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Petitioner: OM PRAKASH GUPTA & OM PRAKASH & RAM GOBIND SINGH VS Respondent: THE STATE OF U. P
P L D 1957 Supreme Court (Ind
P L D 1957 Supreme Court (Ind.) 513
Present: S. R. Das, C. J., Bhagwati, Venkatrama Ayyar,
S. K. Das and Govinda Menon, JJ
(1) OM PRAKASH GUPTA‑Appellant
Versus
THE STATE OF U. P.‑Respondent
(2) OM PRAKASH‑Appellant
Versus
THE STATE OF U. P.‑Respondent
(3) RAM GOBIND SINGH‑Appellant
Versus
THE STATE OF VINDHYA PRADESH‑Respondent
Criminal Appeals No. 42 of 1954 and Nos. 3 and 97 of 1955, decided on 11th January 1957.
(a) Prevention of Corruption Act (II of 1947)-------
-----Ss. 5 (1)(c) and 5 (2)‑Whether by implication repeals S. 409 of the Penal Code (XLV or 1860)‑Prosecution of public servant for offence of criminal breach of trust without requisite sanction and without conforming to provisions of Prevention of Corruption Act Whether can be legally sustained‑Application of S. 409 of Penal Code to public servant after the enactment of Prevention of Corruption Act whether infringes Art. 14 of the Constitution of India‑Penal Code (XLV of 1860), Ss. 161, 162, 405 and 409‑Constitution of India, Art. 14 (Constitution of Pakistan, Art. 5).
The Prevention of Corruption Act being a temporary one, the Legislature would not have intended in the normal course of things that a temporary statute like that should supersede an enactment of antiquity, viz. the Penal Code, even if the matter covered the same field
Section 405 of the Penal Code and section 5 (1) (c) of Prevention of Corruption Act are not identical in essence, import and content. A clear comparison and contrast of the different elements constituting the two offences show that an offence under section 405 of the Penal Code is separate and distinct from the one under section 5 (1) (c). There are three points of difference between section 405 of the Penal Code and section 5 (1) (c) of the Prevention of Corruption Act. The dishonest misappropriation contemplated in section 405 of the 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 section 405 of the Penal Code the words used are "In violation of any direction of law prescribing the mode in which such trust is to be dis charged, or of any legal contract, express or implied. There are no such expressions in section 5 (1) (c). It is clear, therefore, that whereas under section 405 of the Penal Code there are three essential ingredients to constitute the offence; each one of them being separate and distinct. In section 5 (1) (c), there are only two. In section 5 (1) (c) there are certain matters which are absent in section 405 of the Penal Code. The words `dominion' and 'entrustment' cannot two different things. The word `dominion' is not in section 5 (1) (c). The word `fraudulently' is not present in section 405 and in section 5 (1) (c) the gist of the offence can also be made out if the offender allows any person to do so, i.e., allows any person to derogate from the law as contemplated in the earlier portion of the section. The meaning put on the word "allows" would certainly be different from `dishonest mis appropriation' by the offender himself. It may be that the word can mean allowing by negligence or without any violation on the part of the offender. It may also mean that there is some kind of positive and tacit acquiescence necessary to bring home the offence. In any event, allowing other persons so to do does not find a place in section 405 of the Penal Code though this section also contemplates "wilfully suffering any other person so to do." There is an essential difference between "allowing" a person and "wilfully suffering" a person to do a certain thing. Wilfully pre‑supposes a conscious action, while even by negligence one can allow another to do a thing. Therefore the offence created under section 5 (1) (c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 of the Penal Code and, there fore, there can be no question of section 5 (1) (c) repealing section 405 of the Penal Code.
Sections 5 (1) (a) and 5 (1) (b) are aggravated forms of sections 161 and 162 of the Penal Code and the intention cannot be to abrogate the earlier offence by the creation of the new offence. These two offences can co‑exist and the one will not be considered as overlapping the other. A course of conduct can be proved when a person is arraigned under section 5 (1) (c) and 5 (1) (b), but such a course is impossible to be let in evidence when an offence under sections 161 and 162 is being enquired into or tried. Similarly there are a number of elements which can be proved in an inquiry or trial under section 5 (1) (c) that cannot be let in by the prosecution when a person is charged for an offence under section 405 of the Penal Code.
