Jaganmohan Reddy, J.
1. This criminal revision is filed by the accused on the ground that the Magistrate has no jurisdiction to try the case or to take cognizance of the offence after the enactment of Criminal Law Amendment Act, 46 of 1952, and the extension of Corruption Act to Part B States.
2. The facts of the case are evident from the challan dated 13-10-1952 filed by the Police against the accused under Section 342, Hyderabad Penal Code, corresponding to Section 409, Indian Penal Code, which states as follows:
1. The accused Major K. Jayaram Iyer, a public servant in the employ of the Central Government, just after Police Action, took over the administration of the Post Offices at Hyderabad in the capacity of a Liaison Officer on 18-9-1948 and assumed charge as the Post-Master General of the Hyderabad State Postal Services on 27-10-1948, and worked as such till he relinquished his said Office and proceeded on leave, with effect from 1-4-1950.
2. Property as per List 'A' attached was purchased at the instance of the accused during tenure of his Office out of Government funds for Government purposes.
3. Accused had entrustment of and dominion over the set of Government property mentioned in List 'A' as a public servant and dishonestly misappropriated and converted! the same to his private use, thus committing Criminal Breach of Trust punishable under Section 409, Indian Penal Code (342 Hyderabad Penal Code) at Hyderabad-Deccan.
4. Property with respect to which criminal breach of trust was committed and was seized from the custody of the accused is listed in list 'B' annexed.
5. Sanctions under Section 197, Indian Criminal Procedure Code of both the Central and Hyderabad State Governments are filed herewith.
6. The accused was arrested on 5-11-1950, at Kuttalam and was produced before the Chief Presidency Magistrate, Madras, on 6-11-1950, from where he was released on bail on the same date.
7. It is requested that he may very kindly be summoned to stand his trial in this Court.
3. The grounds on which the revision is sought to be pressed may be stated briefly as follows: As the facts constituting an offence under Section 342, Hyderabad Penal Code, also constitute an offence under Section 5(2)(c), Prevention of Corruption Act which describes the same offence and as according to Section 26, General Clauses Act, when an act is an offence under different enactments the person is liable under either or any of them, the Magistrate had no jurisdiction to take cognizance of the case against the accused, after the extension of Prevention of Corruption Act to Hyderabad State and the enactment of Criminal I am Amendment Act. Learned Advocate for the revision-petitioner submits that the ingredients of the offences under Section 342, Hyderabad Penal Code and Section 5(2)(c), Prevention of Corruption Act are similar, as such the procedure prescribed in the latter Act, viz., the Prevention of Corruption Act, read with the Criminal Law Amendment Act, should be followed in the trial for an offence of that nature. It is, therefore, necessary to examine the provisions of these sections in relation to the dates of enforcement of the enactment.
4. The Prevention of Corruption Act, 1947, was passed by the Indian Legislative Assembly with a view to more effectively prevent bribery and corruption by a public servant which are already offences under Chapter IX of the Indian Penal Code. Section 2 states that a public servant for the purposes of that Act means a public servant as defined in Section 21, Indian Penal Code. Section 3 provides that offences punishable under Sections 161 and 165, Indian Penal Code are deemed to be cognizable offences for the purposes of the Code of Criminal Procedure, notwithstanding anything to the contrary contained therein and Section 5-A prohibits any Police Officer below the rank of Assistant Commissioner in the Cities of Madras and Calcutta, a Superintendent of Police in the City of Bombay and elsewhere a Deputy Superintendent of Police from investigating any offence under Sections 161, 165, Indian Penal Code or Section 5(2), Prevention of Corruption Act without an order of a Magistrate of the first class or make any arrest therefor without a warrant.
Section 4 ceates a presumption against the accused in a trial for an offence punishable under Section 161 or Section 165, Indian Penal Code who is proved to have accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration which he knows to be inadequate. Sub-section (2) lays down a similar presumption against the person who has offered or at-tempted to offer a bribe and Sub-section (3) states that notwithstanding anything in Sub-section (1) or (2) the Court may decline to draw such a presumption if the gratification or thing aforesaid is in its opinion so trivial that no inference of corruption may fairly be drawn.
