1957 (1) TMI 43 - SC - Indian Laws

Summary

Issues Involved:
1. Implied repeal of Section 409 of the Indian Penal Code (IPC) by Section 5(1)(c) and 5(2) of the Prevention of Corruption Act, 1947.
2. Application of Article 14 of the Constitution in relation to Section 409 IPC and the Prevention of Corruption Act.
3. Necessity of sanction for prosecution under Section 409 IPC.

Detailed Analysis:

1. Implied Repeal of Section 409 IPC by Section 5(1)(c) and 5(2) of the Prevention of Corruption Act, 1947:
The court examined whether Section 409 IPC, which deals with criminal breach of trust by a public servant, banker, merchant, etc., has been impliedly repealed by the enactment of Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act. The court analyzed the provisions of both statutes, noting that Section 405 IPC defines criminal breach of trust, and Section 409 IPC provides for aggravated punishment when the offense is committed by a public servant.

The Prevention of Corruption Act was enacted to make more effective provisions for the prevention of bribery and corruption. Section 5(1)(c) of the Act deals with the dishonest or fraudulent misappropriation of property by a public servant. The court noted that while both provisions address similar misconduct, the Prevention of Corruption Act includes additional elements such as fraudulent misappropriation and the allowance of another person to misappropriate property.

The court concluded that Section 5(1)(c) of the Prevention of Corruption Act is broader in scope than Section 405 IPC. It held that the two statutes are not identical in essence, import, and content, and thus, Section 5(1)(c) does not impliedly repeal Section 409 IPC. The court also referred to various judgments supporting this view, including decisions from the Bombay, Madras, and Calcutta High Courts.

2. Application of Article 14 of the Constitution:
The appellants argued that the application of Section 409 IPC to a public servant infringes Article 14 of the Constitution, given that the Prevention of Corruption Act provides specific provisions and procedures for dealing with similar offenses.

The court rejected this argument, stating that the offenses under Section 409 IPC and Section 5(1)(c) of the Prevention of Corruption Act are distinct and separate. The court emphasized that the Prevention of Corruption Act creates a new offense called "criminal misconduct," which is different from the offense under Section 405 IPC. Therefore, there is no violation of Article 14, as the two statutes address different aspects of similar misconduct.

3. Necessity of Sanction for Prosecution under Section 409 IPC:
The court examined whether a sanction is required for the prosecution of a public servant under Section 409 IPC. The appellants contended that despite being prosecuted under Section 409 IPC, a sanction is necessary in line with the provisions of the Prevention of Corruption Act.

The court referred to a large body of case law from various High Courts, which held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant, and therefore, no sanction is necessary. The court agreed with this view and concluded that no sanction is required for prosecution under Section 409 IPC.

Conclusion:
The court dismissed Criminal Appeal No. 3 of 1955, upholding the view that Section 409 IPC has not been impliedly repealed by Section 5(1)(c) of the Prevention of Corruption Act. It also held that there is no infringement of Article 14 of the Constitution and that no sanction is necessary for prosecution under Section 409 IPC. Criminal Appeals Nos. 42 of 1954 and 97 of 1955 will be heard on merits.