Hari Shankar, J.:— 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 is that capacity he was entrusted with Government monies. On an inspection of the amounts 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 Sec. 409 and ether sections of the Indian Penal Code. He was tried in the Court of Sri Abdul Muqtadir, 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 Sec. 5(1)(c) of the Prevention of Corruption Act (II 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 II 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 Sec. 409 of the Indian Penal Code 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. The points that arise for consideration are three:
(1) Whether Sec. 5(1)(c) of the Special Act II of 1947, pro tanto repealed Sec. 409, I.P.C in its application to public servants.
(2) Whether Art. 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 Sec. 409, I.P.C without the previous sanction of the proper authority.
3. 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, Sec. 409 of the Indian Penal Code in so far as it related to offences by public servants stood repealed. Sec. 5(1)(c) is to 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 person so to do………”.
4. The offence of criminal breach of trust as defined in Sec. 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 wilfully suffers any other person so to do, commits ‘criminal breach of trust’.”
5. The punishment for criminal breach of trust by a public servant is provided under Sec. 409, I.P.C
6. It would thus appear 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 is an offence both under Sec. 5(1)(c) of Act II of 1947 and also under Sec. 409, I.P.C
7. An examination of the scheme of Act II of 1947 will show that if a public servant is prosecuted under Sec. 5(1)(c) of the Special Act, the maximum punishment that can be awarded is only seven years. The accused has the right to appear in the witness box, and he cannot be prosecuted without previous sanction of the authority concerned. If, however, a public servant is prosecuted under the general law, the maximum punishment provided in Sec. 405 is transportation for life. No sanction is necessary for his prosecution and he cannot examine himself as a witness when standing his trial under Sec. 409, I.P.C It is argued that in view of the fact that certain privileges have been conferred on the accused by the Special Act a repeal of the general Act has been brought about by implication. In support of this contention reliance has been placed upon a Divisional Bench case of the Punjab High Court, State v. Gurcharan Singh A.I.R 1952 Punj. 89.. In that case Justice Falshaw took the view that in view of the changes introduced by Act II of 1947, Sec. 5(1)(c) repealed pro tanto Sec. 409 of the Indian Penal Code. With great respect for the decision I am unable to subscribe to the view enunciated in that decision. If the Legislature intended to repeal Sec. 409 of the Indian Penal Code it would have expressly said so in the special Act itself but there is no indication to that effect. There must appear some strong reason to suggest that the previous enactment which has not been expressly repealed by the subsequent Act stands repealed by implication. In this connection one may usefully refer to Sec. 5 of the Indian Penal Code which provides that the provisions of the Code shall remain unaffected by any special or local law. That being so, if the intention of the Legislature was to substitute Sec. 5(1)(c) of Act II of 1947 in place of Sec. 409 of the Indian Penal Code in relation to public servents, one would expect a specific provision to that effect in the special Act itself. In the absence of any such express provision it would be difficult to read any repeal by implication. The mere fact that under the special Act the accused have been given certain privileges which are not available to him under the general law will hardly be any good reason for inferring repeal by implication. The same act or omission may constitute an offence under one or more enactments. All that is required is that for the same act or omission a person shall not be prosecuted twice as laid down in Sec. 26 of the General Clauses Act of 1897, which runs as follows:—
“Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”
8. In view of this provision in the General Clauses Act, if an act constitutes an offence under two or more separate enactments, then the only restriction imposed by Sec. 26 of the General Clauses Act is that a person cannot be punished twice for the same offence. In other words, if a person has been punished under the Penal Code for an act or omission, then for that very act or omission he cannot again be tried and punished under the special law. It is implicit in Sec. 26 of the General Clauses Act that the two separate enactments clan exist side by side, although both of them make the same act punishable as an offence. With respect, I am unable to subscribe to the view enunciated in State v. Gurcharan Singh that Sec. 5(1)(c) of Act II of 1947 repealed pro tanto Sec. 409, I.P.C
9. The Punjab case has not been followed by other High Courts, and my learned brother Mulla, J. has referred to those cases. Suffice it to say that we find ourselves in agreement with the view taken in Bhup Narain Saxena v. State 1952 A.L.J 21. We are, therefore, of opinion that Sec. 5(1)(c) of the Prevention of Corruption Act of 1947 had not the effect of repealing Sec. 409 of the Indian Penal Code in its application to public servants.
10. Coming to the second question, the argument advanced by the learned counsel for the applicant was that if the prosecuting authorities are permitted to pick land choose and are given the option of choosing whether they should prosecute a public servant under the Special Act II of 1947 or under the general law, then it would create discrimination in the same class of public servants, which is against the spirit of Article 14 of the Constitution of India. The argument, though ingenious has little substance. Neither the General Law nor the special law has been assailed on the ground that they are of a discriminatory character. So far as the two enactments are concerned, they are good and are no hit by Article 14 of the Constitution. The so called discrimination complained of arises because, owing to existence of two valid enactments, the option rests with the prosecution agency either to prosecute a public servant under Sec. 409, I.P.C or under the Special Act II of 1947. If a public servant commits an offence of criminal breach of trust, he renders himself liable for prosecution either under Sec. 409, I.P.C or under Sec. 5(1)(c) of the Special Act. By virtue of Sec. 26 of the General Clauses Act, it becomes incumbent on the prosecution agency either to prosecute the public servant under the general law or under the special law. The Police Officer of the State, whose duty it is to exercise his discretion may even say that the case should not be prosecuted at all. The decisions of the prosecuting agency in matters like these cannot be treated as discriminatory acts so as to attract the provisions of Article 14 of the Constitution. If a case comes within the purview of either of the two Acts of the Legislature, and if the prosecution agency decides to prosecute a person under one of the Acts, his action will be quite proper and no exception can be taken to it on the ground that it is discriminatory. Any other view would create an anomalous position. A person prosecuted under the general law would say that he should have been prosecuted under the special law, and if a person is prosecuted under the special law he would say that he should have been prosecuted under the general law. The prosecution of a person does not depend upon his wish or whim, but on what the officer in charge of the prosecution thinks proper to do when any particular illegal act or omission is covered by more than one enactment. The discretion which a prosecuting officer is called upon to exercise is not an unguided discretion. He has to take into consideration the gravity of the offence and other matters, and if he finds that the facts disclose the commission of a serious offence for which the punishment provided under a Special Act is not sufficient, it is open to him to charge the accused under the general law where a more severe punishment is provided for the same kind of offence. Such exercise of a discretion will not contravene Article 14. In my opinion, therefore, the prosecution of the applicant under general law is not hit by Article 14 of the Constitution.
