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Akki Veeraiah Vs. State (inspector, Special Police Establishment) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ1078
AppellantAkki Veeraiah
RespondentState (inspector, Special Police Establishment)
Excerpt:
- - 5. learned counsel for the accused contends that, as the offence alleged to have been committed by the accused clearly falls under section 5 (1) of the prevention of corruption act (act 2 of 1947) (hereinafter referred to as the act) the prosecution cannot evade the provisions of that act and charge the accused under section 408, indian penal code. if so, if the accused satisfied the conditions laid down in section 21 of the indian penal code, they would be public servants for the purpose of act 2 of 1947. the result would be that the accused would be public servants under act 2 of 1947 and would not be deemed to be public servants for the purpose of section 409 of the indian penal code. it provided a safe-guard in favour of the accused in so far as it enacted that a police officer.....subba rao c.j.1. this criminal revisional petition has been referred to a bench by bhimasankaram j., on the ground that it raised a question of considerable importance.2. the delhi special police establishment filed a charge-sheet before the joint magistrate, vijayawada, against the two accused venkata subbaiah and veenvva, untlpr section 120-b, i. p. code, read with sections 408 and 477-a, indian penal code. it was alleged that the 1st accused, who was a booking clerk of the bezwada town booking office, and the 2nd accused, who was a clerk in charge of the bezwada town booking office, entered into a conspiracy to commit breach of trust of railway funds and to commit other illegal acts. in the charge-sheet filed before the joint magistrate, it is stated:that in pursuance of the conspiracy.....
Judgment:

Subba Rao C.J.

1. This Criminal Revisional Petition has been referred to a Bench by Bhimasankaram J., on the ground that it raised a question of considerable importance.

2. The Delhi Special Police Establishment filed a charge-sheet before the Joint Magistrate, Vijayawada, against the two accused Venkata Subbaiah and Veenvva, untlpr Section 120-B, I. P. Code, read with Sections 408 and 477-A, Indian Penal Code. It was alleged that the 1st accused, who was a booking clerk of the Bezwada Town Booking Office, and the 2nd accused, who was a clerk in charge of the Bezwada Town Booking Office, entered into a conspiracy to commit breach of trust of railway funds and to commit other illegal acts. In the charge-sheet filed before the Joint Magistrate, it is stated:

That in pursuance of the conspiracy accused 1 and 2 committed criminal breach of trust of Rs. 68-9-0 being the proceeds of the sale of the following card tickets on the dates specified against each and thereby they committed an offence punishable under Section 408, Indian Penal Code.

and

'that in pursuance of the conspiracy accused 1 and 2 falsified the following records and thereby they committed an offence punishable under Section 477-A, Indian Penal Code.

3. After the prosecution adduced evidence, the accused raised before the Joint Magistrate two preliminary objections

(i) that the charge-sheet filed by the Police in the case disclosed an offence punishable under Section 5 (2) of the Prevention of Corruption Act, 1947, and the said Act being a Special Act, it modified to that extent the Indian Penal Code and, therefore, the accused should be tried by a Special Judge in accordance with the Criminal Law Amendment Act of 1952 and (ii) that as one of the objects of the conspiracy was to commit a non cognisable offence under Section 477-A, Indian Penal Code, the Joint Magistrate could not take cognizance of the offence as the previous sanction of the prescribed authority under Section 196-A, Criminal Procedure Code, was not obtained.

4. The Joint Magistrate disallowed both the objections. The above revision was filed against that order.

5. Learned Counsel for the accused contends that, as the offence alleged to have been committed by the accused clearly falls under Section 5 (1) of the Prevention of Corruption Act (Act 2 of 1947) (hereinafter referred to as the Act) the prosecution cannot evade the provisions of that Act and charge the accused under Section 408, Indian Penal Code. The learned Public Prosecutor argues that an offence under Section 5 (1) (c) of the Act is different in content and scope from that under Section 408, Indian Penal Code and that, in any view by reason of the Criminal Law Amendment Act, the prosecution had the option to proceed at their discretion either under the Indian Penal Code. There is a large area of agreement between the contending Counsel but it is necessary to cover the entire field to appreciate the real bone of contention between them. At this stage, it may be convenient to read the provisions of the enactments relevant to the question raised before us.