The offence created under section 5 (1) (c) of the Pre vention of Corruption Act is distinct and separate from the one under section 405 of the Penal Code and, therefore, there can be no question of section 5 (1) (c) repealing section 405 of the Penal Code. Hence the application of section 409 to a public servant is not barred by Art. 14 of the Constitution.
A public servant committing criminal breach of trust does not normally act in his capacity as a public servant and as such no sanction is necessary for his prosecu tion.
(b) Penal Code (XLV of 1860)---
---Ss. 161, 165 & 409 Prosecution of public servant under‑Pecuniary resources or property disproportionate to his known source of income Presumption of criminal misconduct cannot be drawn against the accused‑Prevention of Corruption Act (II of 1947), S. 5 (3).
Where a person is charged with criminal misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the Court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct. Such a presumption cannot be drawn in the case of a prosecution under sections 161, 165 and 409 of the Penal Code.
(c) Prevention of Corruption Act (II of 1947)------
-----S. 7-- Enables accused to give evidence on oath in disproof of charges against him‑Criminal Procedure Code (V of 1898), S. 342 Penal Code (XLV of 1860) Ss. 161, 165 & 165‑A.
The last section of the Prevention of Corruption Act 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 section 342 no accused person is entitled to be administered an oath and thereby competent to testify in a Court of law in a case in which he is accused; under section 7 of the Prevention of Corruption Act any person charged with an offence punishable under sections 161, 165 or 165‑A of the Penal Code, or under subsection (2) of section 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.
Zaverbhai Amaidas v. State of Bombay (1955) 1 S C R 799: Smith v. Benabo (1937) 1 K B 518; Michell v. Brown. per Lord Campbell (1858) 1 El & El 267; Attorney‑General for Ontario v. Attorney‑General for the Dominion 1896 A C 348; The State v. Gurcharan Singh A I R 1952 Ph. 89: The State v. Pandurang Baburao A I R 1955 Born. 451; Re V. V. Satyanarayanmurthy A I R 1953 Mad. 137; Amarendra Nath Roy v. The State A I R 1955 Cal. 236; Muhammad Ali v. The State A I R 1953 Cal. 681; Bhup Narain Saxena v. State A I R 1952 All. 35; Gopal Das v. The State A I R 1954 All. 80 and State v. Gulab Singh A I R 1954 Raj. 211. ref.
S. C. Isaacs, Senior Advocate (P. C. Agarwala Advocate, with him) in No. 42 of 1954); S. C. Isaacs, Senior Advocate, (O. N. Srivastava, Advocate with him) (in No. 3 of 1955) and S. C. Isaacs, Senior Advocate, Messrs. J. B. Dadachanji, S. N. Andley and Rameshwarnath, Advocates of Messers. Rajinder Narain & Co. with him (in No. 97 of 1955) for Appellants.
G. C. Mathur and C. P. Lal, Advocates, (in Nos. 42 of 1954 and 3 of 1955) and Porus A. Mehta and R. H. Dhebar, Advocates (in No. 97 of 1955) for Respondent.
JUDGMENT
GOVINDA MENON, J.‑----Though these three appeals have been filed against the decisions of different Courts and are not connected either as regards community of purpose or the identity of the accused, they have been heard together, because the points of law raised in them are identical and the arguments of counsel have proceeded on common lines. Hence a common judgment dealing with the legal aspect would be apt in the circumstances.
Criminal Appeal No. 42 of 1954 has been preferred by Om Prakash Gupta against the dismissal of his Revision Petition by the High Court of Allahabad, thereby affirming the appellate decision of the Sessions Judge of Kumaun who in his turn maintained the sentence of rigorous imprisonment fore one year and a fine of Rs. 500 passed on the appellant by the Special 1st Class Magistrate of Nainital on 30th April 1953, under section 409, 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:
Rs. 242‑5‑9 (Ex. p. 14) on 28th July 1951,
Rs. 70 (Ex. p. 17) on 19th October 1951,
Rs. 135 (Ex. p. 13) on 23th October 1951
aggregating to Rs. 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 sections 409 and 467, 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 subject of appeal, as special leave has been granted on the question of law raised.
