V.G. Balasubramaniam vs State

Bellie, J.—Both these appeals have been filed by one and the same person. He is V.G. Balasubramaniam. C.A. No. 585 of 1981 has been filed against his conviction and sentence under S. 403, I.P.C, in C.C. No. 28 of 1977, and C.A. Nos. 586 of 1981 has been filed against his conviction and sentence again under S. 403, I.P.C, in C.C. No. 29 of 1977. Both the cases were tried by a Special Judge, namely IX Additional Special Judge, Madras. Since in both the appeals a common question of law has been raised by the appellant and on that point alone both the appeals can be disposed of, they are dealt with in this common judgment.

The appellant/accused was a lower Division Clerk in Employees State Insurance Corporation (ESIC-in short). He was also secretary of the ESIC Employees Co-operative Thrift and Credit Society. C.C. No. 28 of 1977 had been filed against him as A1 and one K.N. Venkatesan as A2, who was a Treasurer of the said society, alleging that along with one Mohammed Kasim, a clerk in the society, they made false and fraudulent entries in the books of account of the society and misappropriated a sum of Rs. 18,000 during 1973-74 and another sum of Rs. 47,777 during 1974-75. The appellant A1 along with A2 was charged under S. 5(1)(c) & (d) read with S. 5(2) of the Prevention of Corruption Act and under S. 120B I.P.C, and S. 409, I.P.C, (two counts) C.C. No. 29 of 1977 had been filed against the appellant alone alleging that by making fraudulent entries in connivance with Mohamed Kasim he misappropriated a sum of Rs. 14,607 and another sum of Rs. 2,070. 50 during 1975-76. He had been charged under Ss. 5(1)(c) and (d) read with S. 5(2) of the Prevention of Corruption Act and under S. 120B, I.P.C, and S. 409, I.P.C, (two counts).

The said two cases were separately tried by the Special Judge. In C.C. No. 28 of 1977 the appellant (A1) was found not guilty under S. 5(1)(c) and (d) read with S. 5(2) of the Prevention of Corruption Act. He was also found not guilty under Ss. 120B, I.P.C, and S. 409, I.P.C. (two counts), but however, he was found guilty under S. 403, I.P.C, (two counts), and accordingly he was convicted and sentenced to R.I. for six months under each of the two counts and the sentences were ordered to run concurrently. (A2 has been acquitted of all the charges). In C.C. No. 29 of 1977 also, the appellant was found not guilty under S. 5(1)(c) and (d) read with S. 5(2) of the Prevention of Corruption Act. He was also found not guilty under Ss. 120B, I.P.C, and S. 409, I.P.C, (two counts), but however, he was found guilty under S. 403, I.P.C, (two counts), and he was convicted and sentenced to R.I. for six months on each count and the sentences were ordered to run concurrently.

3a. The main ground on which the learned Special Judge found the appellant-accused not guilty under S. 5(1)(c) and (d) of the Prevention of Corruption Act and under Ss. 120B and 409. I.P.C. was that the appellant-accused did not commit the offence alleged as a public servant. He found that it is the case of the prosecution that he committed the alleged offences in respect of the funds of the society as a Secretary of the society, which was an honorary post, and he has not committed any offence in his capacity as an employee of the State Insurance Corporation, and therefore he cannot be charged under S. 5(1)(c) & (d) of the Prevention of Corruption Act and under S. 409, I.P.C. No appeal has been filed by the State against the acquittal of the accused under S. 5(1)(c) & (d) of the Prevention of Corruption Act and under S. 409 , I.P.C. The said finding of the learned Special Judge is absolutely correct. No doubt, the accused was an employee of the State Insurance Corporation, and there he was a public servant. But he was not a public servant as a Secretary of the society. The charge is that he committed the offence as Secretary of the society and not as an employee of the State Insurance Corporation. It is argued that as per Bye-law of the society only employee of the State Insurance Corporation can be a secretary. That may be so, but because of that the appellant-accused cannot be said to be, as a Secretary to the Society, a Public servant. Therefore, if really he has committed offences as alleged against him, he did it not in his capacity as a public servant. The offence under S. 5(1)(c) & (d) of the Prevention of Corruption Act and under S. 409, I.P.C, relate to only offences committed in the capacity as a public servant and not otherwise. Therefore, if the accused has committed any offence with regard to the funds of the society as a Secretary thereof he cannot be said to have committed an offence under S. 5(1)(c) and (d) of the Prevention of Corruption Act or under S. 409, I.P.C. Therefore rightly the learned Special Judge has acquitted the accused of the charges under Ss. 5(1)(c) & (d) of the Prevention of Corruption Act under S. 409, I.P.C.