Section 5(1) defines criminal misconduct and Sub-section (2) thereof makes the same punishable. Section 5 is in the following terms:
5. (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such, as is mentioned in Section 161, Indian Penal Code, 45 of 1860, or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) 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, or
(d) if he, 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.
(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption,
(4) 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 proceedings which might, apart from this section, be instituted against him.
5. Section 6 relates to previous sanction for prosecution for an offence punishable under Section 161 or 165, Indian Penal Code or Sub-section (2) of Section 5 of the said Act, which is alleged to have been committed by a public servant. Section 7 makes a public servant, accused of an offence under Section 161 or 165 or 165-A, Penal Code or Sub-section (2) of Section 5 of the Act a competent witness for the defence and permits him to give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial, subject to certain conditions laid down in the proviso.
6. The offences described in Section 5 originally were to remain in force for a period of three years, but later by Amending Act 2 of 1952, the period has been increased to five years. By a second Amendment Act 49 of 1952 certain amendments were made to Sections 3, 4, 5, 6 and 7 and a new Section 5-A has been added which have been noticed in substance as aforesaid.
7. It will be seen from the provisions of the said Act that:
(i) the trial of a public servant on charges for an offence under Sections 161 and 165, Penal Code has to be conducted in accordance with the procedure laid down in the Prevention of Corruption Act. The changes introduced by the Act are mainly regarding the presumption to be drawn against an accused, the making of the offences under Sections 161 and 165 cognizable under Section 3 and the provision for investigation into these offences as well as offences under Section 5(1) by officers of a certain rank under Section 5-A, the necessity of the sanction of the appropriate authority under Section 6 and the privilege of the accused to give evidence on oath and to be & competent witness under Section 7;
(ii) Sub-sections 1(a) and (b) of Section 5 though more or less based on Sections 161 and 165 created new offences in that they make the case of a public servant habitually accepting or obtaining bribes a distinct offence. Clause (c) of Section 5 has Been held to be similar to an offence under Section 409, Indian Penal Code. Vide - 'The State v. Gurcharan Singh' AIR 1952 Punj 89 (A) arid - 'Mainabai v. Meghraj' AIR 1952 Madh B 139 (B), although Malik C. J., in - 'Bhup Narain v. State' : AIR1952All35 observed that 'the definition of criminal misconduct in Section 5 and Sub-sections (b) and (c) would include cases which would not fall under any provision of the Penal Code.
8. The offence described in Clause (c) is more or less similar to Section 409, Penal Code, except with respect to 'mens rea' which is enlarged for the purposes of Section 5(c). For a breach of trust the act or omission of the accused should be dishonest, while under Section 5(c) it may be dishonest or fraudulent. Sections 24 and 25, Indian Penal Code respectively define words 'dishonestly' and 'fraudulently in the following terms:
whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'.'
'A person is said to do a thing 'fraudulently' if he does that thing with intent to de-fraud but not otherwise.'
The words 'dishonestly.' and 'fraudulently' do not mean exactly the same thing. A dishonest act is not necessarily a fraudulent act. The elements which make an act fraudulent are deceit or intention to deceive and in some cases even mere secrecy. Where there is neither the intention to deceive nor secrecy, the act though dishonest is not fraudulent,
(iii) Sub-clause (d) is a totally new offence which makes the act of a public servant who by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or any other person any valuable thing or pecuniary advantage an offence. Vide - 'Mulshankar v. Govt. of Bombay' : AIR1951Bom233 ;
(iv) An offence under Section 161, Penal Code is punishable by imprisonment of either description for a term which may extend to three years or with fine or with both and an offence under Section 165 is punishable with simple imprisonment which may extend to a term of two years, or fine or with both. An offence under Section 409 is punishable with transporation for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Sub-section (2) of Section 5, Prevention of Corruption Act in fact makes the sentence under Sections 161 and 165, I. P. C. more severe and the sentence for an offence under Section 5(c) is made less severe by prescribing a punishment extending to seven years or with fine or with both.
