The State vs Raj Kumar

Chopra, J.—Raj Kumar Respondent was convicted by Magistrate I Class, Sultanpur, u/s 409, I.P.C. and sentenced to two years'' rigorous imprisonment and to pay Rs 200/- as fine, or in. default to undergo rigorous imprisonment for six month Section In appeal, the Sessions Judge, Kapurthala, has set aside the conviction on the sole ground that Section 409, I.P.C. was pro tan to repealed by Section 5(1)(e), Proveulinn if Corruption Act, (2 of 1947).

Direction has, however, been given that "the prosecution might clallan him (the accused) u/s 5(a)(c), Prevention of Corruption Act, after going through the necessary formalities." This is a State appeal u/s 417, Code of Criminal Procedure, against the judgment of the Sessions Judge.

The case against the Respondent is that when posted as Rent Controller in the Custodian''s Department at Sultanpur in the year 1950, he collected rents amounting to Rs. 21/- from different lessees of evacuee property and issued receipts for the same, He did not deposit the said amount in the State treasury, but misappropriated it for his own use.

A case u/s 409, I.P.C. was registered against him on 17-5-1950 in police-station Sultanpur. The challan was submitted in the Court of Magistrate I Class, Sultanpur, on. 18-11-1951. The Respondent was charged u/s 409, I.P.C. on 21-5-1952, and convicted and sentenced as stated already, on 3-9-1952.

It cannot be denied that an offence which falls u/s 409, I.P.C, and is committed by a pulic servant, would also fall u/s 5(1)(e), Prevention of Corruption Act, 1947. The question is whether with regard to public servants the legislature intended to abrogate the provisions or Section 409, I.P.C. and to provide that a public, servant committing an offence u/s 409, I.P.C. can only be proceeded against under the provisions of the Prevention of Corruption Act.

There is no express provision in the Prevention of Corruption Act, 1947 to repeal Section 409, I.P.C. so far as it relates to public, servant Section It has then to be seen if the provisions of the later Act are so inconsistent with, or repugnant to, those of the earlier Act that the two cannot stand together and the earlier should be taken to have been repealed by necessary implication.

A simple reading of the two provisions makes it abundantly clear that there is no repugnancy or inconsistency between the two and that the one is enacted as a supplementary measure to the other, with a different and special object. The fact that the Prevention of Corruption Act provides for a different mode of procedure for trial or makes the offence differently punishable does not involve any inconsistency with the earlier enactment. The two provisions can co-exist side by side even though the one may, to some extent, overlap the other.

Dealing with a similar situation Maxwell on Interpretation of Statutes (10th Edition) at page 186, observes:

It would seem that an Act which (without altering the nature of the offence, as by making it felony instead of misdemeanors) imposes a new kind of punishment, or provides a new course of procedure for that which was already an offence, at least at common law, is usually regarded as cumulative and as not superseding the pre-existing law.

It is a generally recognized principle that where a special enactment deals with an offence similar to the offence which is dealt with by a general enactment, it does not necessarily follow that the provision of the general enactment is re pealed to that extent. A person alleged to have committed the offence may be tried and punished under either of the enactments, with the only rider that he cannot be convicted twice for the same offence.

The option lies with the prosecution to proceed against the person under either of the enactment Section It is not open to the Court to insist that the prosecution must be made under one particular enactment and to refuse to try the case under the other enactment.

There is no principle of law of interpretation to authorize a Court to withdraw a case from the express prohibitions of one statute on the ground that the offence was also punishable, though differently, in another statute. In case of two parallel provisions, the prosecution may proceed under either. This is expressly laid down by Section 26, General Clauses Act, which reads 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 unshed under either or any of those, enactments, at shall not be liable, to be punished twice for the same offence.

The principle laid down by this Section, has been expressly adopted and the question whether Section 5(l)(o), Prevention of Corruption Act, 1947, impliedly repeals Section 409, Penal Code, in relation to public servants has been finally concluded by the new Sub-section (4) of Section 5 of the Act, Section 5(4), Prevention of Corruption Act (added to it by the Amending Act No. 59 of 1952) says:

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 heroin shall exempt any public servant from any proceeding which might, apart hunt this Section be instituted against him.

This Sub-section makes it amply clear that Section 5(1)(e) of the Act in no way prevent the prosecution of any rmblic servant for an offence u/s 409, I.P.C.

It is correct that Sub-section (4) of Section 5, as it is worded, is only prospective and cannot be given a retrospective effect. But, as already pointed out, a special law does not repeal the general enactment unless the intention is made clear in the law.

Section 26, General Clauses Act, supplies are effective answer to the argument of implied repeal in the present case. This important provision of the General Clauses Act must have been in view of the legislature while enacting Section 5(1)(c), Prevention of Corruption Act.

The intention is further clarified by the amendment of Section 5 by Act 59 of 1952. The amendment appears to have been made simply to rebut any contrary view that may possibly be taken and was in fact taken by a Division Bench of the Punjab High Court in State v. Gurcharan Singh AIR 1952 Puin 89 (A).

This decision of the Punjab High Court has been referred to and dissented from in a number of cases, such as In re Govindswanni AIR I954 Mad 401 (B), jayarama Iyer v. State AIR 1954 Hyd. of (C), A ill 1954 Mad. 401 (B) State Vs. Gulab Singh, Madho Prashad v. State AIR 1953 Mad 139 (E), Om Prakash Vs. The State, (F) Amarendra Nath Roy Vs. The State, . And a view contrary to that of the Punjab High Court is taken in a number of other eases, such as: In Re: Veerasami Naicken, Bhup Narain Saxena Vs. State, and The State Vs. Sahebrao Govindrao Jadhav,

Some of these cases'' were cited by the State counsel before the Sessions Judge. But the learned Judge without looking into the contrary view or expressing any opinion thereon simply 1 al lows the Punjab view, influenced by the impression that "in case of conflict of opinion we Pepsu are to prefer the Punjab view."

The observation, to say the least, is misconceived for there is no such extant rule of guidance. I remember of certain decisions of the High Court of erstwhile Patiala State wherein it was observed that in case of conflict, the view taken by the then Lahore High Court was to be preferred. To this view, particularly in the present set of things, we cannot subscribe.

When a question of law on which judicial opinion is not uniform comes up for decision, the Courts must apply their own mind to the question before them, arrive at their own conclusions and give reasons for the same; assistance may of course be derived from decided cases. And again, it is for the Courts to give reasons for following a particular view expressed in a particular case.

For the reasons already mentioned it can not but be held that the Prevention of Corruption Act does not expressly repeal any of the provisions of the Penal Code, nor did Section 5(1)(c) Prevention of Corruption Act, as it stood before the amendment of 1952, impliedly repeal any of the provisions of Section 409, I.P.C.

We would consequently accept the appeal, set aside the judgment of the Sessionsi Judge, Kapurthala, and send back the case for re-hearing and decision of the appeal in accordance with law. The Respondent shall furnish a personal recognizance in the amount of Rs. 1000/- to appear in the Court of the Sessions Judge, Kapurthala

He has been directed to present himself in the said Court on 11-7-1955. Question of admission of Rajkumar accused to bail shall rest with the Sessions Judge.

Kesho Ram Passey, C.J.

I agree.