11. The third question that arises for determination is:—
“Whether the prosecution of the applicant under Sec. 409 is bad in law for want of previous sanction of the appropriate authority?”
12. When a public servant is prosecuted for an offence under Sac. 409 he is governed by the rules of procedure as contained in the Criminal Procedure Code. It is conceded that the ordinary procedure does not require the obtaining of any sanction for the prosecution of a public servant under Sec. 409. Learned counsel for the applicant has, however, relied upon Sec. 6 cl. (1) of the Special Act II of 1947 in support of his argument that a public servant cannot be prosecuted under Sec. 409, I.P.C also without previous Sanction. It is, therefore, necessary to set out clause (1) of Sec. 6 which runs thus:—
“No Court shall take cognizance of an offence punishable under Sec. 161 or Sac. 165 of the Indian Penal Code, or under sub-sec. 2 of Sec. 5 of this Act, alleged to have been committed by a public servant except with the previous sanction etc.”
13. A plain reading of it the words in the aforesaid section indicates clearly that a previous sanction is necessary only when a public servant is charged for an offence punishable under Sec. 161 or Sec. 165 of the Indian Penal Code, or when he is placed for trial for an offence punishable under sub-sec. (2) of Sec. 5 of the Prevention of Corruption Act. While mentioning Secs. 161 and 165 of the Indian Penal Code, the legislature could have easily incorporated Sec. 409 of the Indian Penal Code also in Sec. 6 but this was not done. It is, however, argued that Sec. 409 was not mentioned because the offence under Sec. 409 is the same as the offence under Sec. 5(1)(c) of the Prevention of Corruption Act. This argument does not appeal to me. If a person is prosecuted for an offence under Sec. 409, I.P.C he is punishable under that section, if the offence is proved, and not under sub-sec. (2) of Sec. 5 of the Prevention of Corruption Act. The words ‘punishable under sub-sec. (2) of Sec. 5’ occurring in clause (1) of Sec. 6 of the Prevention of Corruption Act do not mean or include an offence punishable under Sec. 409 of the Indian Penal Code. If a person is prosecuted under Sec. 409, he will be governed by the procedure prescribed in the Criminal Procedure Code which does not require the obtaining of previous sanction. The words ‘punishable under sub-sec. (2) of Sec. 5’ of the Prevention of Corruption Act postulate a situation when a public servant is prosecuted for an offence of criminal misconduct falling within (a), (b), (c) and (d) of clause (1) of Sec. 5 of the Special Act. It is only when a public servant is accused of any of these offences that his act becomes punishable under sub-sec. (2) of Sec. 5 of Act II of 1947. I find no sufficient justification for importing into clause (1) of Sec. 6 something which the legislature did not expressly include in that section. By omitting to mention Sec. 409, it is plain that the legislature intended that the provision for sanction as laid down in Sec. 6 of the Prevention of Corruption Act did not apply to an offence punishable under Sec. 409 of the Indian Penal Code. If the legislature has not chosen to include Sec. 409 within the ambit of Sec. 6 of the Special Act, it is not competent for a Court to extend the meaning so as to include Sec. 409 which is not there. It is a well recognised principle that a statute should be interpreted according to the plain meaning of the words and should not be given a wider meaning than what the words used would actually denote.
14. The rule about sanction as laid down in Sec. 6 of the Prevention of Corruption Act has no application when a public servant is prosecuted under the general law for an offence under Sec. 409, I.P.C which does not find place in that section. No question of any sanction arises in the case before us because the applicant is being prosecuted for an offence under Sec. 409, and the rules of Criminal Procedure do not require that a previous sanction of the appropriate authority is necessary.
15. I am, therefore, of opinion that the revision application should be rejected and the order of the learned Sessions Judge should be upheld.
16. Randhir Singh, J.— I have had the benefit of reading the judgments of my learned brothers Hari Shankar and Mulla, JJ. I entirely agree with the conclusions arrived at by my learned brothers on the first two points and 1 do not think I can make any useful contribution by discussing these points over again.
17. With regard to the third point, i.e, whether the applicant could not be prosecuted for an offence under Sec. 409 of the Indian Penal Code without the previous sanction of the proper authority, it has been argued on behalf of the applicant that even though Sec. 409 was not mentioned along with Secs. 161 and 165 of the Indian Penal Code in Sec. 6 of the Prevention of Corruption Act, (II of 1947) the words “an offence punishable under Sec. 161 or Sec. 165 of the Indian Penal Code or under sub-sec. (2) of Sec. 5 of this Act” show that the intention of the legislature was that the sanction of the proper authority should be obtained for an offence under Sec. 409 also as the acts and omissions which constituted the offence under Sec. 409 of the Indian Penal Code were also punishable under Sec. 5(2) of the Prevention of Corruption Act. Any act or omission is per se not an offence. It will be an offence only when it is made punishable by some law. If an act or omission is made punishable as an offence under two enactments, then the same act or omission is an offence under one enactment and also and offence under the other law. If a person therefor has done an act which constitutes an offence under Sec. 409 of the Indian Penal Code and also an offence punishable under Sec. 5(2) of the Prevention of Corruption Act, it would not be correct to say that the offence under Sec. 409 is punishable under Sec. 5(2) or vice versa, it is only an offence under Sec. 409 of the Indian Penal Code which is punishable under Sec. 409, and only an offence under Sec. 5(2) of the Prevention of Corruption Act which is punishable under Sec. 5(2) of chat Act. It would thus appear that an act is an offence only with reference to the particular section of a penal statute, but divorced from it, no act or omission could be called an offence. It would be difficult to call an act or omission an offence in general. A person is punishable under Sec. 5(2) only when he is charged with an offence under Sec. 5(2) of the Prevention of Corruption Act. If it is legitimately open to a prosecutor to prosecute a person under two laws for the same act or omission, and if he chooses to prosecute him under one law, the person so prosecuted cannot be convicted under the other law at the same time. The words “punishable under Sec. 5(2) of the Prevention of Corruption Act” used in Sec. 6 of the Prevention of Corruption Act do not therefore imply that Sec. 6 was meant to cover an offence under Sec. 409 also. If that was the intention of the legislature, Sec. 409 of the Indian Penal Code would also have been mentioned along with Secs. 161 and 165 of the Indian Penal Code in Sec. 6 of the Prevention of Corruption Act. This point arose for consideration before a Division Bench of this Court in Bhup Narain Saxena v. State and it was held that the provisions of the Prevention of Corruption Act were not intended to apply to sections not mentioned in Sec. 6 of the Prevention of Corruption Act. A similar view was taken in a Full Bench case of the Bombay High Court in the State v. Sahib Rao Govind Rao A.I.R 1954 Bom. 549.. The provisions of Sec. 6 of the Prevention of Corruption Act would not, therefore, be applicable to a prosecution under Sec. 409 of the Indian Penal Code. A trial under Sec. 409 of the Indian Penal Code will be regulated by the procedure laid down in the Code of Criminal Procedure. It is only if a prosecution is launched under Sec. 5(2) of the Prevention of Corruption Act that the special procedure prescribed under that Act will have to be observed and the Court shall not take cognizance of that offence in the absence of sanction obtained from the proper authority. I agree with the views expressed, with respect if I may say so, in the two cases referred to above, and am of opinion that the view taken by the learned Sessions Judge that no previous sanction was necessary was correct and I would dismiss the application for revision.