9. It is clear that when the offence was alleged to have been committed by the accused neither the Prevention of Corruption Act, 1947, nor the Criminal Law Amendment Act of 1952 was in force. The offence was one chargeable under Section 342, Hyderabad Penal Code and triable under the procedure laid down in the Hyderabad Criminal Procedure Code. On 1-4-1951, however, the Indian Criminal Procedure Code was applied to Part B States by Act 1 of 1951 and the Indian Penal Code and the Prevention of Corruption Act were enforced by the Part B States (Laws) Act 3 of 1951. In so far as the procedure for criminal trials was concerned by virtue of Section 25 of the Code of Criminal Procedure Amendment Act 1. of 1951 if immediately before the day on which the Indian Criminal Procedure Code came into force in a Part B State, there is in force in that State any law which corresponds to the said Code, such corresponding law shall on that day stand repealed but not so as to restore any jurisdiction or form of procedure not then existing or followed or to render unlawful the continuance of any confinement which is then lawful. Sub-clause (3) of the said section lays down that
the provisions of the said Code (Cr. P. C.) shall apply to all proceedings instituted after the coming into force of the said Code in any Part B State and, so far as may be, to all cases pending in any Criminal Court in that State when the said Code comes into force therein.
It is, therefore, evident that this being a procedural law would apply not only to cases which have to be tried after the coming into force of the said Code, but also to all pending cases so far as it is possible or practicable. The provisions of the Indian Penal Code or the Prevention of Corruption Act or any other law which has been applied to the Hyderabad State by the Part B States (Laws) Act apply only to such offences which are committed after the enforcement of the said Act. Section 6 of the Part B States (Laws) Act provides as follows:
If immediately before the appointed day (1st of April 1951) there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed: Provided that the repeal shall not affect-
(a) the previous operation of any law so repealed or anything duly done or suffered thereunder,
(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or
(c) any penalty, forfeiture, or punishment incurred in respect of any offence committed against any law so repealed, or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; & any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed...
10. Thus, it may be seen that where an act or omission is an offence under any provision of law in force before the coming into operation of any of the enactments extended by the Part B States (Laws) Act of 1951, or any investigation or legal proceeding relating thereto pending on that date, it will be dealt with under the corresponding law which has been repealed, as if the Part B States (Laws) Act had not been passed. In other words the operation of the provisions of enactments applied by Part B States (Laws) Act is prospective and not retrospective. It should also be mentioned here that Clause (1) of Article 20 of the Constitution of India provides that no person shall be convicted of any offence except for violation of a Law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
There is no definition of offence in the Constitution, but inasmuch as the Indian General Clauses Act of 1897 is made applicable to the interpretation of the Constitution by virtue of Article 367, it is necessary to have recourse to the provisions of Clause (38) of Section 3 of the said Act which defines an offence to mean any act or omission made punishable under any law for the time being in force. It follows, therefore, that if the act or omission was punishable as a violation of a law in force at the time, a person committing such act or omitting cannot be convicted of an offence for the violation of a law not in force at the time but which subsequently came into force.
11. The learned Advocate for the petitioner contends that where an offence which was punishable is redescribed or rechristened as it were by a subsequent enactment prescribing a particular procedure for its trial, the accused should be charged only under the subsequent enactment notwithstanding the fact that the enactment was not in force at the time when the act or omission constituting the offence was done. He relies upon certain passages in Maxwell's Interpretation of Statutes (9th Edition) pages 194 and 195 and Craies on Statute Law pages 342 and 343. Maxwell states at page 194:
Where a statute alters the quality and incidents of an offence, as by making that which was a felony merely a misdemeanour, it would be constructed as impliedly repealing the old law...
'Again, where the punishment or penalty is altered in degree but not in kind, the later provision would be considered as superseding the earlier one.
At page 195 it is further observed:
Indeed, it has been laid down generally, that if a later statute again describes an offence created by a former one and affixes a different punishment to it, varying the procedure - giving, for instance, an appeal where there was no appeal before - the earlier statute is impliedly repealed by it.
Craies observes as follows:
If, however,' as Lord Campbell said in - 'Mitchell v. Brown' (1858) 120 E R 909 (E), 'a later statute again describes an offence which had been previously created by a former statute, and affixes a different punishment to it, varying the procedure, and giving an appeal where there was no appeal before, we think the prosecutor must proceed for the 'offence under the later statute. If the later statute expressly altered the quality of the offence as by making it a misdemeanour instead of a felony or a felony instead of a misdemeanour, the offence could not be proceeded with under the earlier statute and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution and not cumulatively....'
