1. References Nos. 7 to 17 have been made to us by the learned Additional Special Judge, Poona, and the learned Additional Special Judge has taken the view in these references that the order of the learned Magistrate holding that he had no jurisdiction to try a case where a public servant was charged under Section 409, Penal Code, was not a proper order and it should be set aside and the case should be referred back to the learned Magistrate for trial. We have also a reference made by the learned Additional Sessions Judge, Thana, where he has taken the view that a committal order passed by the Magistrate is without jurisdiction and it should be quashed inasmuch as the Magistrate has dealt with a case against a public servant under Section 409 when he had no jurisdiction to do so.
2. The question that arises on these references is whether in view of Act 2 of 1947, the Prevention of Corruption Act, 1947, and the Criminal Law Amendment Act, 46 of 1952, it is open to the State to prosecute a public servant under Section 409 according to the procedure laid down in the Criminal Procedure Code, or whether the prosecution can only be instituted and conducted in the manner laid down in Act 2 of 1947 and Act 46 of 1952.
Now, Act 2 of 1947 was passed for the specific purpose of preventing corruption and Section 5 deals with the commission of certain kind of offences by a public servant, and Sub-section (1) (c) of that section provides that if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, it would be an offence falling under that section. Sub-section (2) of that section provides for punishment of offences falling under Section 5(1) and the punishment provided is imprisonment for a term which may extend to seven years or with fine, or with both.
Section 6 deals with the manner in which offences under this Act are to be investigated, and Section 6(1) requires a sanction with regard to the cognizance of offences punishable under Section 161 or 165, Penal Code, or under Sub-section (2) of Section 5 of this Act. Section 7 makes a person charged with an offence punishable under Section 161 or 165 or 165-A, Penal Code, or Sub-section (2) of Section 5 of this Act a competent witness for the defence.
The Criminal Law Amendment Act created certain new offences and Section 6 provided for the appointment of Special Judges and Section 7 made certain offences solely triable by these Special Judges, and among the offences are the offences which fall under Section 5(2), Prevention of Corruption Act. Section 10 provides that all cases triable by a Special Judge under Section 7, which immediately before the commencement of this Act were pending before any Magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases; and the view taken by the Magistrate in the references made by the Additional Special Judge at Poona and the Additional Sessions Judge, Thana, is that inasmuch as the offence with which the public servants were charged in these various cases fell within the definition of Section 5(1)(c), the only Court which could try them was the Court of a Special Judge appointed under the Criminal Law Amendment Act and these offences could only be tried after the requisite sanction was obtained.
It is true that an offence which falls under Section 409, Penal Code, would also fall under the offence enumerated in Section 5(1)(c), but the question that we have to consider is whether with regard to public servants the Legislature has abrogated the provisions of Section 409, Penal Code, and has provided that a public servant committing an offence under Section 409 can only be proceeded against under the Prevention of Corruption Act and the Criminal Law Amendment Act. In other words, could it be said, reading these two statutes which have been recently passed, that the proceedings under the Criminal Procedure Code are no longer available to the State when it wishes to proceed against a public servant for an offence alleged to have been committed under Section 409, Penal Code?
In our opinion, the very short and simple answer to this question is supplied by the Legislature itself. The Punjab High Court at one time took the view that the provisions of Section 409 'quae' a public servant were superseded by the Prevention of Corruption Act and in order to rebut this view the Legislature amended the Prevention of Corruption Act and by Act 59 of 1952 enacted Sub-section (4) of Section 5, and when we turn to that sub-section it provides:
'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 herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.'
Therefore, 'it is clear that the provisions of Section 5 do not derogate from any other provision of law. They do not derogate from the provisions of Section 409 or the Criminal Procedure Code with regard to that section. It is equally clear that the special procedure set up under the Prevention of Corruption Act does not entitle a public servant to insist that the only proceeding which could be instituted against him must be under the special Act and not under the Criminal Procedure Code. Therefore, the Courts would have jurisdiction as they had before to proceed against a public servant under Section 409 according to the procedure laid down under the Criminal Procedure Code notwithstanding the special provisions contained in the Prevention of Corruption Act and the Criminal Law Amendment Act.
3. Our attention has been drawn by the Government Pleader to a series of decisions of this Court, both of Division Benches and of single Judges, where a contrary view has been taken. Ordinarily it would have been our duty to consider these judgments and to inquire how those decisions were arrived at, but fortunately it is not necessary to do so in this case because it is clear that these decisions were arrived at without the attention of the learned Judges being drawn to the provisions of Section 5(4). If those decisions had considered the provisions of Section 5(4) and had come to a contrary conclusion, then undoubtedly it would have been our duty to overrule those decisions if we took a contrary view.
But inasmuch as those decisions have been arrived at without consideration of Section 5(4), in our opinion it is unnecessary to consider those decisions. Our decision is based on Section 5(4) as in our opinion the only possible view that could be taken in view of the clear language used by the Legislature is that the ordinary Courts of the land have jurisdiction to proceed against a public servant in respect of an offence alleged to have been committed under Section 409, Penal Code.
4. We, therefore, accept the references made by the learned Additional Sessions Judge, Poona, and quash the orders passed by the learned Magistrate in each of these cases, and we direct that the cases be sent back to the learned Magistrate with a direction that he should deal with them according to law.
5. With regard to Reference No. 46 of 1954, we reject the reference and we confirm the order of committal passed by the learned Magistrate.
6. Order accordingly.