Om Prakash, the appellant in Criminal Appeal No. 3 of 1955, had obtained leave to appeal from the High Court of Allahabad against the opinion of a Full Bench of that Court in Criminal Revision No. 141 of 1951, by which it affirmed the order of the Civil and Sessions Judge of Sitapur in Criminal Revision No. 5 of 1951, holding that Om Prakash was improperly discharged by the learned Magistrate of an offence under section 409, Penal Code, and directing the Magistrate to make a further inquiry into the matter of that offence. It may be mentioned that the learned 1st Class Magistrate held that sanction was essential for the prosecution of Om Prakash and as the same had not been granted, the prosecution was not maintainable. This view did not find acceptance at the hands of the learned Sessions Judge, whose decision was affirmed by the High Court of Allahabad. The charge against him was that as a canal Accountant in a Divisional Engineer's office he committed criminal breach of trust of a certain sum of money.
Lal Ramagovind Singh, the appellant in Criminal Appeal No. 97 of 1955, was the Director of Agriculture in the Indian State of Rewa and for the offence of having committed criminal breach of trust of an amount of Rs. 586‑10‑0 on 4th December 1948, he was prosecuted under section 409, Penal Code on 13th August 1949, and after inquiry, charges were framed against him on 24th February 1950) resulting in a judgment of conviction by the trial Court on 29th September 1950 and a sentence of one year a rigorous imprison ment and a fine of Rs. 500. His appeal to the Sessions Judge was dismissed on 29th September 1951 and the revision to the Judicial Commissioner shared the same fate on 16th January 1952. Special leave having been granted to him, Criminal Appeal No. 97 of 1955 was the outcome.
The first question for consideration, is whether section 409, Penal Code, in so far as it applies to a public servant (in this case the three appellants were admittedly public servants, has been impliedly repealed by the enactment of sections 5 (1) (c) and 5 (2), Prevention of Corruption Act II of 1947, and if that is so, whether a prosecution of the appellants for an offence of criminal breach of trust without the requisite sanction and without conforming to the provisions of the Preventi6n 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 section 409, 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 section 409, Penal Code.
What is first to be determined is whether section 409, Penal Code, deals with the same offence as that contemplated under section 5 (1) (c) and 5 (2), Prevention of Corruption Act, and if so, has there been an overlapping of legislation over the same field; and 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 contained in Chapter XVII, Penal Code, beginning with section 405 and ending with section 409, Penal Code, deals with criminal breach of trust. Section 405, Penal Code defines criminal breach of trust and section 409, Penal Code is an aggravated form of criminal breach of trust when the same is committed by a public servant, banker, merchant, etc. Analysing section 405, Penal Code, into its component ingredients, it is seen that the following essential ingredients are absolutely necessary to attract the operation of the section:
(i) The accused must be entrusted with property or dominion over property;
(ii) The person so entrusted must
(a) dishonestly misappropriate or convert to his own use that property, or
(b) dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.
In the above cases he is said to commit a criminal breach of trust.
Section 409, Penal Code lays down the punishment when such criminal breach of trust is committed by a public servant, banker, merchant, etc.
Now we have to ascertain the provisions of the Preven tion of Corruption Act dealing with criminal misconduct.
The preamble of the Act makes it clear that the intention was to make more effective provisions for the prevention of bribery and corruption. From this itself, it is clear that the Legislature was alive to the fact that something more stringent and drastic than section 409, Penal Code was necessary in the case of bribery and corruption by public servants and it was to effectuate that intention that the Act was put on the statute book. The duration of this piece of legislation in the first instance was only for a period of five years which later on was extended by Act II of 1952 for ten years which would mean that automatically the Act would expire by about the middle of 1957.
Section 3 lays down that offences under sections 161, 165 and 165‑A, Penal Code which under the provisions of the Criminal Procedure Code were not cognizable are made cognizable. Section 5 enacts that where a public servant accepts, agrees to or obtains gratification other than legal remuneration, then 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. Subsection (2) of section 4 also deals with this presump tion. We are concerned in these appeals with section 5. Subsections 1 (a) and 1 (b) of section 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 section 161, Penal Code. It is not necessary to deal with these two sub‑clauses 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 under subsections deal with habitual acceptance or obtaining, etc., whereas section 161 and 165 deal with even a single acceptance or obtaining. The result is that under sections 161 and 165, 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 order to attract clauses 5(1) (a) and 5(1) (b), there must be habitual commission of the crime. Any stray or a single instance would not suffice to bring within the ambit of the section, the offence, as contemplated in sections 5 (1) (a) and 5 (1) (b). The result is that the offences under sections 5 (1)(a) and 5 (1) (b) are an aggravated form of the offence under sections 161 and 165, Penal Code.