Prevention of Corruption Act (Act 2 of 1947) : Section 2:

For the purposes of this Act 'Public Servant' means a public servant as defined in Section 21 of the Indian Penal Code.

Section 5:

(1) A public servant is said to commit the offence of Criminal misconduct in the discharge of his duty.

X X X X X X

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.

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. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, a Police Officer below the rank of Deputy Superintendent of Police shall not investigate any offence punishable under Sub-section (2) without the order of a Magistrate of the first class or make any arrest therefor without a warrant. Section 6:

No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act alleged to have been committed by a public servant, except with the previous sanction,

(a) in the case of a person who is employed in connection with the affairs of the Federation and is not removable from his office save by or with the sanction of the Central Government or some higher authority of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority of the Provincial Government;

(c) in the case of any other person of the authority competent to remove him from office.

Section 7:

Any person charged with an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act shall be 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.The Indian Penal Code:

Section 405:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'.

Section 408:

Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 409:

Whoever being in any manner entrusted with property or any dominion over property in his capacity of a public servant - commits criminal breach of trust in respect of that property shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 21:

The words 'public servant' denote a person falling under any of the descriptions hereinafter following namely:

Ninth.-Every officer whose duty it is, as such officer to take, receive, keep or expend any property on behalf of the Government...or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty.

The Indian Railways Act:

Section 137:

Every railway servant shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code (Ss. 161 to 171).

4. Notwithstanding anything in Section 21 of the Indian Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in Sub-section (1).

6. By the Indian Railways (Amendment) Act, 1955 (Act 17 of 1955) in Section 137 of the Indian Railways Act the following provisions were substituted.

(1) Every railway servant, not being a public servant as defined in Section 21 of the Indian Penal Code shall be deemed to be a public servant for the purposes of Chapters IX and X and Section 409 of the Code and Sub-section (4) was omitted.

7. We are not concerned in this case with the amendments introduced into the Indian Railways Act by Act 17 of 1955 as the offence, for which the prosecution was launched, is alleged to have been committed prior to that Act. Excluding the operation of the said amending Act, the combined effect of the aforesaid provisions in the context of the present case may be stated thus:

From 1st April, 1944, the Government of India took over the management of the M. and S. M. Railway, which is now merged in the Southern Railway and a railway servant from that date is a servant of the Union of India. The 1st accused, who is the booking clerk of the Bczvvada Town Booking Office and the second accused, who is the clerk in charge of the Bezwada Town Booking Office, being employees of the M. and S. M. Railway, are now Government servants. Their duties, it is not disputed, consist of selling tickets, realising the proceeds and accounting for them to the Government. It is conceded that they would be public servants within the meaning of Section 21(9) of the Indian Penal Code, if that section applied to them.

But Section 137 of the Indian Railways Act positively enacts that every railway servant shall be deemed to be a public servant for the purpose of Chapter IX of the Indian Penal Code and negatively says that a railway servant shall not be deemed to be a public servant for any of the purposes of that code except those mentioned in Sub-section (1). By reason of that provision, it is absolutely clear that a railway servant would not be a public servant for the purpose of the Indian Penal Code except in regard to offences mentioned in Chapter IX of that Code. Be it noted that the said section does not say that he is not a public servant for the purpose of acts constituting offences under any Act other than the Indian Penal Code.

In the year 1947, i.e. after the railways had become a Government concern. Act 2 of 1947 was enacted with the express object of making more effective provision for the prevention of bribery and corruption. Under Section 2 of that Act, for the purpose of that Act, 'public servant' moans a public servant as defined in Section 21 of the Indian Penal Code. If a railway servant satisfies the conditions laid down in Section 21 of the Indian Penal Code, under that definition he would be a public servant for the purposes of that Act.

Section 137 of the Indian Railways Act does not come in the way as, under that section, a railway servant is not a public servant for the purpose of the Indian Penal Code except in regard to the offences specified therein. If so, if the accused satisfied the conditions laid down in Section 21 of the Indian Penal Code, they would be public servants for the purpose of Act 2 of 1947. The result would be that the accused would be public servants under Act 2 of 1947 and would not be deemed to be public servants for the purpose of Section 409 of the Indian Penal Code. So Far, there was agreement between the learned Counsel for the accused and the learned Public Prosecutor.