18. Mulla, J.:— Om Prakash, a Divisional Accountant of the Sarda Canal, Sitapur Section, was prosecuted under Sec. 409, I.P Code for committing criminal breach of trust in respect of certain items of money, which were entrusted to him in his capacity as a public servant. The Magistrate, who tried him, came to the conclusion that the offence committed, by the applicant fell under Sec. 5(1)(c) of the Prevention of Corruption Act (Act II of 1947) which is punishable under Sec. 5(2) and under Sec. 6 of the said Act a previous sanction of a proper authority was necessary for his prosecution, as he was a public servant. In the absence of such sanction, he held that he had no jurisdiction to proceed with the case and consequently he discharged the applicant.
19. The State went up in revision against the order of discharge and the learned Sessions Judge set aside this order of discharge holding that the provisions of the Prevention of Corruption Act (Act III of 1947) did not repeal the general law as contained in the Indian Penal Code and it was open to the prosecuting authorities to proceed against the applicant either under Sec. 409, I.P Code or Sec. 5(2) of the Prevention of Corruption Act. He further held that as no sanction was required under Sec. 409, I.P Code, the order of the Magistrate discharging the applicant was bad in law. He, therefore, directed the Magistrate to proceed which the inquiry and, if a case was made out against the applicant to commit him to the court of Sessions.
20. Om Prakash feeling aggrieved by the said order filed an application of criminal revision against it. He prayed that the order of the Sessions Judge be set aside and the proceedings against him be quashed under Sec. 561-A, Cr. P.C He supplemented this application in revision by another criminal Miscellaneous application later on in which he contended that the order of the Sessions Judge violated the provisions of Art. 14 of the Constitution of India and prayed that this court should withdraw the case against him under Art. 226 of the Constitution of India.
21. These two applications of Om Prakash were heard by a Bench of this Court. After hearing the counsel for Om Prakash, the Bench came to the conclusion that the questions raised in the case were of great importance and, as they would crop up frequently, they should be considered by a bigger Bench. They consequently referred it to a Full Bench.
22. We have to decide the following three questions in this case:—
1. Does Sec. 5(2) of the Prevention of Corruption Act (Act II of 1947) pro tanto repeal Sec. 409, I.P Code or is it open to the State to prosecute a public servant for committing Criminal breach of trust under Sec. 409, I.P Code?
2. If a public servant is prosecuted under Sec. 409, I.P Code, does such prosecution amount to an act of discrimination within the meaning of Art. 14 of the Constitution of India, as it denies to him the equality before the laws or the equal protection before the laws?
3. Can any court take cognizance of an offence punishable under Sec. 409, I.P Code when committed by a Public Servant without the previous sanction of the authority competent to remove such public servant from office or is it barred by Sec. 6 of the Prevention of Corruption Act (Act II of 1947)?
Question No. 1.
23. It was argued by the learned counsel for the applicant that the offence punishable under Sec. 409, I.P Code when committed by a Public Servant is the same which is defined in Sec. 5(1)(c) of the Prevention of Corruption Act. He contended that the Prevention of Corruption Act was a self-contained enactment with its own procedure and penalties. It was enacted for dealing with a particular class of offenders, namely the public servants and, though the legislature has not expressed itself explicitly a repeal of the general law relating to the said offence committed by public servants, can clearly be inferred by implication. Reliance was placed on a Bench decision of the Punjab High Court (The State v. Gurcharan Singh).
24. In deciding this question the first point that arises for decision is whether the offence punishable under Sec. 409, I.P Code, when committed by a public servant, is identical with the offence of criminal misconduct, as defined in Sec. 5(1)(c) of the Prevention of Corruption Act or not. Sec. 409, I.P Code runs as follows:—
“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.”
25. Criminal breach of trust is defined in Sec. 405, I.P Code. It reads 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 that 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’.”
26. Sec. 5(1)(c), Prevention of Corruption Act (Act II of 1947) is as follows:—
“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 to his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.”
27. From a perusal of these sections, we find that the definition of criminal breach of trust in Sec. 405, I.P Code is a little wider than the definition of criminal misconduct in Sec. 5(1)(c) in the Prevention of Corruption Act, but this is due to the fact that when defining it in the Indian Penal Code, the authors of the Code had to frame a definition which would apply to all persons to whom an entrustment could be made in the normal transactions of life and they had not the public servants alone in their minds. Still there are two minor changes which theoritically make the scope of Sec. 5(1)(c) of the Prevention of Corruption Act a little wider than criminal breach of trust, as defined in Sec. 405, I.P Code. The word “fraudulently” has been added to “dishonestly” and “wilfully suffers any other person” has been changed to “allows any other person”. The first addition, in our opinion, hardly makes any difference, but the second change is not absolutely negligible. It lightens the burden of proof for the prosecution in such a case. Still inspite of these changes an offence under Sec. 5(1)(c) of the Prevention of Corruption Act is almost identical with an offence under Sec. 409, I.P Code when it is committed by a public servant. They are two circles, which not only enter into each other, but almost entirely cover each other. The masks may be slightly different, but the face behind the mask is the same. It is almost impossible to imagine an offence committed by a public servant, which would be punishable only under one of these sections and not under the other. We, therefore, find that for all practical purposes they are one and the same offence.