As we are concerned with section 5(1) (c), the same may be quoted in extenso:
"If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to rim or under his control as a public servant or allows any other person so, to do."
Section 5 (1) (d) lays down that if a public servant by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, he commits the offence.
Section 5 (2) makes the offence of criminal misconduct punishable with imprisonment which may extend to seven years or with fine or with both. Subsection (3) is an important piece of legislation to the effect that where a person is charged under section 5 (1) and it is found that the accused person cannot satisfactorily account for the pecuniary resources or property disproportionate to his known sources of income, then the fact that he has such extensive pecuniary resources or property is sufficient to presume, until the contrary is proved, that the accused person was guilty of criminal misconduct in the discharge of his official duty and a convic tion for that offence shall not be invalid by reason only that it is based solely on such presumption. It is clear, therefore, that where a person is charged with criminal misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the Court is entitled to come to the conclusion that the amassing or such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct. Such a presumption cannot be drawn in the case of a prosecution under sections 161, 165 and 409, Penal Code.
Section 6 provides that for the prosecution of an offence of criminal misconduct under section 5 (2) or for an offence under section 161 or 165, Penal Code, previous sanction 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 section 342, Penal Code, as it stood before the recent amend ment, no accused person was entitled to be administered an oath and thereby competent to testify in a Court of law in a case in which he is accused; under section 7 any person charged with an offence punishable under section 161 or section 165 or section 165‑A, Penal Code, or under subjection (2) of section 5, 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 section 5 (1) (c). It will be useful to institute a comparison between section 405, Penal Code, and section 5 (1) (c) of Act 11 of 1947. The question of entrustment is common under section 405, Penal Code and under section 5 (1) (c), Prevention of Corruption Act. Whereas under section 405, Penal Code dishonest misappropriation or conversion to his own use of that property would be the necessary criterion, with regard to section 5 (1) (c) the misappropriation or conversion may be either dishonestly or fraudulently or otherwise.
Then again there is a further fact under section 5 (1) (d) that if the public servant by corrupt or illegal means or otherwise abuses his position as a public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage, then he will be guilty of the offence. We may, therefore, give below the ingredients of the two sections:
Section 405 of the Indian Penal Code
Prevention of Corruption Act 11 of 1947 Section S (1):
1. Entrusting any person with property or with any dominion over property 2. The person entrusted. (a) dishonestly misappro‑ printing or converting to his own use that property. (b) dishonestly using or dis‑ posing of that property or wilfully suffering any other person to do so in viola‑ tion‑ (i) of any direction of law prescribing the mode in which such trust is to be discharged, or. (ii) of any legal contract made touching the dis charge of such trust.
dishonestly or fraudulently misappropriating or otherwise converting for his own use any property entrusted to him, or under his control as a public servant or allowing any other person to do so. (d) If he by corrupt of illegal means or be other abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Now `dishonestly' as defined in section 24, Penal Code, connotes the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person and section 25 defines `fraudulently' as doing a thing with intent to defraud but not otherwise. It is, therefore, clear that section 5 (1) (c) is wider in ambit than section 405, Penal Code.
The argument of the learned counsel for the appellants is that though the offences under the two provisions are identical, there are some advantages where the trial is under section 5 (1) (c) and certain disadvantages as well. The advantages 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 section 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 section 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 presump tion referred to in section 4(3) can be drawn against the accused if it is found that he has pecuniary resources or 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 subsections (1) and (2) of section 4. These differences, according to the learned counsel for the appellant, do not in any way make the offence under section 5 (1) (c) different from the offence under section 409, Penal Code, but that only another method of procedure is prescribed and a different mode of approach is laid down when an offence under section 5 (1) (c) is enquired into or tried.
Mr. Isaacs, strenuously urges that if there are two different statutes, one enacted later than the other, and if the later statute deals with the same subject‑matter, the two cannot stand together and the earlier one being redundant or repugnant must be deemed to have been repealed. The result is that whereas in this case there are penal statutes dealing with the same subject‑matter and the penalties and procedure prescribed by the statutes are different from each other, then…
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