Thereafter, the conflicting views on the consequences following the aforesaid legal position in the context of the present case were expressed. The learned Public Prosecutor would have it that the content of an offence under Section 5 (1) (c) of the Act and that of an offence under Section 405, Indian Penal Code, are different and that, in fact, they are two distinct offences. But a comparative study of the ingredients of Section 405, Indian Penal Code, read with Sections 408 and 409, Indian Penal Code, and Section 5 (1) (c) of Act 2 of 1947 shows that they arc practically the same.

8. Act 2 of 1947 was enacted to make more effective provision for the prevention of bribery and corruption in the case of public servants. It introduced some presumptions against accused under certain circumstances, which were not permissible under the previous law. It provided a safe-guard in favour of the accused in so far as it enacted that a Police Officer not below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Sub-section 2 of Section 5. It enabled the accused personally to give evidence in his defence in disproof of the charges made against him or any person charged together with him at the same trial.

The Criminal Law Amendment Act provided for the appointment of Special Judges and, among the offences triable by Special Judges, an offence under Section 5 (1) was included. Under Section 5 (2) the maximum punishment fixed is imprisonment for a term which may extend to 7 years or with fine or with both. Apart from the procedural and evidential rules, under Section 5 (1) (c) of the Act, a person is liable under that section 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.

Under Section 405, Indian Penal Code, whoever entrusted with property or with dominion over property misappropriates it, commits criminal breach of trust. Section 406 prescribes for the offence of criminal breach of trust punishment of imprisonment of either description for a term, which may extend to three years or fine or both. Section 408 provides for an aggravated form of the offence committed by particular persons mentioned therein and fixes punishment of imprisonment of either description for a period of 7 years with or without fine. Section 409 deals with a public servant and other categories of persons mentioned therein and imposes heavier punishment of transportation for life or imprisonment of either description for a term which may extend to ten years and also fine.

While Section 405 only deals with a person dishonestly misappropriating property entrusted to him, Section 5 (1) (c) of the Act also provides for a person fraudulently misappropriating the same. Section 24 of the Indian Penal. Code defines 'dishonestly' as 'whoever docs anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.' Whereas it defines 'fraudulently' as 'a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise'. In Sukha-moymaitra v. Emperor, ILR 16 Pat 688 : AIR 1938 Pat 165 (A), the distinction between the meaning of the terms 'fraudulently' and 'dishonestly' is stated thus:

The difference between an act done dishonestly and an act done fraudulently is that if there is tile intention by the deceit practised to cause wrongful loss that is dishonestly, but even in the absence of such an intention if the deceitful act wilfully exposes anyone to risk of loss, there is fraud.

There is also another difference in the phraseology used in both the sections. The words 'wilfully suffers any other person' in Section 405, Indian Penal Code, are replaced by the words 'allows any other person' in Section 5 (1) (c) of the Act. This change throws a lighter burden on the prosecution in the case of an offence under Section 5 (1) (c) than in the case of an offence under Section 405, Indian Penal Code. Notwithstanding these differences, it is really difficult to find a case coming under Section 409, Indian Penal Code, but not falling under Section 5 (1) (c) of the Act though the procedural and evidential rules differ in the case of both die offences. Even in regard to punishment, except in cases where the offence falls under Section 409, Indian Penal Code, the punishment prescribed under Section 5 (1) is higher than that prescribed under Section 406 or 407, Indian Penal Code and equal to that prescribed under Section 408, Indian Penal Code.

9. A Full Bench of the Allahabad High Court had to consider the question in Om Prakash v. The State (S) : AIR1955All275 (B), namely, whether the State could prosecute a public servant for committing criminal breach of trust under Section 409, Indian Penal Code, ignoring Section 5 (1) (c) of the Act. The Full Bench held that the Prevention of Corruption Act was intended to be only a supplementary measure and that it did not repeal Section 409, Indian Penal Code, by implication. While dealing with that question the learned Judges compared the scope of Section 405, of the Indian Penal Code and Section 5 (1) (c) of the Act. Chaturvedi, J., observed at page 277:

It would thus appear that the act of a public servant in dishonestly misappropriating or otherwise converting for his own use any property entrusted to him or under his control as a public servant or in allowing any other person so to do is an offence both under Section 5 (1) (c) of Act 2 of 1947 and also tinder Section 409, Indian Penal Code.