28. It cannot be denied that the State has the right to make a certain act or conduct punishable under a new enactment, which is already penal under an existing law. It is, however, contended that when the State frames such a new law it “pro tanto” repeals the earlier law. This contention, when analysed, means this, that two laws under which the same act or conduct is punishable cannot co-exist together. In support of this contention reliance is again placed on the Punjab decision quoted above. The learned Judges who gave that decision, relied on certain opinions expressed by Craies and Maxwell. These opinions were however, given prior to the enactment of the English Interpretation Act of 1889. They are inconsistent with Sec. 33 of the said Act which reads as follows:—
“Where an act or omission constitutes an offence under two or more acts, or both under an act and at Common Law, whether any such act was passed before or after the commencement of this Apt, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at Common Law, but shall not be liable to be punished twice for the same offence.”
29. This section is similar to Sec. 26 of the General Clauses Act, which reads:—
“Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.”
30. These two sections visualize that the same act may be punishable not only under two laws but even under a greater number of laws. If the contention of the applicant is sound, it would mean that Sec. 26 of the General Clauses Act is a dead letter and can never be used. A number of other High Courts have disagreed with the view expressed in the Punjab decision cited above. They have given convincing reasons, which we need not repeat in coming to the conclusion that two laws under which the same act or omission is punishable can co-exist side by side. We approve these decisions. They are:—
(Bhup Narain Saxena v. State), (Satya Narain Murti in re.4), (Mohammad Ali v. State A.I.R 1953 Cal. 681.), (Madho Prasad v. State A.I.R 1953 M.B 139.), (State v. Galab Singh A.I.R 1954 Raj. 211.), and (State v. Saheb Rao Govind Rao Jadhav).
31. In our opinion where a new law makes an act punishable, which is already penal under an existing law and there is nothing in the latter enactment, which either expresses or implies that the operation of the earlier law is excluded, an offender can be prosecuted and punished under either of the two enactments. The earlier law will not be put out of operation merely because there is some change in procedure or some difference in penalties. The effect of the new enactment is to add a remedy and not to repeal the former remedy.
32. The Prevention of Corruption Act has not expressly repealed any of the provisions of the Indian Penal Code. Is there anything in the Act from which a repeal by implication can be inferred? It is contended that because the new law is self-contained and has been enacted to deal only with one particular class of offenders namely the public servants with its own procedure and punishment, it can be inferred that the legislature intended to use only this law when an offence which was punishable under this Act was committed by a public servant. It is difficult to understand why the legislature did not express itself clearly if such was its intention. Again a repeal by implication can only be inferred, if it is consistent with the object and purpose which necessitated the new enactment. But where it is in direct conflict with this object and purpose it is impossible to infer such an intention. The Prevention of Corruption Act is, what may be described as an Emergency Law. The emergency arose because bribery and corruption had become rampant in public services. This was a grave menace to healthy administration and effective measures were needed to root out this evil. The existing law was found insufficient to cope with the situation. The intention of the legislature clearly was to arm the State with a more drastic remedy than the one which existed. Keeping this intention of the legislature in mind, is it conceivable that they will make such provisions in the new enactment, which will soften instead of tightening the existing law and which will reduce the punishment instead of enhancing it? The preamble of the Prevention of Corruption Act clearly indicates that the intention was to take more effective measures against bribery and corruption, and yet, if the contention of the counsel for the applicant is sound, they not only made changes in the procedure to the advantage of the accused, but also reduced his punishment. Under Sec. 5(2) of the Prevention of Corruption Act the maximum punishment which can be awarded to a public servant for committing criminal misconduct, is seven years. Can it be possible that although an Emergency Law was being enacted against the public servants in order to deal more strictly with them, yet the legislature wanted to treat them as their special favourites and while a banker, a merchant, a factor, a broker, an attorney or an agent may be sentenced to transportation for life for committing criminal breach of trust under Sec. 409, I.P Code, a public servant who might have embezzled anormous sums, was liable to punishment only under Sec. 5(2) of the Prevention of Corruption Act and could not be given a heavier sentence than 7 years. Did the legislature think that the existing law took too grave a view of the offence of criminal breach of trust committed by a public servant and really it was a much lighter offence which stood on the same footing as a similar offence committed by a clerk or servant and which is punishable upto seven years only under Sec. 409, I.P Code? It cannot be doubted that criminal breach of trust is a major offence and when it is committed by a public servant, it assumes its gravest aspect. If the legislature really intended that public servants should not be awarded a greater punishment than seven years, such an intention would not only be in conflict with their declared intention in the preamble of the Act, but defeats the very purpose which necessitated the new enactment. It would not only amount to an act of discrimination in favour of the public servants without any reasonable basis, but would also violate one of the basic principles of criminal justice, namely “The graver the offence, the higher should be the punishment”. It is unbelievable that on the one hand they considered the punishment for an offence under Secs. 161 and 165, I.P Code inadequate and enhanced it, on the other hand, they found the punishment for criminal breach of trust committed by a public servant excessive and reduced it. But if the intention of the legislature was not to repeal Sec. 409, I.P Code, all these questions and doubts are immediately set at rest and all these incongruities fade out. We are, therefore, of the opinion that the Prevention of Corruption Act was intended to be only a supplementary measure and there is no substance in the contention that it repealed Sec. 409, I.P Code by implication.
33. Perhaps, because these doubts were entertained, the legislature made its intention clear in the Prevention of Corruption (Second Amendment) Act (Act II of 1952) by adding sub-clause (4) to Sec. 5 of the original Act. It reads:—
“The provisions of this section shall be in addition to, and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding, which might, apart from this section, be instituted against him.” The Supreme Court has also maintained the conviction of a public servant under Sac. 409, I.P Code, which clearly shows that Sec. 409 does not stand repealed (Mangleshwar Prasad v. State of Bihar A.I.R 1954 S.C 715.).
34. Out answer to the first question is, therefore, in the negative and in our opinion it is open to the State to prosecute a public servant for committing criminal breach of trust under Sec. 409, I.P Code.
Question No. 2.
35. As both the laws are good and in force, it naturally follow that the State in its discretion can use either of them. The question, therefore, arises that this option of choosing whether a prosecution should be under the general law or the special law offends against Art. 14 of the Constitution or not? Does it not give a discretionary power to the State which may at its sweet will be employed to the detriment of an accused person by discriminating amongst the same class of public servants and thus depriving him of the equality of treatment in like circumstances and conditions to which he is entitled? Firstly, the general law of the State can not be ousted unless there is some indication, either expressed or implied, in the Special Law that it is repealed or modified, or there is some inherent conflict between any of its provisions and the principles and rights laid down in the Constitution of India. Secondly, in our opinion, the State cannot be completely divested of a right to exercise discretion. Every exercise of discretion is not an act of discrimination. It becomes an act of discrimination only when the person against whom that discretion is exercised faces certain appreciable disadvantages, which he would not have faced otherwise. All that Art. 14 of the Constitution of India guarantees is a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform and merely some difference in the two procedures will not amount to a denial of the equality of treatment. The real test is whether the two procedures differ to such an extent that a prosecution under Sec. 409, I.P Code will deprive the accused of certain appreciable advantages and he will face certain handicaps in defending himself, which he would not have faced if he had been prosecuted under the Prevention of Corruption Act.
