Section 5(1)(c) of the Prevention of Corruption Act, 1947 repeals Section 409 of the Penal Code in respect of offences committed by public servants.

Falshaw, J.

1. The circumstances giving rise to-this reference by the learned Ses. J. at Delhi, Criminal Revision 893 of 1949, are as follows. Gurcharan Singh respondent was formerly em- ployed as a Held Inspector in the office of the Custodian of Evacuees Probity & it is alleged that while acting in this capacity he misappro priated some evacuees property over which he had dominion. The casa was first registered as a result of report to the police on 2- 1- 948, & as a result of the investigation by the police Gur-charan Singh was arrested on 31 4 1948, & released on ail on the following day, the 1st of May. The chalan was actually put into the Court of a Magistrate on 23- 7-1948, under Section 409, Penal Code. On 18 8 1948, preliminary objections to the legality of the Courts proceeding with the trial were raised on behalf of the accused. These objections were primarily based on my decision in Cri. Revn. No. 191 of 1948 decided on 18-7 1948, in which I held that as long as the provisions of Section 5, Prtiveniion of Corruption Act, ACS II (2) of 1947, remained in force, Section 409, Penal Code, so far as it related to offences by public servants, stood repealed. In effect this decision meant that if a public servant was alleged to have com-mitted an offence which fell either under Section 409, Penal Code, or Section 5 (1) (c) Prevention of Corrup-tion Act, be could only be prosecuted under the latter section, & in tbat case the sanction of the appropriate authority mentioned in Section 6, Prevention of Corruption. Act, was necessary before any Court could take cognizance of the case. It is not disputed that for the case under Section 409, Penal Code, against Gurcharan Singh no sanc- tion of any authority had been obtained. The learned trial Magistrate rightly felt that he was bound by this decision, & he also rejected another ground on which it was contended on behalf of the Crown that the case could continue notwithstanding my decision. This contention was that at the time when the Court took cognizance of the case Guroharan Singh was no longer a public servant. It is in fact not in dispute that he was discharged from Govt. service on 8-5- 19(sic)8. i. e., on a date intervening between the date on which his bail application had been entertained & accepted & the da e on which the actual chalan was presented before the Court. The learned Magistrate, however, was of the opinion that he had taken cognizance of the case on the 1st of May when he applied his mind to the fact a of the case in dealing with the bail application of the accused. He therefore held that the case could not The Mate (Cr R. No. 779 of proceed without the 1950), in which inter alia sanction of the the effect of the Pre appropriate authority vention of Corruption Act mentioned in Section 6 of of 1947 on Section 409. Act 11 [2] of 1947 and he Penal Code, is therefore discharged the involved. accused on 15-11-1948. A

2. The first question revision petition was to be decided is whether filed on behalf of the it was correctly decided Crown in the Court of by me in Criminal Revn. the learned Sss. J., who, No. 191 of 1948 that as by his order dated 13-7- long as Section 6 of Act 1949, held that he was II (2) of 1947 remains in bound by my decision force Section 409 Penal regarding the section Code, pro tanto stands under which proceedings repealed as regards must be taken against the offences alleged to have accused, but at been committed by public the same time, after ser-vauta. This question considering the relevant obviously requires consi authorities, held that deration of the scheme & Gurcharan Singh was no purpose of Act II [2] of longer a public servant 1947, which came into when the trial Court took force on 11-3-1947. It is cognizance of the case & headed "An Act for the that therefore no more effective prevention previous sanction of bribery & corruption" & under Section 6, the opening words of the Prevention of Act itself are "whereas it Corrupti