RAGHUBAR DAYAL, J. :- Gopal Das Kapoor and another were committed to the Court of Session at Kanpur for trial of offences under Ss. 409 and 120B, Penal Code. The Sessions Judge added a charge under S. 477A, I.P.C., also against them. Both the accused are public servants.

2. On a petition under Art. 228 of the Constitution this case was transferred to this Court as it involved a substantial question of law as to the interpretation of the Constitution. We have heard the learned counsel for the petitioner and the learned Advocate General on the point and dispose of the constitutional point alone. Further proceedings in the case will be taken in the Court of the Sessions Judge.

3. Section 409, I.P.C., which punishes "criminal breach of trust" is in these words :

"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

4. Section 405, I.P.C., which defines "criminal breach of trust" is as follows :

"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 wilfully suffers any other person so to do, commits "criminal breach of trust"."

5. Section 5(1)(c), Prevention of Corruption Act, 1947 (Act No. 2 of 1947) is - "A public servant is said to commit the offence of criminal misconduct in the discharge of his duty 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 person so to do."

6. It would appear from the different provisions of the various sections quoted above that the act of a public servant in dishonestly misappropriating or otherwise converting for his own use any property entrusted to him or under his control as a public servant or in allowing any other person so to do will be an offence both under S. 5(1)(c) of Act 2 of 1947 and also under S. 409, Penal Code.

7. The offence under S. 5(1)(c) of Act 2 of 1947 is punishable under S. 5(2) of the same Act with imprisonment for a term which may extend to seven years, or with fine, or with both while the offence under S. 409, I.P.C., is punishable with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and the offender shall also be liable to fine.

8. In view of the absence of any provision in either of the two Acts laying the circumstances in which a public servant committing such an act would be triable under one Act or the other, it has been contended that the public servant prosecuted for an offence under S. 409, I.P.C., is in a worse position than another public servant who may just, according to the fancy of the authorities, be prosecuted for the offence under S. 5(1)(c) of Act 2 of 1947, that therefore S. 409, I.P.C., denies equality before the law to such persons who are prosecuted for an offence under S. 409. I.P.C. and not for an offence under S. 5(1)(c) of Act 2 of 1947, and that, therefore, the provisions of S. 409 in this respect violate the provisions of Art. 14 of the Constitution and should, therefore, be held void in view of Art. 13(1) of the Constitution.

The differentiation in the punishment provided for the same conduct in either of the two provisions of law is immaterial in view of S. 71, Penal Code, which provides that where anything which is an off