'If', said Lord Abinger in - 'Henderson v. Sherborne' (1837) 150 E R 743 (F), 'a crime be created by statute with a given penalty & be afterwards repeated in another statute with a lesser penalty attached to it, a person ought not to be held liable to both. There may, no doubt, be two remedies for the same act, but they must be of a different nature'; and 'where the same offence is re-enacted with a different punishment it (the subsequent enactment) repeals the former law.
12. The cases cited for these propositions are all cases decided before the English Interpretation Act of 1889, (52 and 53 Vict. C. 63) was enacted. Section 33 of this Act provided that
where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, whether any such an Act was passed before or after the commencement of this Act, the offender shall, 'unless the contrary intention appears', be liable to be prosecuted and punished under either or any of those Acts 'or at common law'; but shall not be liable to be punished twice for the same offence.
This section is analagous to Section 26, General Clauses Act except for the underlined (here into quotation) words. Section 33 of the Interpretation Act deals with an act or omission constituting an offence under two or more Acts, or both under an Act & at common law. Section 26, General Clauses Act is wider in scope. Not only does it deal with an act which is an offence under the Penal Code, & also under a special or local Act, & an Act which is an offence under two or more local Acts, but also, it seems, having regard to the meaning of 'enactment', with an act which is an offence under two or more sections of the same Act.
The English section was enacted to resolve a difficulty arising where an Act created a new offence, but the facts which constituted that offence also constituted an offence under another . enactment. The law always favoured the maxim 'nemo debet bis puniri pro uno delicto' (that no man should be punished twice for one fault). It appears to us that the passages cited, apart from the fact that they are based on case-law decided before the Interpretation Act came into force, deal with statutes which altered the quality and the incidents of an offence as by making it a felony instead of misdemeanour or by some other change from which an intention to repeal an offence created by a prior law may have been inferred. The intention to repeal a prior statute by subsequent enactment under both of which an act or omission is an offence is clearly saved by Section 33, Interpretation Act by the use of the words 'unless the contrary intention appears'. Section 26, General Clauses Act does not, however, make any similar provision. Apart from this the provisions of the Penal Code also save offences which are punishable under the local or special Acts.
13. Section 2 of the Indian Penal Code of 1860 would show that every person is liable to punishment under the Code and not otherwise for every act or omission contrary to the provision thereof, of which he shall be guilty. Section 5 which is in the nature of a saving clause to B. 2 left offences defined by local and Special Acts out of the purview of the Code and declared them to be punishable as theretofore. In other words it declares that the Penal Code is not intended to suspend, vary or affect any of the provisions of a special or local law. As observed in - 'Emperor v. Joti Prasad' AIR 1932 All 18 (G) by Sir Grimwood Hears at p. 21:
The one enactment has not the effect of repealing the other. The two co-exist without conflict. In order to leave no doubt on this point, the law on the subject has been declared by the express provision of Section 26 of the General Clauses Act....It is clear, therefore, that where an act is punishable under a special law and also under a general statute, the offender could be proceeded with under either or both but could not be punished twice for the same act or omission which constitutes the offence. Where there is nothing in the special Act to exclude the operation of the general criminal law, it cannot be inferred that there was an intention on the part of the legislature to exclude it.
In the afore-mentioned case the question was whether a person could be convicted both under Section 9-A, Salt Act (12 of 1882) and under Section 117, Penal Code and sentenced for both the offences. It was held that he could be so punished, on the basis that they were not the same offence though under Section 26, General Clauses Act the offender was not liable to be punished twice for the same offence. It was further observed by his Lordship at p, 23:
But it is perfectly clear that, although in view of Section 26, General Clauses Act he could be prosecuted and convicted, both under the special enactment and also the general law, he could be punished only once either under the former or the later.
14. In - 'Emperor v. Bhogilal' AIR 1931 Bom 409 (H), where the accused had been found in possession of contraband salt while on their way to Gujrat Prantik Samithi, an association, declared unlawful and were thereon convicted under the Salt Act as well as under the Criminal Law Amendment Act, it was held that according to Section 26, General Clauses Act, the convictions should have been under either of the Acts and not under both; because under Section 26 the accused could not be punished twice for the same act. Beaumont C, J., at p. 410 while dealing with the provisions of Section 26, General Clauses Act (10 of 1897) observed that:
the word 'offence' at the end of the Section, read with the definition in Section 3, Sub-section (37) means, I think, an act or omission. In the present case, you have got an act alleged to constitute an offence under two enactments, and Section 26, General Clauses Act expressly provides that the accused shall not be punished twice for the same act. I think, therefore, that the accused were only liable to be fined once, and that the second sentence of fine must be set aside.
