have entered into a criminal conspiracy to obtain for themselves and/or for other public servants, gratification from various firms and others as a motive or reward for inducing by corrupt or illegal means or byexercising personal influence on public servants to do or to forbear to do official acts or to render or attempt to render service or dis-service to such firms through the concerned public servants in the office of the Chief Controller of Imports and exports, New Delhi. They are alleged to have given false assurances to various persons that they would get a favourable decision from Shri S. B. Gulati and Shri B. D. Bhattacharya, Officers of the office of Chief Controller of Imports and Exports by exercising their personal influence and obtained various amounts from them. Case against them was registered on the complaint that the petitioners had obtained illegal pecuniary advantages from certain firms on the pretext of arranging disposal of their applications pending in the office of the Chief Controller of Imports and Exports.

( 3 ) THEY were challaned under Sections 120-B read with Sections 162/163, Indian Penal Code, and Section 5 (3) of the Act, as well as under Sections 162/163, Indian Penal Code, read with Section 5 (3) of the Act. Necessary consent under sub-section (2) of Section 196-A of the Code of Criminal Procedure for the initiation of the Criminal proceedings against the petitioners for offences under Section 120-B, Indian Penal Code, read with Sections 162/163, Indian Penal Code, and under Section 5 (3) of the Act, was obtained.

( 4 ) THE Special Judge found a prima faciee case and framed charges under Section 120-B, read with Section 162/163 Indian Penal Cede, and Section 5 (3) of the Act and Section l62/163, Indian Penal Cede, and Section 5 (3) of the Act.

( 5 ) MR. B. R. Saini, learned counsel for the petitioners, contends that petitioner No. 2, who is a public servant, cannot be proceeded against since the facts disclose an offence punishable under Section 5 (2) of the Act lor which a sanction under Section 6 of the Act is required; and that by proceeding against him under Section 5 (3) of the Act the prosecution is acting mala fide in order to circumvent the provisions of Section 6 of the Act requiring sanction to proceed against the petitioner.

( 6 ) MR. R. L. Mehta, learned counsel for the State, contends that an offence under Section 5 (3) of the Act is distinct from the offence under Section 5 (2) of the Act and so it is not necessary to prosecute petitioner No. 2 under Section 5 (2) also. He further contends that in any case no sanction is required when a public servant is charged with the offence of commiting criminal conspiracy along with other offences. He further submits that at the time the offences were committed petitioner No. 2 was under suspension and so it was doubtful whether he was a public servant, and so was not prosecuted under section 5 (2) of the Act.

( 7 ) MR. Saini concedes that petitioner No. 2 was a public servant at the time the alleged offences were committed. Indeed, it is on this basis that Mr. Saini has raised the contention of petitioner No. 2 being liable to be prosecuted under Section 5 (2) of the Act. According to him, the facts disclose an offence either under clause (a) or under clause (d) of sub-section (1) of Section 5 of the Act.

( 8 ) THERE is no doubt that th