36. The learned counsel for the applicant has pointed a very rosy picture of the advantages that are conferred on an accused person under the procedure laid down by the Prevention of Corruption Act. If his contention is to be accepted, it would mean that the legislature, instead of passing a more effective measure against the public servants, really enacted the new law for the benefit of the public servants so that they may foe protected against the rigorous of the General Law. He has presented every change in the procedure in the garb of an advantage. He enumerated five of these advantages which are:—
1. The maximum punishment under Sec. 409, I.P Code is transportation for life, whereas the maximum punishment which can be awarded under Sec. 5(2) of the Prevention of Corruption Act is only seven years' rigorous imprisonment or fine. The accused is thus liable to a lesser penalty.
2. The accused will not be tried by a Magistrate but by an experienced Judge.
3. The investigation of the case will be conducted by a senior and responsible police officer and this will be a safeguard against questionable evidence being produced against him.
4. The accused will have a right to appear as a witness and give his statement on oath.
5. The accused cannot fee prosecuted without the sanction of a proper authority and this would protect him against a vexatious and irresponsible prosecution.
37. The moment these alleged advantages are analysed, they are found to be more hypothetical than real. Some of them instead of being an advantage, really turn out to be a disadvantage.
38. Only two advantages stand out, namely the liability to a lesser punishment and the necessity of a previous sanction. The first advantage arises only if the general law is held to be repealed. Secondly a punishment is not a part of procedure, but only a penalty. Merely because the punishment is less, an accused secures no advantage in defending himself. It does not affect the course of the trial at all. Thirdly, even if it is an advantage it is not of that nature which will characterise the trial under the General Law as an act of discriminatory treatment. Where a certain act is punishable under more than one enactment the extent of Punishment generally varies and the accused cannot claim as a right to be tried under that law under which only the lesser punishment can be inflicted upon him, and if it is not done he cannot raise the cry of discriminatory treatment. Lastly, if it is held that it amounts to an act of discriminatory treatment, then it is not the General Law which will stand ousted, but the Prevention of Corruption Act will itself become a piece of discriminatory legislation, because for the purpose of punishment it has created a classification, which is not based on any reasonable ground and it is not only in conflict with the object sought to be attained, but is against all principles of equity and justice.
39. We now come to the last advantage, namely the necessity of a previous sanction. There can be no doubt that it is an appreciable advantage. In fact it is the only advantage in the new procedure laid down by the Prevention of Corruption Act. The question arises whether it amounts to such an advantage that a person, who is being prosecuted under the General Law, can legitimately complain that he is being denied the equality of law and a discriminatory treatment is being extended to him. In our opinion, this advantage is not of that nature and magnitude. It does not place the accused in a more advantageous position for defending himself and meeting the charge. Moreover, the question of discriminatory treatment cannot be decided by a stray advantage here and a stray disadvantage there. It is the over-all picture that counts. We have to take the two procedures as a whole and not a particular provision of any procedure. This over-all picture presents no marked features of an advantage in one and disadvantage in the other. There is a dissimilarity in procedure but the accused is not denied the benefit of a fair and normal trial under the General Law. Where the act of discrimination consists only in using another law which is good and in force and which creates no added difficulties or hardships for an accused, it may be objectionable on other grounds, but it cannot be described as a discriminatory treatment within the meaning of Article 14 of the Constitution of India. Moreover, if the interpretation of Sec. 6 of the Prevention of Corruption Act, which I will give under the third question, is correct, this disadvantage does not exist at all. We, therefore, find that the difference between the two procedures is not of that character which should warrant a conclusion that the equality of law or the equal protection of laws is being denied to an accused, if he is prosecuted under the General Law.
40. There is another aspect, which makes Art. 14 of the Constitution of India inapplicable to the present case. Proceedings against the applicant were started in 1949 and the Constitution came into force on 26th of January, 1950. These proceedings, therefore, cannot be challenged on the ground of discrimination, because retrospective effect cannot be given to the provisions of the Constitution (Syed Kasim Rizvi v. State of Hyderabad A.I.R 1953 S.C 156.).
41. While dealing with this question, only one decision was cited before us, in which this point was raised and decided. That decision is reported in (Gopal Dass v. State A.I.R 1954 All. 80.). In that case the learned Judges held the prosecution of a public servant under Sec. 409, I.P Code does not go against Art. 14 of the Constitution of India. We approve their decision, but with great respect to them, we are unable to accept their reasoning. In that case probably the question of sanction was not raised and they only discussed the difference of punishment. In their opinion the difference of punishment was immaterial in view of Sec. 71, I.P Code. They observed:—
“For such conduct which could lead to a charge both under Sec. 409, I.P Code and under Sec. 5(1)(c) of Act II of 1947, the offender will be punished within the lower limit provided for either of the two offences.”
42. We find it difficult to accept this interpretation of Sec. 71, I.P Code. The relevant portion of Sec. 71, I.P Code reads as follows:—
43. The offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.”
44. In our opinion Sec. 71, I.P Code is not applicable to a case where the charge is only under one offence. It also does not restrict the extent of punishment to the lower limit provided for either of the two offences. It merely protects an accused against the multiplicity of punishment and if his act falls within two or more separate definitions of any law in force, it limits the punishment to the maximum term which could be awarded to him for any single offence. This means that if his conduct amount to an offence within the meaning of two different penal laws, one of which is punishable upto five years and the other is punishable upto seven years, he cannot be awarded a punishment of more than seven years, for then it would amount to punishing him twice over for the same offence. We, therefore, find that Sep. 71, I.P Code is not a bar to punishing a public servant under Sec. 409, I.P Code to more than seven years.
45. Our answer to the second question is also in the negative.
Question No. 3.