15. In - 'Segu Baliah v. Ramasamiah' AIR 1918 Mad 460(2) (I), a Single Bench of the Madras High Court dealt with the case of an Official Receiver being granted permission by the District Court to prosecute under Sections 421 and 424, Penal Code to an insolvent person who within the knowledge of the Receiver or upon the information available to the Receiver is alleged to have committed an offence under the said Sections. It was argued that the prosecution ought to be under Section 43, Provincial Insolvency Act and the Court was asked to hold that that Section virtually repealed Sections 421 and 424, Penal Code. It was held that Section 26, General Clauses Act is quite express on this point.
16. Abdur Rahim J. dealing with the case of - 'Chandi Pershad v. Abdul Rahman' 22 Cal 131 (J), in which it was held that where an act has been made punishable under the Municipal Act the person contravening the provision cannot be held liable under the Penal Code and the legislature had evinced an intention to that effect, observed:
that if this case is intended to support a general proposition that because a special enactment deals with an offence similar to the offence which is dealt with by the Indian Penal Code, therefore, the provisions of the Indian Penal Code, should be taken to have been repealed to that extent, I am not prepared to accept that proposition.
In the Calcutta case it appears that Section 26, General Clauses Act was not brought to the notice of the learned Judges; but in the case of - 'Mohanlal Saksena v. Emperor' AIR 1930 Oudh 497 (K), which is also a case under Salt Act and involving the consideration of Section 117, Indian Penal Code, a Bench of the Oudh Chief Court consisting of Wazir Hasan, C. J. and Pullan J., held that the doctrine 'generalia specialibus non derogant' applied and that an offence of abetment punishable under Section 9(c), Salt Act of 1882 could not be dealt with under Section 117, Penal Code. At pp. 499-500 of the judgment it was observed that:
Where an act is an offence under a specific law and such an offence can also be punished under that specific law that law and not the general law would apply and this is the principle laid down in Section 5, Penal Code.
17. This was considered in detail in the case of - AIR 1932 All 18 (G), and their Lordships of the Allahabad High Court did not accept the principle laid down in that case. It would appear that the learned Judges of the Oudh Chief Court had proceeded on the assumption that it is agreed on both sides that the act for the abetment of which persons were convicted is not a separate offence under the Penal Code, but an offence exclusively under the Salt Act. They were of the view that Section 26, General Clauses Act applied to cases where the accused was prosecuted for the act or omission under both the Penal Code and under the special regulation, but it generally applied to a case where the act is an offence exclusively under the Special Act.
18. A similar view has been held by the latest decision in - AIR 1952 Punj 89 (A), in which Khosla and Falshaw JJ., held that after the changes introduced by Act 2 of 1947, particularly regarding the necessity for previous sanction of the appropriate authority for prosecution, the right of accused to give evidence as a witness and the change of sentence, it is not open to the authorities concerned, when a public servant is accused of committing an offence which would be punishable either under Section 409, Penal Code or Section 5(1)(c) of the Act, to choose which of these two sections the offender should be prosecuted under, and by choosing to proceed under Section 409, Penal Code, to dispense with the necessity of any previous sanction in the case of a public servant removable from office by an authority subordinate to the Provincial or Central Government and also to deny him the privilege of giving evidence on oath as a competent witness on his own behalf. Falshaw J., reconsidered his previous decision in Cri. Revn. Petn. No. 191 of 1948 (Punj) (L)'. The question that fell for determination was that when an act or omission constituted an offence under both Section 409, I. P. C. and Section 5(2), Prevention of Corruption Act, whether the accused should be prosecuted under the Prevention of Corruption Act and not under Section 409, I. P. C. Meeting the argument that the passages in Max-well and Craies were based upon case-law which was decided before the enforcement of the English Interpretation Act of 1889, Falshaw J., observed:
I do not, however, consider the fact that the cases relied on by Craies and Maxwell were prior to the Act of 1889, or the difference in the wording of Section 33 of the Act and Section 26, General Clauses Act, really have much effect on the argument, or on the principles set forth by Craies and Maxwell, which are obviously fundamental principles governing the interpretation of statutes. I do not consider that the terms of Section 26, General Clauses Act, broad as they are, preclude the possibility of repeal by implication and in order to decide the point it is again necessary to consider the provisions of Act 2 of 1947.
