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TMI Blog1957 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... affirming the appellate decision of the Sessions Judge of Kumaun who in his turn maintained the sentence of rigorous imprisonment for one year and a fine of ₹ 500 passed on the appellant by the Special 1st Class Magistrate of Nainital on April 30, 1953, under s. 409 of the Indian Penal Code. This appellant was a clerk in the Electric Department of Haldwani Municipal Board and the charge against him was that he received three sums of money: ₹ 242/5/9(Ex. P. 14) on July 28, 1951, ₹ 70/- (Ex. P. 17) on October 19, 1951, ₹ 135/- (Ex. P. 13) on October 23, 1951 aggregating to ₹ 447/5/9 and misappropriated the whole amount, though his defence was that having received the money, he gave it to his official superior, Electrical Engineer Pandey; and did not have anything more to do with the money. The Police charge sheet was under ss. 409 and 467 of the Indian Penal Code, but the conviction was only under the former section. The conviction and sentence imposed upon him by the trial court having been confirmed in appeal by the learned Sessions Judge and further having been affirmed by dismissal of his revision by the High Court of Allahabad, have now become the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Prevention of Corruption Act, can be legally sustained. Two other questions have also been urged before us and they are: Assuming that there was no such implied repeal, would the application of s. 409 of the Indian Penal Code to a public servant infringe Art. 14 of the Constitution, now that the provisions of the Prevention of Corruption Act and the procedure laid down thereunder are available to deal with a breach of trust by a public servant; 'and next, if the appellants do not succeed on the first two points, whether the provision for sanction required by the Prevention of Corruption Act would also similarly apply to a prosecution under s. 409 of the Indian Penal Code. What is first to be determined is whether s. 409 of the Indian Penal Code, deals with the same offence as that contemplated under ss. 5(1)(c) and 5(2) of the Prevention of Corruption Act, and if so, has there been an overlapping of legislation over the same field; and has the latter one impliedly repealed the earlier. For that purpose the provisions of the two statutes have to be succinctly analysed to understand the full scope and the import of the two. The fasciculus of sections cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it shall be presumed unless the contrary is proved, that he accepted, obtained or agreed to accept or attempted to obtain that gratification or valuable thing as a 'motive or reward such as is mentioned in ,section 161, etc., etc. Sub-section 2 of s. 4 also deals with this presumption. We are concerned in these appeals with s. 5. Sub-sections I (a) and 1 (b) of s. 5, which is designated as criminal misconduct in discharge of official duty by a public servant, deal with persons who habitually accept or obtain or agree to obtain gratification other than legal remuneration as a motive or reward as mentioned in s. 161 of the Indian Penal Code. It is -not necessary to deal with these two subclauses in detail because there is no question of any acceptance of illegal gratification in the present cases but one thing that has to be remembered is that these sub-sections deal with habitual acceptance or obtaining, etc., whereas ss. 161 and 165 deal with even a single acceptance or obtaining. The result is that under ss. 161 and 165 of the Indian Penal Code a prosecution can be laid even in the case of a single act by which a public servant has accepted an illegal gratification, but in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary of either the Central Government or the State Government or the authority competent to remove the Government servant. The last section of the statute is a departure or deviation from the procedure till then obtaining in a criminal case and thereby an accused person is held competent to be a witness on his behalf. Whereas under s. 342, Indian Penal Code, as it stood before the recent amendment, no accused person was entitled to be administered on oath and thereby competent to testify in a court of law in a case in which he is accused; under s. 7 any person charged with an offence punishable under s' 161 or s. 165 or 165-A of the Indian Penal Code, or under sub-s. (2) of s. 5 of the Prevention of Corruption Act, is a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial; and there are also certain safeguards provided in the matter of giving such testimony. We have now referred to the relevant provision of Act II of 1947 in which the most important one for our present consideration is s. 5(1)(c). It will be useful to institute a comparison between s. 405 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are:- (1) The