Now the learned Counsel for the appellant contends that having held that the appellant-accused has not committed any offence as a public servant or in his capacity as a public servant and therefore he is not liable to be prosecuted under S. 5(1)(c) & (d) of the Act and under S. 409, I.P.C, his conviction under S. 403, I.P,C, is quite illegal and it is liable to be set aside. I find much force in this contention. As stated above, the cases have been tried by a Special Judge, and he has been appointed under S. 6 of the Criminal Law Amendment Act 1952. Under this section Special Judges are appointed for trying cases specified in Cls. (a) and (b) thereof which includes offence under S. 5 of the Prevention of Corruption Act and offences under Ss. 161, 163, 164, 165 and 165A, I.P.C The offences under all these sections are offences committed by a person as a public servant or in his capacity as a public servant and not offences committed otherwise. But under S. 7(3) of the Criminal Law Amendment Act the Special Judge has been empowered to try, when trying any case enumerated in S. 6, any offence other than an offence specified in S. 6 with which the accused may under the Code of Criminal Procedure be charged at the same trial. S. 7(3) is an enabling provision, but under this section the Special Judge has no power to try separated any other offence committed by the accused other than the offences enumerated in S. 6. Therefore, for trying any offence other than the offences enumerated in S. 6, the Special Judge must be trying the offences punishable under the sections enumerated in S. 6 of the Criminal Law Amendment Act, 1952. We have now seen above that, as the learned Special Judge has found the appellant-accused has not committed any offence punishable under S. 5(1)(c) of the Prevention of Corruption Act S. 409, I.P.C, is not one of those enumerated in S. 6(a) of the Criminal Law Amendment Act. The question is when the accused has not committed any offence punishable under S. 5 of the Prevention of Corruption Act, could he be tried for an offence under S. 409, I.P.C, much less under S. 403, I.P.C. The answer must be, in my view, in the negative. In as much as as the appellant-accused has not committed an offence as a public servant or in his capacity as a public servant, the prosecution against him under S. 5 of the Prevention of Corruption Act is illegal. The Special Judge lacks jurisdiction. That being the case, no question of trying other offences comprehended in S. 7(3) of the Criminal Law Amendment Act along with the case being tried under S. 5 of the Prevention of Corruption Act arises. Due to lack of jurisdiction to try the offence charged under S. 5 of the Prevention of Corruption Act in this case. The Learned Special Judge lacks jurisdiction to try "other offences". Hence the trial of the offence charged under S. 409 I.P.C. is vitiated and consequently the conviction under S. 403 I.P.C. is unsustainable.

In State Vs. Gulabram, it was held:

The Jurisdiction of the Special Judge depended on the accused being a public servant. The moment be found that the accused was not a public servant his jurisdiction to try him for offences mentioned in S. 6, Criminal Law Amendment Act, ceased and as a consequence his further jurisdiction under S. 7(3) of that Act to try other offences jointly with the offences specified under S. 6 also ceased. As he lacked inherently the jurisdiction the mere circumstances that a charge was framed and evidence was recorded, cannot create any jurisdiction in him.

I am in agreement with this proposition of law.

5a. In Ramachandra Babanna Chanti In re 1970 M.L.J. (Crl.) 217, an accused was tried for offences under S. 5 of the Prevention of Corruption Act and along with offences under S. 409, I.P.C. and some other sections of I.P.C. It was found that there was no valid sanction order required under S. 6 of the Prevention of Corruption Act for prosecution of offences under S. 5 of that Act, and therefore it was held by the Mysore High Court that the Special Judge lacked jurisdiction to try the case under S. 5 of the Prevention of Corruption Act. It was further held that since the Special Judge could not try the case under S. 5 of the Act, he could not under S. 7(3) of the Criminal Law Amendment Act take cognizance of other offences triable under the Indian Penal Code.

Similarly it was held by Manipur Judicial Commissioner''s Court in Konsam Tharongou Singh v. The Union Territory of Manipur I entirely agree with the dictum laid down in these two cases.

I do not see any reason as to why the principle of law laid down in the above three cases should not be applicable to the case in which the accused is found not to have committed any offence in his capacity as a public servant even though he is a public servant.

In the result, I therefore hold that the conviction and sentence of the appellant-accused under S. 403, I.P.C. in both the cases are vitiated due to the lack of competency of the Special Judge to try the cases, and therefore the convictions and sentences are set aside. Here I would make it clear that, if so desired, the appellant-accused can be proceeded against afresh by proper course. The appeals are thus disposed of.