After considering the various provisions of the Act he said that he would adhere to his previous decision and held again that as long as Section 5 of Act 2 of 1947 remains in force the provisions of Section 409, Penal Code, so far as they concern offences by public servants, are 'pro tanto' repealed.
19. Mr. Jayarama Iyer, the learned Advocate for the petitioner, submitted that he is unable to support the proposition laid down in the Punjab judgment that Section 409, I. P. C., is 'pro tanto' repealed by Section 5(1)(c) of Act 2 of 1947. What he contends is that the manner of the trial of a public servant charged with misappropriation of public funds has been considerably modified, changed or extended by the Prevention of Corruption Act 2 of 1947 and that Section 5(1)(c) redescribes the same offence as that under Section 409, I. P. C., with the object of affording to a public servant, even where he is charged with an offence under Section 409, I. P. C., the benefit of a trial under a different procedure to that laid down in the Criminal Procedure Code, In these circumstances he contends that the accused must be charged under Section 5(2), Prevention of Corruption Act, and not under Section 342, H. P. C., so that the procedure prescribed for the trial of such offences under the said Act and under the Criminal Law Amendment Act, 46 of 1952, may be applied. In our view this argument ignores the provisions Of Section 26, General Clauses Act inasmuch as that provision envisages the possibility of the same act or omission not only being an offence under different enactments but of the accused being charged under either or any of them, though he shall not be punished twice for the same offence. We are further of the view that in the presence of the provisions contained in the said Section 26, General Clauses Act the principle of 'generalia specialibus non derogant' cannot be applied and there is no question of a subsequent enactment repealing a prior enactment which makes a similar act or omission punishable.
20. In - 'Arsala Khan v. Emperor' AIR 1935 Pesh 18 (M). it was held that Section 26, General Clauses Act does not act as a bar to trial or conviction but merely as a bar to duplicated punishment. In - 'Karim Bux v. Rex' : AIR1950All494 , it was contended that the offence having been committed on 2nd or 3rd March, 1947, and the Prevention of Corruption Act 2 of 1947 requiring the previous sanction for the prosecution, having come into force on 11-3-1947, i.e., after the offence had been committed, no sanction was at all required as the procedure applicable to the investigation of the offence would be the procedure prevailing on the date of its commission, Agarwal, J., held that this argument is without force as the rules of procedure are, in the absence of anything to the contrary, retrospective in their operation. He observed at p. 495:
It at the date of the complaint the law makes it incumbent upon a Court to take cognizance only of such offences for which there is a previous sanction, then unless the sanction to prosecute is produced no Court will take cognizance of the offence even though the offence may have been committed before the Act requiring sanction came into force.
This view arises on the facts of the case and in the presence of the provisions of Section 6, Prevention of Corruption Act which specifically prohibit cognizance of offences under Section 161 or 165, Penal Code or Sub-section (2) of Section 5 of the Act committed by a public servant except with the previous sanction. It does not appear from the report that the accused in that case was being charged under Section 5(2), Prevention of Corruption Act, As he was being charged under Section 161, Penal Code, the sanction was a condition precedent to cognizance being taken whether the offence under the Penal Code was committed before the coming into force of the Act or after. It would have been a different matter had the question been whether he should be tried for an offence under Section 5(2), Prevention of Corruption Act. This would have then raised the question whether the accused could be charged under the Prevention of Corruption Act, as at the date of the commission of the act or omission that act was not in force.
