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Mahdukar Vishram Sawant Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 287 of 1971
Judge
Reported in(1974)76BOMLR328
AppellantMahdukar Vishram Sawant
RespondentThe State of Maharashtra
DispositionAppeal dismissed
Excerpt:
general clauses act (x of 1897), section 26--penal code (act xlv of 1860), section 161--prevention of corruption act (ii of 1947), sections 5 (1)(d), 5 (2)--whether there is bar in awarding separate sentences under section 161, penal code and section 5(1)(d) read with section 5(2) of prevention of corruption act--constitution of india, article 20.;what is prohibited by section 26 of the general clauses act, 1897 is the punishment twice for the same offence if it is covered by or falls under two different enactments. as the offences under section 161, indian penal code, 1860, and under section 5(1)(d) read with section 5(2) of the prevention of corruption act, 1947, cannot be said to be the same offence, there would be no bar in awarding separate sentences under these two sections although..........both these cases the view taken seems to be that offences falling under section 161 of the indian penal code and section 5(1)(a) of the prevention of corruption act are the same and, therefore, section 26 of the general clauses act would be a bar for awarding separate sentences. it was observed (at p. 32) by ramaswami j. in in re p.s. aravamudha's case, referred to above, that.the essential ingredients of the offence under section 5(1)(a) are the same as the ingredients of the offence under section 161, i.p.c. subject to one difference, viz., that the offence under section 5(1)(a) is an aggravated form of the offence under section 161, i.p.c, repetition of the offence under section 101, i.p.c. would amount to the offence of criminal misconduct under section 5(1)(a) of the prevention of.....
Judgment:

Joshi, J.

1. [His Lordship, after dealing with facts and points of law not material to this report, proceeded.] This takes us on to the last point raised by Mr. Rele who submitted that the award of sentences under both the counts was bad in law. In a nutshell, his arguments, which were mainly founded on Section 26 of the General Clauses Act, were to the effect that a man cannot be punished twice for the same offence. In support of his submission, my attention was drawn to the rulings in Lohana Kantilal v. State AIR[1954] Sau. 121 and In re P.S. Aravamudha AIR[1960] Mad. 27. In both these cases the view taken seems to be that offences falling under Section 161 of the Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act are the same and, therefore, Section 26 of the General Clauses Act would be a bar for awarding separate sentences. It was observed (at p. 32) by Ramaswami J. in In re P.S. Aravamudha's case, referred to above, that.

The essential ingredients of the offence under Section 5(1)(a) are the same as the ingredients of the offence under Section 161, I.P.C. subject to one difference, viz., that the offence under Section 5(1)(a) is an aggravated form of the offence under Section 161, I.P.C, Repetition of the offence under Section 101, I.P.C. would amount to the offence of criminal misconduct under Section 5(1)(a) of the Prevention of Corruption Act. It follows, therefore, that the charge framed against the accused that he committed the offence under Section 5(1)(a) of the Prevention of Corruption Act necessarily implies that he had committed the offence punishable under Section 161, I.P.C.

2. Proceeding further and referring to Section 26 of the General Clauses Act, the learned Judge observes that separate sentences are illegal since there is only one act which constitutes an offence under the two enactments. With respect, I am unable to share these views.

3. Section 26 of the General Clauses Act, 1897, which is the foundation for these views, runs thus :

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

The language of the section is clear and what is prohibited is the punishment for the same offence if it is covered by or falls under two different enactments. The primary question would be whether on the language of Section 161, Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act the offence is the same. This would necessitate a comparative reading of both the sections. Section 161, Indian Penal Code, penalises a public servant or one who expects to be a public servant for taking gratification other than legal remuneration in respect of an official act as a motive or reward for doing or forbearing to do any official act, whereas Section 5(1)(d), with which I am concerned, speaks of criminal misconduct by a public servant. The section divides the criminal misconduct into four categories and Sub-section (d) says 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 is said to commit the offence of criminal misconduct in discharge of his duty. It would be clear that this section does not en visage a miscreant who expects to be a public servant. It only contemplates the criminal misconduct of a public servant. Secondly, there is no element of reward or motive for doing or forbearing to do any official act. If a public servant barely obtains any pecuniary advantage, he would be guilty of criminal misconduct, but if he commits such an act, he cannot be convicted under Section 161 of the Indian Penal Code. These two essentials or factors distinguishing the two sections do not seem to have been taken into account in the Madras case and this, to my mind, makes the whole difference. This aspect is made all the more clear by some of the observations in the case of Manipur Administration v. Bira Singh : [1964]7SCR123 . Their Lordships, inter alia, pointed out that both in the case of Article 20(2) of the Constitution of India as well as Section 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder must be for 'the same offence' i.e. an offence whose ingredients are the same. The expression 'the same offence1' appearing in Section 26 of the General Clauses Act having been interpreted in this manner by the Supreme Court, it cannot be said that the offences under Section 161, Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act would be the same offence within the meaning of Section 161. Consequently, there would be no bar in awarding separate sentences under these two sections although propriety may require to pass one sentence only, which is invariably done. In effect, the learned Special Judge, who has awarded rigorous imprisonment for one year under Section 5(2) of the Prevention of Corruption Act, has directed the said sentence to run concurrently with the sentence awarded under Section 161, Indian Penal Code. On the period of detention to be suffered by the accused it makes no difference.

4. There would be one more aspect of this question which has been considered in Om Parkash v. State of U.P. : 1957CriLJ575 and M.P. State v. Veereshwar Rao : 1957CriLJ892 . In the first case i.e. Om Parkash's case, on tracing the history of the legislation of the new enactment, their Lordships have pointed out that:

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. Under Section 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.

Their Lordships were considering the provisions of Section 405, Indian Penal Code, vis-a-vis Section 5(1)(c) of the Prevention of Corruption Act and pointed out that 'a clear comparison and contrast of the different elements constituting the two offences would show that tho offence under Section 405 I.P.C. is separate and distinct from the one under Section 5(1)(c).' Similarly, in Veereshwar's, their Lordships were dealing with an offence punishable under Section 409, Indian Penal Code and it was pointed out that the offence of criminal misconduct punishable under the Prevention of Corruption Act is not identical in essence or in import and content with an offence under Section 409 of the Indian Penal Code. The offence of criminal misconduct defined by Section 5(2) of the Prevention of Corruption Act is a now offence created by that enactment and it does not repeal, by implication, or abrogate Section 409, Indian Penal Code. Those two authorities which make the position quite clear afford an adequate answer to the point raised by Mr. Rele, and, in my opinion, neither Section 26 of the General Clauses Act nor Article 20 of the Constitution of India would be a bar for two-fold punishments.

5. In the result, the appeal is dismissed and the order of conviction and sentence is confirmed. The accused to surrender to his bail.


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