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HIGH COURT OF ALLAHABAD (LUCKNOW BENCH) (F.B.)
H.S. Chaturvedi, Randhir Singh, Mulla, JJ.
OM PRAKASH
Versus
STATE
Criminal Revision; Criminal Misc Application Appeal No: 141 of 1951; 454 of 1952 and 159 of 1953
Decided On : 23 December, 1954
The Court held that Section 5(1)(c) of the Prevention of Corruption Act, 1947 did not repeal Section 409 of the Indian Penal Code, 1860. The Court further held that the prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 was not hit by Article 14 of the Constitution of India. Lastly, the Court held that the prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 without the previous sanction of the appropriate authority was bad in law for want of previous sanction.
Fact of the Case:
Om Prakash, a Divisional Accountant in the Sarda Canal, Sitapur section, was entrusted with Government monies. On an inspection of the accounts by the Accounts Officer, it was discovered that certain sums of money amounting to Rs. 1,491/9/- had been embezzled by the applicant. He reported the matter to the officers of the canal department, who handed over the case to the police with the result that, after investigation, the applicant was prosecuted for offences under Section 409 and other sections of the Indian Penal Code. He was tried in the Court of Sri Abul Maqtadir, a Magistrate of the first class, Sitapur. At the trial, the applicant pleaded that he should have been prosecuted under the Prevention of Corruption Act 2 of 1947, and that the trial under the general law was, therefore, improper. The other plea raised was that the applicant could not be prosecuted without previous sanction of the Accountant General, and as no sanction had been obtained, it vitiated the trial.
Finding of the Court:
1. Section 5(1)(c) of the Prevention of Corruption Act, 1947 did not repeal Section 409 of the Indian Penal Code, 1860. 2. The prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 was not hit by Article 14 of the Constitution of India. 3. The prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 without the previous sanction of the appropriate authority was bad in law for want of previous sanction.
Issues: 1. Whether Section 5(1)(c) of the Prevention of Corruption Act, 1947 repealed Section 409 of the Indian Penal Code, 1860. 2. Whether the prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 was hit by Article 14 of the Constitution of India. 3. Whether the prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 without the previous sanction of the appropriate authority was bad in law for want of previous sanction.
Ratio Decidendi: 1. Section 5(1)(c) of the Prevention of Corruption Act, 1947 did not repeal Section 409 of the Indian Penal Code, 1860 because: a) There was no express repeal of Section 409 in the Prevention of Corruption Act. b) The Prevention of Corruption Act was intended to be a supplementary measure and not a replacement of the general law. c) The Legislature made its intention clear in the Prevention of Corruption (Second Amendment) Act, 1952 by adding Sub-clause (4) to Section 5 of the original Act, which stated that the provisions of the Prevention of Corruption Act were in addition to, and not in derogation of any other law for the time being in force. 2. The prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 was not hit by Article 14 of the Constitution of India because: a) The State could use either the general law or the special law at its discretion. b) The difference in procedure between the two laws did not amount to a denial of the equality of treatment. c) The advantage of a lesser punishment under the Prevention of Corruption Act was not of such a nature as to warrant a conclusion that the equality of law or the equal protection of laws was being denied to an accused prosecuted under the general law. 3. The prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 without the previous sanction of the appropriate authority was bad in law for want of previous sanction because: a) Section 6 of the Prevention of Corruption Act, 1947 barred the prosecution of a public servant under Section 409 of the Indian Penal Code, 1860 without a previous sanction. b) The rule of sanction was a valuable protection given to a public servant against irresponsible prosecution and it could not be evaded by the prosecuting authorities.
Final Decision: Revision dismissed.
H.S. Chaturvedi, J.
[1] I have had the advantage of reading the judgment of my learned brother, Mulla J.
[2] Om Prakash, who has come up in revision, was a divisional accountant in the Sarda Canal, Sitapur section, and in that capacity he was entrusted with Government monies. On an inspection of the accounts by the Accounts Officer, it was discovered that certain sums of money amounting to Rs. 1,491/9/- had been embezzled by the applicant. He reported the matter to the officers of the can at department, who handed over the case to the police with the result that, after investigation, the applicant was prosecuted for offences under Section 409 and other sections of the Indian Penal Code. He was tried in the Court of Sri Abul Maqtadir, a Magistrate of the first class, Sitapur. At the trial, the applicant pleaded that he should have been prosecuted and tried for an offence under Section 5(1)(c), Prevention of Corruption Act (2 of 1947) and not under the general law. The other plea raised was that the applicant could not be prosecuted without previous sanction of the Accountant General, and as no sanction had been obtained, it vitiated the trial. The defence plea found favour with the trial Court, who discharged the accused holding that the applicant should have been prosecuted under the Prevention of Corruption Act 2 of 1947, and that the trial under the general law was, therefore, improper, On behalf of the State the matter was taken up in revision and the learned Additional Sessions Judge who heard the revision held that the prosecution of the applicant under the provisions of Section 409, I.P.C., was quite valid. The result was that the Additional Sessions Judge directed the Magistrate to proceed with the enquiry of the case in accordance with law. Dissatisfied with the order, the applicant filed a revision to this Court. When the revision came up for hearing before a Division Bench of this Court, it decided to refer the case to a Full Bench in view of the importance of the questions involved in the case.
[3] The points that arise for consideration are three:
"(1) Whether Section 5(l)(c) of the Special Act 2 of 1947, 'pro tanto' repealed Section 409, I.P.C., in its application to" public servants.
(2) Whether Article 14 of the Constitution is infringed if the accused is tried under the general law.
(3) Whether the applicant could not be prosecuted for an offence under Section 409, I.P.C., without the previous sanction of the proper authority."
[4] The first question for determination is whether after the coming into force of the Prevention of Corruption Act of 1947, and so long as it was allowed to remain in force, Section 409, I.P.C., in so far as it related to offences by public servants stood repealed. Section 5(1) (c) is to the following effect:
"5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty,--
(a)" ...... ........ ........ ........ ........ (b) ...... ........ ........ ........ ........
(c)if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other persons so to do....."
The offence of criminal breach of trust as defined in Section 405 runs thus:
"Whoever, being in any manner entrusted with property, or with any dominion over property, - dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'."
The punishment for criminal breach of trust by a public servant is provided under Section 409, I.P.C.
[5] It would thus appear that the act of a public servant in dishonestly misappropriating or otherwise converting for
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