46. We have now to see, whether any rule of procedure laid down in the Prevention of Corruption Act affects or modifies any part of the procedure to be followed under the General Law or not. Normally the procedure laid down in a special law is meant to apply to the trial of offences under that enactment alone. But if there is a clear direction, express or implied, it can apply also to other existing procedures. Where the same act is an offence both under the general law and the special law, and the special law containing a different procedure was enacted later, it is not improbable that the legislature should make some rule of the new procedure applicable to the existing procedure also. We have, therefore, to interpret Sec. 6 of the Prevention of Corruption Act to find out if it contains any such expressed or implied direction. Sec. 6 reads as follows:—
“(1) No Court shall take cognizance of an offence punishable under Sec. 161 or Sec. 165 of the Indian Penal Code (XLV of 1860) or under sub-sec. (2) of Sec. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,
..….….….….….
(c) in the case of any other person, of the authority competent to remove him from his office.”
47. From a reading of this section, it is clear that an express direction is given that no Court shall take cognizance of an offence punishable under sub-sec. (2) of Sec. 5 of the Prevention of Corruption Act, except with the previous sanction of a proper authority. There can be no doubt that an offence defined in Sec. 5(1)(c) of the Prevention of Corruption Act is punishable under sub-sec. (2) of Sec. 5 of the said Act. We have already held in the first part of this decision that an offence under Sec. 409, I.P Code when committed by a public servant is the same offence which is defined in Sec. 5(1)(c) of this Act. Is it open to the prosecuting authorities to prosecute a public servant for an offence defined in Sec. 5(1)(c) and punishable under Sec. 5(2) without obtaining the necessary sanction, merely by giving it a different lebel? The answer depends upon the interpretation of the words “An offence punishable under sub-sec. (2) of Sec. 5”. Is their range limited to an offence prosecuted as “criminal misconduct” do they include the illegal acts or omissions defined and made, punishable as “criminal misconduct” or if the legislature intended the first meaning, it could very easily have used the word ‘prosecuted’ in place of ‘punishable’. The use of the word ‘punishable’ in my opinion extends their range and indicates that the second meaning was intended.
48. In Halsbury's Laws of England, under the heading “Principles of Criminal Liability” “Crime” is defined as follows:—
“A crime is an unlawful act or default, which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment.”.
49. In Criminal Procedure Code ‘Offence’ is defined in Sec. 4(o) as follows:—
“Offence means any act or omission made punishable by any law for the time being in force……..”
50. From these definitions, it appears that an unlawful act or omission is per se punishable under one or more laws and the subsequent prosecution is merely a step to bring home this liability to the offender under any existing procedure. In other words, it is the illegal act or omission which is primarily punishable and the penal section of any particular statute is merely a name under which it is prosecuted before a court of law for that purpose. What is punishable is not the name given to it by any section of a penal statute, but the offence defined in that section. The test that an offence is punishable under Sec. 5(2) is whether that act or omission has been made penal under any clause of Sec. 5(1) or not. Therefore, what is liable to be punished under it is the offence defined in any of the clauses (a), (b), (c) and (d) of Sec. 5(1). If an offender commits an illegal act or omission defined in Sec. 5(1)(c) he is liable to be punished under Sec. 5(2) and this liability cannot be affected merely because the State evades to prosecute him under that section.
51. I could find only one decision in which the word ‘punishable’ is defined. It is an old Bench decision of the Allahabad High Court (7 Allahabad 67, Kandhalia). Duthoit, J. defined ‘punishable’ as follows:—
“Punishable must mean that the commission or omission of the act, the commission or omission of which is prohibited and renders the person who commit or omits it liable to the sanction of law, i.e to punishment.”
52. Applying this definition to the present case it would mean that any commission or omission of an act which renders the person who commits or omits it liable to the sanction of law as embodied in Sec. 5(2) is punishable under Sec. 5(2) of the Prevention of Corruption Act.
53. It cannot be disputed that the moment a public servant commits criminal breach of trust in respect of property entrusted to him in that capacity, he is liable to be prosecuted under Sec. 5(2) Prevention of Corruption Act. Does he also become liable to be punished under Sec. 5(2) at the same time? Two answers can be given to this question:—
1. If he is liable to be prosecuted under Sec. 5(2), it naturally follows that he is also liable to be punished under that section.
2. He is liable to be prosecuted under Sec. 5(2), but he would become liable to be punished under that section only if he is so prosecuted.
54. The first answer would foe correct, if the two liabilities are really parts of the same liability and arise simultaneously. The second answer would be correct, if they are two different liabilities, which follow each other and the second arises only after the first is incurred. I think that the first answer is correct, because in my opinion a liability to be prosecuted includes a liability to foe punished. The two liabilities cannot be divorced and separated for the second liability is the necessary corollary of the first. One cannot exist without the other. It cannot be maintained that an offender is liable to be prosecuted for an offence but not liable to be punished for it. It is difficult for me to conceive that although the first liability arose immediately, the second would arise at a later stage. If a person wilfully kills another person, he immediately becomes liable to be prosecuted and punished under Sec. 302, I.P.C even though the crime might not be traced and he may never be prosecuted. Similarly, where an act or omission falls under the definition of more than one offence, the offender is liable to be prosecuted and punished under any of those offences as soon as the crime is committed. The moment a public servant commits criminal breach of trust, he is liable to be prosecuted and punished both under Sec. 409, I.P Code and Sec. 5(2), Prevention of Corruption Act. Merely because he is also liable to be punished under Sec. 409, I.P.C his liability to be punished under Sec. 5(2) is not kept in abeyance. In my opinion the language of Sec. 26 of the General Clauses Act is clear on this point. It visualizes the possibility of a person incurring the liability of being prosecuted and punished for two or more offences at the same time even before it is determined as to which offence will be changed against him. Surely this liability of being prosecuted and punished under Sec. 5(2), Prevention of Corruption Act, which arose as soon as the offence was committed, will not disappear merely because subsequently a different label was given to that offence and the offender was tried under Sec. 409, I.P.C for it is the offence which is punishable and not the label, which screens the offence. The question which is to be answered is not whether an offence charged under Sec. 409, I.P.C is punishable under Sec. 5(2), Prevention of Corruption Act or not. The question is whether the offence, which is defined in Sec. 5(1)(c), but for which the prosecution is launched under Sec. 409, I.P.C is also punishable under Sec. 5(2) or not. In my opinion only one reply can be given to this question and that is in the affirmative. The same conclusion is reached if an answer is given to a question put from the opposite angle. The question is “Can it be said that an offence defined in Sec. 5(1)(c) is not punishable under Sec. 5(2)? I think that the correct answer to this question is that it is punishable.
55. Again, in my opinion if a distinct and significant meaning emerges from the language of a statute it cannot be ignored. Sec. 6 directs that no court shall take cognizance of an offence punishalble under sub-sec. (2) of Sec. 5 of Prevention of Corruption Act alleged to have been committed by a public servant. This sentence can be broken up in two parts:—
56. No court shall take cognizance of
(a) An offence punishable under sub-sec. 2 of Sec. 5,
(b) Alleged to have been committed by a public servant.