Mulla, J., says at page 280:

From a perusal of these sections, we find that the definition of criminal breach of trust in Section 405, Indian Penal Code, is a little wider than the definition of criminal misconduct in Section 5 (1) (c), Prevention of Corruption Act, but this is due to the fact that when defining it in the Indian Penal Code, the authors of the Code had to frame a definition which would apply to all persons to whom an entrustment could be made in the normal transaction of life and they had the public servants alone in their minds. Still there are two minor changes which theoretically make the scope of Section 5 (1) (c), Prevention of Corruption Act, a little wider than criminal breach of trust as defined in Section 405, Indian Penal Code. The word 'fraudulently' has been added to 'dishonestly' and ''wilfully suffers any other person' has been changed to 'allows any other person.'

The first addition in our opinion hardly makes any difference but the second change is not absolutely negligible. It lightens the burden of proof for the prosecution in such a case. Still in spite of these changes, an offence under Section 5 (1) (c), Prevention of Corruption Act, is almost identical with an offence under Section 409, Indian Penal Code, when it is committed by a public servant. They are two circles, which not only enter into each other, but almost entirely cover each other. The masks may be slightly different but the face behind the mask is the same. It is almost impossible to imagine an offence committed by a public servant which would be punishable only under one of these sections and not under the other. We, therefore, find that for all practical purposes, they are one and the same offence.

We respectfully accept and adopt the aforesaid observations as laying down the comparative scope of the aforesaid two provisions.

10. A Full Bench of the Bombay High Court in The State v. Sahebarao Govindarao : AIR1954Bom549 (C), dealt with the question in similar context and expressed their view at page 550 to the following effect:

It is true that an offence which falls under Section 409, Indian Penal Code, would also fall under the offence enumerated in Section 5(1)(c).

It is, therefore, clear that the offence with which the accused were charged, falls both under the definition of criminal breach of trust under the Indian Penal Code and under the offence defined in Section 5 (1) (c) of the Act. But, as aforesaid, Section 409, Indian Penal Code, is not attracted to the instant case as, by reason of Section 137 of the Indian Railways Act, the accused are not public servants for the purpose of Section 409, Indian Penal Code. If the accused are sought to be proceeded against as public servants, the only provision whereunder it could be done is Section 5 (1) (c) of the Act.

11. It is then contented that, under Sub-section (4) of Section 5, substituted by Act 59 of 1952 an option is given to the prosecution to prosecute the accused either under Section 5 (1) (c) or under Section 408, Indian Penal Code. In view of this amended provision, the conflict of decisions, one line of cases holding that Section 409 was abrogated by Section 5 (1) of the Act and another line ruling that they are alternative need not detain us as the conflict was set at rest by the Amending Act. See : AIR1955All275 (B) and : AIR1954Bom549 (C).

12. Even so, the question now raised before us could not arise in these cases, for there the question was whether a public servant could be prosecuted for breach of trust under Section 409, Indian Penal Code, ignoring Section 5 (1) (c) of the Act. But the point, which now arises, is whether the said amendment applies to a case where public servant committed breach of trust qua public servant and is sought to be prosecuted for an offence under Section 408, Indian Penal Code, in regard whereof the character of the accused as a public servant is set a necessary ingredient. Section 5 (4) reads:

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 here- in shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.

13. Act 2 of 1947, as aforesaid, was enacted for putting down corruption among public servants. Section 5 (1) narrates the acts constituting an offence under the Act. Section 5 (2) prescribed the punishment for an offence committed by a public servant. Act 59 of 1952 introduced the aforesaid provision as a saving clause. Sub-section (4) should necessarily be confined to the offence committed by a public servant qua public servant. The wording of Sub-section (4) is also clear and under that sub-section, a public servant can be proceeded against either under Section 5 (1) or under any other proceedings that can be launched against him apart from the Act.

