Back
Rajasthan High Court
Wanchoo C.J. & Modi, J.
State - Appellant
Versus
Gulab Singh - Respondents
Criminal Appeal No. 33 of 1953
Decided On : April 08, 1954
There is no express provision in the Prevention of Corruption Act repealing Sec. 409 I.P.C. as applicable to public servants and it is not possible now, after the amendment, to hold that the legislature ever intended by necessary implication to repeal sec. 409 I.P.C. even though the words of the amendment are not retrospective in nature. (Para 15)
Where an act or omission is an offence under two different laws, sec. 26 gives option to the prosecutor to prosecute under either of the two laws, with this limitation that no person would be punished twice for the same offence. In Emperor vs. Ram-nath (8) the act was not an offence under two enactments, but under two provisions of the same enactment, and sec. 26 of the General Clauses Act did not apply in the circumstances. In such a case, the view may be correct that where an act is an offence under two provisions of the same law, and one of them requires sanction while the other does not, and one applies more specifically than the other, the prosecution must be under the more specific one, or under the one requiring sanction. But where, the act is an offence under, two different enactments, sec. 26 gives option to the prosecutor to prosecute either under one or the other, and it is not open, for the court to say that the prosecution must be under that enactment which requires sanction. Sec. 6 of the Prevention of Corruption Act, which provides for sanction, mentions secs. 161 and 165 of the Indian Penal Code, but does not mention sec. 419 specifically, which shows that it was not the intention of the legislature to insist on sanction in cases against public servants under sec. 409. It is true that sanction was required by this section for offences under sec. 5(2), and that included the offence defined in sec. 5 (1) (c) which is exactly the same as the offence under sec. 409. Even so, if the option it in the prosecutor under sec. 26 of the General Clauses Act to prosecute under either enactment, it is not open to the court to insist that the prosecution must be under that enactment which requires sanction, and that it will not proceed to try the case under that enactment which does not require sanction. The position is now made crystal clear by the amendment to sec. 6 which we have quoted above. That amendment does not merely say that the provisions of sec. 5 shall be in addition to, and not in derogation of, any other law ; but it goes on further to say that nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him. This clearly means that if it was possible to institute any proceeding against a public servant without sanction for an act, which was an offences under any other law, the fact that the act was made an offence under this section would not exempt the public servant from prosecution under that law. (Paras 17 & 18)
2. The prosecution case was briefly this, Gulab Singh was a cashier in the Panchayat Office at Udaipur, and used to remain in charge of moneys relating to that office. The money used to be kept in a safe which was placed in the office of the Inspector of Schools for safe custody. The accused left for Jaipur on casual leave on the 29th May, 1952, with the permission of Sundernath, the then Officiating Panchayat Officer. He should have returned to duty on the 29th of May, but did not. He sent applications for extension of his leave time and again. This extension however was not granted, but as the address of the accused was not known, he could not be informed of this refusal. In the meantime, Sundernath was relieved by Krishna Vallabh as Panchayat Officer on the 31st May, 1952. Krishna Vallabh wanted the keys of the safe in order to count the cash. Sundernath said that the keys were with the accused who had not returned. Thereafter, orders were sought from the Chief Panchayat Officer at Jaipur, who replied that the safe might be broken up. Preparations were made to break open the safe on the 3rd July, 1952, in the presence of a gazetted officer. But on the same day, Harnathsingh, brother of the accused appeared, and produced four keys. The safe was opened with the help of these keys, and was found to contain Rs. 45/9/- only. There was thus a deficiency of Rs. 1,017-/9 according to the account books. Consequently, a report was made on the 4th of July, to the police that this amount had been embezzled by the accused. The accused appeared on the 13th of July, 1952, and immediately produced the money. The prosecution case thus is of temporary embezzlement from 24th May, 1952, to the 13th July, 1952.
3. The accused also put forward his defence on the 13th July, to which he has stuck throughout. He case was that there were two compartments in the safe. In one compartment, which is under single lock, small cash in kept. In the other compartment, which is under double lock, deposits of Pan-chayats above Rs. 500/- are kept. The key of this second of inner compartment is kept with the Panchayat Officer. Thus no money can be taken out of this second or inner compartment unless the cashier opens the safe, and the Panchayat Officer opens the inner compartment. The accused further said that orders had been received from Jaipur to send the amount relating to deposits there. Consequently, Sundernath, Panchayat Officer, took out the money from the inner compartment for purchase of a bank draft to be sent to Jaipur and gave it to him to take necessary steps. Sundernaths father was ill that day, and he went away from the office at 11 A.M. leaving instructions to the applicant to write out the necessary letters The applicant went with the letters to the house of Sundernath who then said that he could not counter-sign them and money not be sent. Sundernath asked the accused to go back saying that he was coming, and would put the money back in the safe. The accused went back to the office, and waited till 4 P. M., but Sundernath did not come. It was a Saturday, and the office was to close at 1 P.M. So he went after 4 P.M. to Sundernaths house, and asked him to arrange to put back the money in the safe. Thereupon, Sundernath gave him two keys which used to be kept by him, and told the accu-sed that the responsibility was his. As the accused could not put the money in the safe because the office was closed, and the chowkidar would not permit him to touch the safe, he went home and kept the money there. Thereafter he went away on leave. Later he applied for extension of leave from time to time. He denied that he had absconded. The accused also produced the document Ex.C-l which bears the date 24th of May. In that document he complained to the Panchayat Officer that he was overburdened with work, and also incident
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
