9911796707
TMI Blog1975 (7) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... sed had to face a trial for a number of years, the Government will consider the desirability of not prosecuting him again. In view of these circumstances, therefore, we feel the respondent has committed only a technical offence and a token sentence is called for - allow the appeal, set aside the judgment of the High Court - convict the respondent under s. 420 I.P.C. and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act but reduce his sentence to the imprisonment already served - Criminal Appeal No. 43 of 1971 - - - Dated:- 15-7-1975 - SYED MURTAZA FAZALALI AND N.L. UNTWALIA,JJ. JUDGMENT The Judgment of the Court was delivered by FAZAL ALI, J. This is an appeal by State of M.P. by certificate granted by the High Court of Madhya Pradesh under Art. 134(1)(c) of the Constitution against its judgment and order dated April 12, 1973 by which the respondent who was convicted by the Special Judge, Indore, under s. 220 I.P.C. and s.5(2) read with s. 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to one year rigorous imprisonment on each count, was acquitted by the High Court. Briefly put, the prosecution case against the respondent was that he was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court seems to have readily accepted this contention and has accordingly held that as the various amendments to s. 21 of the Indian Penal Code cannot apply to the provisions of the Prevention of Corruption Act, and therefore the respondent being only an employee of the Government Company does not fall within the ambit of public servant as defined in s. 21 of the Indian Penal Code prior to the amendment. In order of appreciate this point, it may be necessary to set out the scheme of the Prevention of Corruption Act-hereinafter referred to as the Act -with particular reference to s. 21 of the Indian Penal Code-hereinafter referred to as the Penal Code -which has been incorporated in the Act. To begin with, the preamble to the Act clearly shows that the Act has been passed for more effective prevention of bribery and corruption, bribery being a form of corruption. Section 2 of the Act runs thus: "For the purpose of this Act, "Public servant" means a public servant as defined in section 21 of the Indian Penal Code." It would be seen that s. 2 of the Act completely incorporates the provision of s. 21 of the Penal Code in order to define a "public servant". The Legislature in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude even an employee of a Government company or a corporation with the avowed object of stamping out corruption at various levels prevailing in the country. The question that arises for consideration is whether the sub sequent amendments to s. 21 of the Penal Code after its incorporation in the Act would have to be read into the Act or not. It is true that if the doctrine of legislation by incorporation is strictly applied in this case, then the definition of s. 21 of the Penal Code prior to its amendment by Act 11 of 1958 and Act XL of 1964 would alone stand and, if this is so, the respondent would not be a public servant within the meaning of s. 21 of the Penal Code. It is well settled that where the subsequent Act incorporates a provision of the previous Act, the position is that the borrowed provision is bodily lifted from the previous Act and placed in the subsequent Act and becomes an integral and independent part of it so as to remain unaffected by any repeal, change or amendment in the previous Act. In Clarke v. Bradlaugh,(1) Brett, L.J., observed as follows: "..... but there is a rule of construction that, where a statute is incorporated by reference into a second stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt.. The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country." Thus, the position is that after the provision of the previous Act is incorporated in the subsequent Act, the offspring, namely the incorporated provisions, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book. The High Court appears to have relied on all these decisions in order to come to its conclusion that as the Act has incorporated the provisions of s. 21 of the Penal Code in s. 2 thereof, any amendment in the previous Act, namely the Penal Code, will not affect the subsequent Act, namely the Prevention of Corruption Act. It was argued before the High Court as also before us that the Act and the Penal Code are statutes in pari material and form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e read into s. 2 of the Act, because once the definition of s.21 of the Penal Code was incorporated in the Act it had to be imported into the other Act and considered pari passu the Penal Code. In our opinion, this argument is well founded and must prevail. We have already indicated that the object of the Act was to eradicate corruption from various levels either in Government services or in services under the Corporations or Government companies. The Penal Code no doubt creates offences like those mentioned in ss. 161 and 165 of the Code but they were not found sufficient to cope with the present situation and the expanding needs of the nation. In these circumstances, it was considered necessary to evolve a quick, expeditious and effective machinery to destroy the evil of corruption existing in any from. If, therefore, the Penal Code with the same object enlarged the definition of s.21 by adding the twelfth clause by virtue of the Criminal Law (Amendment) Act, 1958 and the Anti-corruption Laws (Amendment) Act, 1964, there is no reason why the extended meaning to the provision of s.2 of the Act as borrowed from s. 21 of the Penal Code be not given to that section. This Court in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly construed so as to advance the object of the Act. This can only be done if we give extended meaning to the term "public servant" as referred to in s. 2 of the Act by applying the enlarged definition contained in clause 12 inserted in the Penal Code by the two amendments referred to above. There is yet another aspect of the matter which is spelt out from the decision of the Privy Council in the Hindustan Co-operative Insurance Society s case (supra) which has been relied upon by the High Court itself. While reiterating the principle that after certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act can be made, their Lordships of the Privy Council made it clear that this principle would not apply where the subsequent Act is rendered unworkable or is not able to function effectually. In this connection their Lordships observed. as follows: "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms to us that even if s. 2 of the Act had not applied the provisions of the Penal Code and had not defined public servant, then the provisions of the Penal Code would have come into operation by implied reference because the. Act was a supplemental Act to the Penal Code. It was only by way of abundant caution that s. 2 of the Act incorporated the definition of public servant" as mentioned in s. 21 of the Penal Code and in that sense alone the Act can be treated as being pari materia with the Penal Code. For these reasons therefore for are clearly of the opinion that the judgment of the High Court holding that the respondent was not a public servant is legally erroneous and cannot be allowed to stand. The other point is regarding the question of sentence. The High Court has itself pointed out that the respondent had been forced under duress exercised by his superior officer in drawing the inflated travelling allowance. The High Court has also expressed the view that having regard to the fact that as the accused had to face a trial for a number of years, the Government will consider the desirability of not prosecuting him again. In view of these circumstances, therefore, we feel th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