If a public servant is liable to be prosecuted both under Section 409, Indian Penal Code and Section 5 (1) (c) of the Act, Sub-section (4) empowers the State to elect to proceed against him either under Section 5 (1) (c) of the Act or under Section 409, Indian Penal Code. But the necessary condition for the application of Sub-section (4) of Section 5 is that the liability to be proceeded against for any offence shall be on. him as a public servant and not in his personal capacity. In this view, the decisions cited by the learned Public Prosecutor are beside the point for, in all the cases cited, the conflict was between Section 409, Indian Penal Code arid Section 5 (1) (c) of the Act and, under both the sections, the public servant was liable to be prosecuted.

But, in the case of a clerk, under the Railway Act he cannot be prosecuted as a public servant under Section 409 as he is not one for the purposes of that section. Indeed, in this case, the accused are charge-sheeted for that very reason only under Section 408, Indian Penal Code. Therefore, no question of choosing between Section 409, Indian Penal Code and S. a (1) (c) of the Act arises. In this view Sub-section (4) of Section 5 does not confer any option on the prosecution to proceed against a public servant under Section 5 (1) (c) or under Section 408, Indian Penal Code.

14. It is then said that Section 26 of the General Clauses Act confers such an option on the State. Section 26 of the General Clauses Act reads ;

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.

15. This section, therefore, premises that the act or omission constituting an offence must fall under two or more enactments, i.e., if acts A, B and C constitute an offence under the Act and the same acts A, B and C constitute an offence under Section 408, Indian Penal Code, the offender can be prosecuted and punished under either of the Acts, but not under both. Can it he said, in the present case, that the acts alleged to have been committed by the accused, viz., selling tickets, receiving money and misappropriating the same without more constitute an offence under the Act as well as under Section 408, Indian Penal Code?

The said acts may constitute an offence under Section 408 but will not, unless the person committing the acts is also a public servant, constitute an offence under Section 5 (1) (c) of the Act. To put it differently, the said three acts excluding the character of the offender - another ingredient for the offence will constitute an offence under Section 408, Indian Penal Code and will not be one under the Act unless that character also is present. In this view, Section 26 of the General Clauses Act will not. in terms, apply as the same acts or omissions simpliciter do not constitute an offence under both the acts.

16. Reliance is placed by the learned Public Prosecutor on a decision of the Calcutta High Court in Amarendra Nath Roy v. The State : AIR1955Cal236 (33), wherein the learned Judges relied upon the provisions of Section 26 of the General Clauses Act holding that the prosecution can proceed either under Section 409, Indian Penal Code, or under Section 5 (2) of the Act, Guba Ray, J., after extracting Section 26 of the General Clauses Act, stated thus at page 241:

The choice lies with the prosecutor as to whether the offender should be prosecuted and punished under one or other of the two enactments under both of which the act or omission complained of might fall. This choice of the prosecutor is always there and if the authorities in any particular case decide on a prosecution under the Prevention of Corruption Act then and then only the question of sanction would arise and not otherwise.

These observations arc no doubt pertinent in the context of the question to be decided by the learned Judges. There, the choice before the prosecution was between Section 5 (2) of the Act and Section 409, Indian Penal Code. Under both the sections, the ingredients of the offence are the same. The character of the person, who committed the offence, is a necessary ingredient of the offence under both the sections. Unlike under Section 408, Indian Penal Code, under Section 409 the Government servant is prosecuted only qua public servant. Therefore, the conditions laid down in Section 26 of the General Clauses Act were complied with. That decision is, therefore, not of any relevance to the present case. We, therefore, hold that Section 26 of the General Clauses Act does not in terms apply to the present situation.

17. Whether the section applies or not, the accused are protected by the well-recognised principle applied and followed in a series of decisions, namely, that : when acts constituting an offence are committed by a person which require sanction for prosecution by some authority as a condition precedent, it is not open to the State to ignore the condition and prosecute him for the same acts for an offence which does not require the previous sanction of the said authority. This would be a clear evasion of the statutory requirements enacted in public interests. Under Section 6 of the Act, no Court shall take cognizance of an offence punishable under Section 5 (2) of the Act alleged to have been committed by a public servant except with the previous sanction of the Central Government or some higher authority of the Central Government. In the case of the present accused, the Court shall not take cognizance of the offence except with the previous sanction of the authority competent to remove them from office.