21. In - : AIR1952All35 , the accused was prosecuted for an offence under Section 409 and other sections of the Penal Code and the charge-sheet did not mention the Prevention of Corruption Act, The trial proceeded in accordance with the provisions of the Criminal Procedure Code and the accused was convicted. It was argued on the basis of a previous decision of that Court in - 'Kripa Shanker v. State' Cri Misc. No. 506 of 1951, D/- 5-6-1951 (All) (O), that where a public servant is found guilty of an offence which amounted to criminal misconduct as defined in Section 5(1), the prosecution must be deemed to be under Section 5(2), Prevention of Corruption Act. In other words whether the accused is charged under that Section or under the appropriate Section of the Penal Code, the Prevention of Corruption Act should apply. It may here be stated that the Advocate for the applicant also advances a similar argument in this case. Malik C. J., after examining the provisions of the Prevention of Corruption Act, observed at p. 37:
The general rule 'generalia specialibus non derogant' on which reliance has been placed has not been held to be of Universal application by Courts in India.
After referring to the case of - 'Queen v. Hussun Ali' 5 NWPHCR 49 (P); - 'Proceedings of the High Court 22-2-1876', 1 Mad 55 (Q); - 'Queen v. Ramchandrappa' 6 Mad 249 (R); - 'Emperor v. Bhalchandra Trimbak' AIR 1929 Bom 433 (S); - 'Emperor v. Abdul Hamid' AIR 1923 Pat 1 (SB) (T); - 'Kuloda Prosad Majumdar v. Emperor' 11 Cal W N 100 (U), and Section 26, General Clauses Act, his Lordship further observed that:
In the charge sheet no mention has been made of the Prevention of Corruption Act and the trial, so far as we can see, has proceeded in accordance with the provisions of the Criminal Procedure Code and the charge sheet mentions only sections of the Penal Code. At the conclusion of the trial the accused must be convicted, if his guilt is proved, in accordance with the provisions of the Penal Code and it cannot be said that the Court convicting the accused can apply Sub-section (2) of Section 5, Prevention of Corruption Act and sentence him to seven years' rigorous imprisonment where the section under which he is charged provides for a lesser sentence. The applicant not having been charged under Sub-section (2) of Section 5, Sections 4 and 7 of the Act cannot be made applicable to him so that no presumption can be made against the accused nor can he be examined as a witness at his own request.
22. A similar view was taken in the case of - 'Govindaswami, in re' : AIR1954Mad401 and in the case of - V. V. Satyanarayana Murthy, In re' : AIR1953Mad137 , where it was held, dissenting with the case of .- AIR 1952 Punj 89 (A), that Section 409, I. P. C. cannot be considered to have been repealed by Section 5(1)(c), Prevention of Corruption Act, In the latter case Ramaswami J. observed:
Although an offence is expressly made punishable by a special or local law, it will be also punishable under the Penal Code, if the facts come within the definition of the Code: - '6 Mad 249 (R)'. The general principle of law is that the Penal Code would apply if the acts fall within the Indian Penal Code though there may be specific offences and penalties under the Special Act.
It is suggested by the learned Advocate for the applicant that both - : AIR1952All35 and - : AIR1953Mad137 were decided before the enforcement of the Criminal Law Amendment Act (46 of 1952) on 27-9-1952, Section 7 whereof provides for the trial of offences mentioned in Section 6 triable by Special Judges only. Further on the authority of - 'Shanker Singh v. State' : AIR1952All833 , he submits that where a special forum is provided for by any Act which says that that alone shall try certain offences, other Courts have no jurisdiction. It would be a sufficient answer to this argument to point out that a pre-requisite for the applicability of the procedure prescribed under Sections 6 and 7, Criminal Law Amendment Act is that the trial should be for offences punishable under Sections 161, 165 or 165-A, Penal Code or Sub-section (2) of Section 5, Prevention of Corruption Act (2 of 1947). It is only then that the case will be triable by Special Judges. 'Shanker Singh's case (X)' was dealing with the Uttar Pradesh Panchayat Raj Act which provided by Section 56 thereof for the immediate transfer of cases triable under the said Act to the Panchayat Adalats which shall try the case. In the face of this specific provision, the ordinary Courts had lost their jurisdiction even in pending cases to proceed with or try them.