57. If these two parts are read together they give a distinct meaning. They lay down an equitable principle to be followed in the trial of public servants. They cannot foe read together if “an offence punishable under Sec. 5(2)” means only an offence prosecuted under Sec. 5(2) for only a public servant can commit such an offence. The second part becomes unnecessary and meaningless. But if an offence punishable under Sec. 5(2) means an offence defined in Sec. 5(1), the words of the second part become full of meaning. They lay down a rule that if an illegal act or omission has been made an offence under some other law which can be committed by others also but when committed by a public servant becomes punishable under Sec. 5(2) then the prosecution cannot be launched against him under the other penal statute unless the necessary sanction is obtained. I see no adequate reason why the two parts should not foe read together and the second part should be read only with “an offence punishable under Sec. 161, I.P.C” and not with “an offence punishable under Sec. 5(2)”. If that was the intention of the legislature, the second part would have found a place immediately after “An offence punishable under Sec. 161” in Sec. 6, Prevention of Corruption Act. In my opinion if the words of a statute are capable of being interpreted in two ways, one of which creates an inequity and the other removes it, the interpretation which removes the inequity should be preferred. Of course if the words are incapable of giving that meaning it cannot be imported. I think the interpretation that I have given above is not an imposition on the words of Sec. 6.
58. I, therefore, hold that an offence defined under Sec. 409, I.P Code, when committed by a public servant being the same offence as criminal misconduct defined in Sec. 5(1)(c) of the Prevention of Corruption Act, is an offence which is also punishable under Sec. 5(2) of the said Act. It naturally follows that Sec. 6 of the Prevention of Corruption Act will be a bar to the prosecution of a public servant under Sec. 409, I.P Code, if the necessary sanction is not there.
59. The learned Additional Government advocate contends that the language of Sec. 6, Prevention of Corruption Act clearly implies that it was not the intention of the legislature to insist on sanction in the case of a public servant under Sec. 409, I.P Code. He concedes that a prosecution cannot be launched against a public servant under Secs. 161 and 165, I.P Code without a previous sanction but the very fact that these two sections are specifically mentioned in Sec. 6, Prevention of Corruption Act, while Sec. 409, I.P Code is not mentioned, is according to him a conclusive proof that Sec. 6 was never meant to operate as a bar to the prosecution of a public servant under Sec. 409, I.P Code without a previous sanction. He relies upon the observations of the learned Judges in two decisions (Bhup Narain Saxena v. State and State v. Gulab Singh). In the Allahabad decision the learned Judges observed as follows:—
“We may also point out that Sec. 6, Prevention of Corruption Act provides that the rule as regards sanction shall apply to a case under Sec. 161 or 165, I.P Code. Neither Sec. 6 nor Secs. 4 and 7 make any mention of any other sections of the Penal Code and if the accused is therefore, not charged under Sec. 161 or 165, Penal Code, but under certain other sections of the Penal Code, it cannot be said that to these sections also the provisions of the Prevention of Corruption Act were intended to apply.”
60. Similarly, in the Rajasthan decision the learned Judges Observed as follows:—
“Sec. 6, Prevention of Corruption Act which provides for sanction mentions Secs. 161 and 165, Penal Code but does not mention Sec. 409 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 is in the prosecutor under Sec. 26, 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.” It appears from the two extracts quoted above that the opinion of the learned Judges, who gave these decisions was mainly influenced by the fact that while Secs. 161 and 165 are mentioned in Sec. 6, Prevention of Corruption Act, it does not specifically mention Sec. 409. They seem to be of the opinion that if the legislature intended to bring Sec. 409 within the orbit of Sec. 6, there seems to be no reason why it did not include it amongst the offences specifically mentioned in that section. It escaped their consideration that there can be a good reason why Secs. 161 and 165 were mentioned and Sec. 409 was not mentioned. The offence of criminal misconduct as defined in Sec. 5(1), Prevention of Corruption Act does not include the offence defined in Sec. 161 or 165, I.P.C but it fully includes an offence under Sec. 409 when committed by a public servant. It was therefore, not necessary to mention Sec. 409 specifically as it would have amounted to a mere repetition. The legislature did not want to make any invidious distinction between members of the same class, i.e the public servants and it wanted to extend the same treatment to all of them. It was, therefore, necessary to mention Secs. 161 and 165 specifically, for an offence under these sections is not punishable under Sec. 5(2), Prevention of Corruption Act. The offences defined in Secs. 5(1)(a) and 5(1)(b) are different from the offences defined in Secs. 161 and 165, I.P Code. It is only a person who accepts or obtains illegal gratification habitually and not a first offender who commits the offence of criminal misconduct. It was therefore, necessary to specifically mention Secs. 161 and 165, I.P Code in Sec. 6, Prevention of Corruption Act, if a uniform treatment was to fee extended to all public servants. It is inconceivable that, while on the one hand the legislature was willing to extend the operation or Sec. 6, Prevention of Corruption Act to the procedure laid down under the General Law for the trial of such offences which do not come under the definition of criminal misconduct in order to remove a dissimilarity of treatment, yet on the other hand it would voluntarily create a dissimilarity of treatment by excluding from its operation an offence which is completely included in the defintion of criminal misconduct and which is punishable under Sec. 5(2), Prevention of Corruption Act. I cannot treat the rule of sanction as a mere rule of procedure. I regard it as a valuable protection given to a public servant against, irresponsible prosecution. It is difficult for me to accept that the legislature intended chat this rule should be broken with impunity and treated like a dead letter whenever the prosecuting authority elected to do so. I cannot believe that the legislature only pretended to give this protection to a public servant who was accused of committing criminal breach of trust and its real intention was that it should Cake away with the left hand what it has given from the right. It cannot be said that the legislature had any warmer feeling or softer corner in its heart for those public servants who accepted illegal gratification as compared to their more unfortunate brothers who committed criminal breach of trust. An offence under Sec. 409, I.P Code is a far graver offence than one under Sec. 161, I.P Code or Sec. 165, I.P Code. The former is punishable upto transportation for life, while the maximum sentence that can be awarded under the latter sections is only three years. The latter offences are also bailable, so that the accused can never be handicapped in his defence by being confined in jail. It is, therefore, difficult to understand that the protection of the rule of, sanction should be given to public servants when they have to meet only a minor charge but they should be deprived of it when a much graver charge is levelled against them. In my opinion this could not have been the intention of the legislature.