It is admitted that, in the present case if the prosecution was launched under Section 5 of the Act, the previous sanction of the General Manager was required. If the accused are prosecuted for the same acts constituting an offence under Section 5 (1) (c) of the Act, under Section 408, Indian Penal Code, the previous sanction of the said authority is not necessary. Can the prosecution by deliberate choice, circumvent the provision providing a safeguard against frivolous prosecution and unnecessary harassment of public servants by ignoring that salutary provision and resorting to proceedings under the Indian Penal Code?

18. The earliest decision, which throws light on this subject, is that of Mukherji, J., in Emperor v. Ram Nath ILR 47 All 268 : AIR 1925 All 230 (E). There, the applicant was accused on the facts of having abetted the personation of a voter at a municipal election. The offence committed by the applicant constituted an offence under Section 171-F of the Indian Penal Code, which could not be tried without the sanction of the local Government. Without getting the sanction of the local Government, the applicant was prosecuted under Section 465 of the Indian Penal Code. Mukherji, J., in holding that the prosecution was bad, observed at page 271 (of ILR All) : (at p. 232 of AIR).

It appears to me that where the offence in question has been specifically described and designated by the Legislature, it is not open to any Court to say that, although the offence may be specifically one under Section 171-F of the Indian Penal Code, it falls equally under Section 465 of the same Code and that, therefore, it is open to the Court to try the offender under either of the two sections. Where there are two provisions, one specific and the other general, the specific provision ought to be applied in preference to the general one. If this view be correct, the offence committed must be treated as one under Section 171-F of the Indian Penal Code in preference to Section 465.

19. The learned Judge proceeded to state

When the law clearly says that it is a condition precedent to the prosecution that a sanction shall be obtained from the local Government, I do not think it is open to any subordinate authority to override the provision of the law by saying that the offence falls under another section of Indian Penal Code and as no sanction is necessary for the prosecution under that section, the offender may be prosecuted without any sanction.

20. Curgenven, J., in Perianna Muthirian v. Vengu Aiyar 56 Mad LJ 208 : AIR 1929 Mad 21 (F), followed the observations of Mukherji, J., in a case where the facts stated in a complaint disclosed an offence under Section 193, Indian Penal Code, committed in relation to a proceeding in Court. The accused was prosecuted for the general offence of forgery. If the offence was fabricating false evidence or use in. Court, the Criminal Court cannot take cognizance of the offence except on a complaint in writing of such Court or some other Court to which the said Court is subordinate. Ignoring that provision, the complaint was filed for prosecuting the offender for forgery. After stating that the allegations made by the prosecution clearly made out a case of fabricating false evidence, the learned Judge observed at page 213 (of Mad LJ) : (at p. 24 of AIR),

But if the proposition is broadly this, that where an offence containing, say, ingredients (a), (b) and (c) can only be inquired into upon complaint of the Court concerned by reason of the presence of ingredient (c), it is yet open to a criminal Court, upon the same allegations to entertain a complaint of an offence containing ingredients (a) and (b) only although ingredient (c) is also clearly present, I must respectfully express my dissent. It is for the complainant to lay before the Court the matters of fact upon which he proposes to base his case and it is for the Court to decide whether with reference to the provisions of the Penal Law, it is competent to entertain that case upon the facts stated. In the present instance, the facts stated disclosed an offence under Section 193, Indian Penal Code, committed in relation to a proceeding in Court. Section 195 lays down that no Court shall take cognizance of such an offence otherwise than in the manner prescribed and it makes no difference in my view that the complainant, evidently to evade that provision, elected to name the offence of forgery in his petition.

These observations are a clear recognition of the doctrine that the prosecution should not be allowed to evade the strict provisions of Section 195, Criminal Procedure Code, by naming the offence as one coming under a different section.

21. A Division Bench of the Madras High Court considered an analogous question in In re., Ravanappa Reddi, ILR 55 Mad 343 : AIR 1932 Mad 253 (G). There, on a complaint by a private person alleging the commission of an offence under Section 193, Indian Penal Code and of other offences in respect of which a complaint under Section 476, Criminal Procedure Code, is not necessary, the Court took cognisance of every offence alleged in the complaint but actually convicted the accused under Sections 467 and 109, Indian Penal Code. The Division Bench held that the Court proceeded upon no legal complaint at all. Curgenven, J., followed the earlier decision in 56 Mad LJ 208 : AIR 1929 Mad 21 (F), and held that it was not open to a Court to permit the provisions of Section 195, Criminal Procedure Code, to be evaded in that manner.