23. In our view, where an act or omission constitutes an offence both under the Penal Code and under the Prevention of Corruption Act, it is not obligatory to charge the accused with an offence under the latter Act, and unless an accused is so charged under the Prevention of Corruption Act, the procedure laid down under that Act as well as under Sections 6 and 7, Criminal Law Amendment Act cannot apply. It is in order to clarify such doubts about the application of certain sections of the Prevention of Corruption Act, an amendment being Act 69 of 1952 was passed by the Indian Parliament; but in so far as it is relevant for this case, it is only necessary to notice Sub-section (4) of Section 5, providing that the provisions of Section 5 shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained therein shall exempt any pub-bile servant from any proceeding which might apart from that section, be instituted against him. This provision leaves no doubt as to the view we have taken.
In the latest case the Madhya Bharat High Court in - 'Madho Prasad v. State' AIR 1953 Madh B 139 (Y), considered a similar point as that involved in this case, and held that Section 5(1)(c), Prevention of Corruption Act, as it stood prior to the Prevention of Corruption (Second Amendment) Act of 1952, did not 'pro tanto' repeal Section 409, Penal Code, so far as it relates to offences by public servants, and that a public servant could be prosecuted under. Section 409, Penal Code, notwithstanding Section 5(2) of that Act. Dixit J., observed at p. 141:.
Where, therefore, a new offence is created under any enactment, the accused must be dealt with in accordance with the provisions of that enactment. Where on the other hand, a statute makes an act already punishable under some former law, punishable and there is nothing in the later enactment to exclude the operation of the former one, then the accused person can be proceeded against under either of the enactments.
The argument that the applicant in that case should be permitted to be examined as a witness in his defence in accordance with the provisions of Section 7, Prevention of Corruption Act was also negatived on the ground that he was not charged under Sub-section (2) of Section 5 of the said Act.
The learned Advocate submits that these observations are 'obiter dicta' inasmuch as the judgment shows that the applications were ordered to be dismissed on a different grounds and having so ordered the learned Judge proceeded to make his observations as aforesaid. A cursory reading of the above report would show that the contention of the learned Advocate has no force. The argument that was advanced by the applicant's Advocate in that case and opposed by the Government Advocate was, that Section 5(1)(c), Prevention of Corruption Act 'pro tanto' repeals the provisions of Section 409, Penal Code. Dixit J., after setting out these contentions in details said that he was unable to accept the contention of the learned Advocate for the applicant and that the petition should be dismissed, and it is after this he proceeded to give reasons for dismissing the petition. An 'obiter dictum' is an observation which is either not necessary for the decision of the case or does not relate to the material facts in issue. Viewed from this aspect, we fail to see how the aforesaid observations are obiter.
24. We agree with the learned Advocate General's contention that most of the cases cited by the learned Advocate for the applicant are distinguishable as they deal with an act or omission which constitutes an offence both under the Penal Code and the Prevention of Corruption Act, which were in force at the time when the act or omission took place. Even if the view taken in - AIR 1952 Punj 89 (A) that Section 5(1)(c) 'pro tanto' repeals the provisions of Section 409, I. P. C. is taken as correct-with which, however, we have expressed our disagreement -the result would only be 'that Section 342, Hyderabad Penal Code (analagous to Section 409) is repealed on 1-4-1951, when the Prevention of Corruption Act was applied. This does not, however, advance the case any further because Section 6 of the Part B States (Laws) Act 3 of 1951 itself repeals the Hyderabad Penal Code. In these circumstances the question is, under what provision of law the accused has to be charged for an act committed before the application of the Prevention of Corruption Act.
Section 6 of the said Act specifically saves the operation of the Hyderabad Penal Code for punishment of offences committed Under it. No specific case on this point has been cited. The only case which deals with an offence committed before the enforcement of the Prevention of Corruption Act and which was tried after its enforcement is the case of - : AIR1950All494 , but we have pointed out in relation thereto that the question of the accused being charged under Section 5(2), Prevention of Corruption Act did not in fact arise, and that that case is an authority for the proposition that if the accused is charged with Section 161, Penal Code, the procedure prescribed under Section 6 and presumably under Section 7 would be applicable. We have no doubt that the accused in this case can be charged under Section 342, Hyderabad Penal Code and his trial will have to be conducted in accordance with the Indian Criminal Procedure Code. He cannot be charged under the 'Prevention of Corruption Act which was not in existence at the time when he is alleged to have committed the offence both by virtue of Article 20 of the Constitution and Section 6 of Part B States (Laws) Act (3 of 1951).
25. In the view we have taken it appears to us that this revision has no force and consequently it is dismissed.