61. I am, therefore, of the opinion that because Sec. 409, I.P Code is not mentioned in Sec. 6, Prevention of Corruption Act, it is not correct to infer that the legislature considered a previous sanction unnecessary if a public servant was to be prosecuted under Sec. 409, I.P Code. In fact the over-all picture of the Prevention of Corruption Act shows that the legislature, while enacting the statute, had two clear objects in view. On the one hand it wanted that stranger measures should be adopted to check the growth of bribery and corruption and those public servants who were found guilty should be more severely punished. On the other hand it was anxious that the public servants should not be readily exposed to vexatious and frivolous accusations prompted by personal venom, but should be protested from ill-considered and irresponsible prosecutions. I find nothing repugnant in this dual intention of the legislature. It wanted to make the rules of the game more Strict so that those gamesters who were stacking jokers and aces in their sleeves might be caught more easily but at the same time it wanted to give them a fair deal. In my view the Prevention of Corruption Act by itself is not discriminatory but if a sanction would be considered unnecessary under Sec. 409, I.P Code, this interpretation of Sec. 6 will give the prosecuting authorities a great latitude to evade and dodge the spirit of the enactment even though it may not make the statute itself discriminatory.
62. That the salutary provisions of Sec. 6, Prevention of Corruption Act will be evaded by the prosecuting authorities if they fail to secure a sanction from the proper authority was visualised by the learned Judge in Madho Prasad v. State. He observed:—
“It is evident from Sec. 6 of the Act that a prosecution under Sec. 5(2) of the Act depends on the previous sanction of the competent Authority. Where on the circumstances of a particular case the sanctioning Authority has in its discretion refused to sanction the prosecution, the liability of the Public Servant to punishment under Sec. 409, I.P.C still remains.”
63. The learned Judge, however, instead of deprecating it as a flagrant evasion of the provisions of Sec. 6, Prevention of Corruption Act, came to the conclusion that it was not objectionable and that the prosecuting authorities can legally dodge this rule and prosecute a public servant under Sec. 409, I.P.C, if the sanctioning authority did not allow them to do so under Sec. 5(2), Prevention of Corruption Act. With great respect for the learned Judge, I think that it was to protect the public Servants from this very danger that Sec. 6 was enacted.
64. Dealing with this aspect, a learned Judge of the Allahabad High Court made the following observations in an unreported case “Kirpa Shanker Mathur v. State” (Criminal Misc. No. 506 of 1951):—
“(a) The learned counsel for the State contends that the applicant is not being prosecuted for it the offence of Criminal misconduct punishable under Sec. 5(2) of the Prevention of Corruption Act, but he is being prosecuted under Sec. 409, I.P.C for which no sanction is necessary for prosecution in respect of one such offence but not in respect of the other, prosecution can be had in respect of the offence for which no sanction is necessary. In other words the prosecution Can circumvent the law which requires the taking of previous permission by adopting the device of charging the accused with the offence for which sanction is not needed. In my opinion it is not open to the prosecution to adopt any such device.”
“(b) The applicant is guilty of an offence punishable under Sec. 409 and also of that punishable under Sec. 5(2) of the Prevention of Corruption Act. Since sanction was necessary in respect of the latter offence, but not in respect of the former one, the prosecution could not avoid taking the sanction by launching the prosecution under Sec. 409, I.P Code. The result therefore, is that the prosecution under Sec. 409 also cannot be pemitted to go on unless previous sanction is proved.”
65. This decision was overruled by a Bench decision of the Allahabad High Court in Bhup Narain Saxena v. State. With respect for the learned Judges who overruled this decision I find myself in complete agreement with the view expressed in Kirpa Shanker's case. This view finds strong support from the observations of the Chief Justice of India in Bashir-ul Haq v. The State of West Bengal A.I.R 1953 S.C 293. Mahajan, C.J observed:—
“Though in our judgment Sec. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the orbit of that section it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or comouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being one punishable under some other section of the Indian Penal Code though in trust and substance the offence falls in the category of sections mentioned in Sec. 195, Cr. P. Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Sec. 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”
66. These observations apply as much to Sec. 6, Prevention of Corruption Act, as to Sec. 195, Cr. P. Code.
67. In the light of these observations, it cannot be doubted that the prosecution of a public servant under Sec. 409, I.P Code without obtaining the necessary sanction amounts to a clear attempt at evading the rule of law laid down in Sec. 6, Prevention of Corruption Act and this cannot be permitted. The same view was taken by a Bench of the Bombay High Court in Yashwant Dhondba Rao Chavan v. State A.I.C.D VII, Bom. 555.. The learned Judges observed:—
“Where the facts contended by the prosecution fairly fell under a section which constituted an offence for which a person could not be prosecuted without a proper sanction, it would be the evasion of the salutary provision of the law to proceed under a section, the charge under which did not require a sanction.”
“In our view the facts alleged against the petitioner by the prosecution can be said to fall fairly within the definition of the offence under Sec. 5(2) Prevention of Corruption Act which charge would require a prior sanction. Therefore, we are of the view that the commitment of the petitioner is so far as it relates to the charge under Sec. 409, I.P.C would be bad.”
68. I agree with this view and from this approach to the question also I reach the same conclusion that cognizance of an offence under Sec. 409, I.P Code, when committed by a public servant cannot be taken by any Court except with the previous sanction of a competent authority. My answer to the third question also is in the negative, as in my opinion the prosecution of a public servant under Sec. 409, I.P Code without the necessary sanction is barred by Sec. 6, Prevention of Corruption Act.
69. In view of the answers given by me to the three question discussed above, I hold that the Magistrate was right in not taking cognizance of an offence under Sec. 409, I.P Code against the applicant without a proper sanction. I uphold his order of discharge in respect of an offence under Sec. 409, I.P Code, but from the order of the Magistrate it appears that the prosecution has also led evidence to prove that the applicant committed an offence under Sec. 477-A, I.P Code also. The Magistrate has not considered this aspect of the case at all. An offence under Sec. 477-A, I.P Code does not require any sanction. If the evidence warrants that a charge should be framed against the applicant under Sec. 477-A, I.P Code, the Magistrate should proceed to do so. If he frames the charge and in his discretion feels that he can award an adequate punishment, he should try it himself. If, on the other hand, he comes to the opinion that he cannot award an adequate sentence, he should commit the case to the court of Sessions.
70. By the Court—In view of the opinion of the majority the revision is dismissed. Leave to appeal is granted.