punishment for criminal misconduct is less than the punishment for breach of trust by a public servant; (2) It is necessary to obtain previous sanction for a prosecution under s. 5 (1) (c), whereas in the case of breach of trust by a public servant, such sanction may or may not be necessary; (3) The investigation of an offence under s. 5 (1) (c) should be by an officer of a higher grade though that does not obtain so far as the present appeals are concerned; and (4) The accused person has the right of giving evidence on his behalf. The disadvantages are that in such a trial the presumption referred to in s. 4(3) can be drawn against the accused if it is found that he has pecuniary resources for property disproportionate to his known sources of income and also the two presumptions regarding the acceptance of a valuable thing from any person by a public servant as contemplated in sub-ss. (1) and (2) of s. 4. These differences, according to the learned counsel for the appellant, do not in any way make the offence under s. 5 (1)(c) different from the offence under s. 409 of the Indian Penal Code, but that only another method of procedure is prescribed and a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion should supersede an enactment of antiquity, even if the matter covered the same field. Under s. 6(a) of the General Clauses Act if by efflux of time the period of a temporary statute which had repealed an earlier statute expires, there would not be a, revival of the earlier one by the expiry of the temporary statute. A Full Bench of the Bombay High Court in The State v. Pandurang Baburao (1) held that the language used by the legislature in s. 5 (4) of the Prevention of Corruption Act clearly negatived any suggestion that the legislature intended to repeal the provisions of s. 409 of the Indian Penal Code. It cannot also be held that s. 409 of the Indian Penal Code if; impliedly repealed by the Prevention of Corruption Act because it is impossible to say that the provisions of the two are wholly incompatible or that the two statutes together would lead to wholly absurd consequences. Therefore, it was open to the prosecution to proceed with a trial under s. 409 of the Indian Penal Code or under s. 5(2) of the Prevention of Corruption Act even before the Amendment of the latter Act by Act LlX of 1952 and of the prosecution was launched under s. 409 and if the status of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trast of these elements would show that an offence under s. 405 of the Indian Penal Code is separate and distinct from the one under s. 5 (1) (c). There are three points of difference between s. 405 of the Indian Penal Code and s. 5 (1) (c). The dishonest misappropriation contemplated in s. 405 of the Indian Penal Code is different; whereas that under section 5 (1) (c) is either dishonest misappropriation or fraudulent misappropriation. The latter section is much "wider in amplitude than the former. In s. 405 of the Indian Penal Code the words used are "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." There are no such expressions in s. 5 (1)(c). It is clear, therefore, that whereas under s. 405 of the Indian Penal Code there are three essential ingredients to constitute the offence, each one of them being separate and distinct, in s. 5(1)(c) there are only two. Now considering s. 5(1)(c) there are certain matters in it which are absent ins. 405 of the Indian Penal Code. The words 'dominion' and 'entrustment' connote two different things. The word I domin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty so entrusted, then it is an offence. There is a vast difference between wilfully suffering another and allowing a person to do a particular thing and in our view the word "allows " is much wider in its import. Wilfully pre-supposes a conscious action, while even by negligence one can allow another to do a thing. It seems to us, therefore, that the two offences are distinct and separate. This is the view taken in Amarendra Nath Roy v. The State (supra) and we endorse the opinion of the learned Judges, expressed therein. Our conclusion, therefore, is that the -offence created under s. 5(1)(c) of the Prevention of Corruption Act is distinct and separate from the one under s. 405 of the Indian Penal Code and, therefore, there can be no question of s. 5(1)(c) repealing s. 405 of the Indian Penal Code. If that is so, then, article 14 of the Constitution can be no bar. The last argument of Mr. Isaacs is that despite the fact that the prosecution is under s. 409 of the Indian Penal Code, still sanction to prosecute is necessary. Quite a large body of case law in all the High Courts has held- that a public servant committing criminal breach of trust does not normally act i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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