The same view was adumbrated by another Division Bench of the Madras High Court consisting of Madhavan Nair and Burn, JJ., in In re. Appadurai Nainar, ILR 59 Mad 165 : AIR 1938 Mad 89 (II). It' dealt with a case where, on the facts alleged, the offence of forgery was committed in respect of a document produced or given in evidence in a Court. Prosecution was launched without a written complaint in writing of the said Court under Section 467, Indian Penal Code. Madhavan Nair, J., who delivered the judgment on behalf of the Bench, accepted the principle laid down by Curgenven, J., that the parties should not be allowed to evade the provisions of Section 195(1)(b), Criminal Procedure Code, by filing a complaint under another provision of the Indian Penal Code, if clearly an offence under Section 193, Indian Penal Code or any other section mentioned in Section 195(1)(b), Criminal Procedure Code, has been committed.

22. Happell, J., in a similar case in Antaivedi Sarma, In re., 1946-1 Mad LJ 466 : AIR 1946 Mad 489 (I), followed the same principle and held that the Magistrate was wrong in taking cognisance of a complaint disclosing the fact constituting an offence under one of the sections mentioned in Section 195(1)(b), Criminal Procedure Code,

23. Govinda Menon, J., in Chinnayya Goundan, In re., 1948-1 Mad LJ 448 : AIR 1948 Mad 474 (J), considered the question again at some length and stated the principle deduced by him in. the following terms at p. 450 (of Mad LJ) : (at p. 476 of AIR):

The principle deducible from these cases is that when a complaint is made to a Court, the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts disclose. Considering the facts as a whole, if they disclose an offence for which a special complaint is necessary under the provisions of Section 195, Criminal Procedure Code, a Court cannot take cognisance of the case at all unless that special complaint has been filed.

We respectfully agree with the aforesaid observations of the learned Judge. But the learned Public Prosecutor contends that the said principle no longer holds the field in view of the judgment of the Supreme Court in Basir-ul-Huq v. State of West Bengal : 1953CriLJ1232 (K). As strong reliance is placed upon this judgment, it is necessary to consider the facts and scope of the decision with some care. One Mokshadamoyee Dassi, mother of Dhirendra Nadu Bara, died on 3rd September 1949. One Nurul Huda had lodged information at lite police station to the effect that Dhirendra Nath had beaten and throttled his mother to death.

When the corpse was on the funeral pyre, the appellant brought a Sub-Inspector to the pyre and at his instance, the fire was extinguished and the dead body was taken out of the pyre. It was discovered on post-mortem examination that the woman died a natural death. Thereupon, Dhirendra Nath filed a complaint in the Court of the Sub-Divisional Officer alleging that Nurul Huda was guilty of trespass on a burial place and also for defamation. The appellants were convicted under both the charges. On appeal, the Sessions Judge held that, on the facts stated in the complaint, the only offence that could be said to have been committed by the appellants was under Section 182 or Section 211, Indian Penal Code and that the Court was not competent to take cognisance of those offences except on a complaint by a proper authority under the provisions of Section 195, Criminal Procedure Code. The Full Bench of the Calcutta High Court, held that Section 195, Criminal Procedure Code, had no application and the complaint was maintainable. The Supreme Court agreed with the view of the High Court, In dealing with the question, Mahajan, J., as he then was, made the following observations at p. 778 (of Mad LJ) : (at p. 295 of AIR):

In our judgment, the contention raised by the learned Counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under Section 297, Indian Penal Code, could in no circumstance as pointed out by the High Court be described as falling within the purview of Section 195, Criminal Procedure Code, The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concerned the conduct of the appellant during the post report period. In these circumstances no serious contention could be raised that the provisions of Section 195 would stand defeated by tile Magistrate having taken cognisance of the offence under that section.

As regards the charge under Section 500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual that other is not debarred by the provisions of Section 195 from seeking redress for the offence committed against him.... Under Section 198, Criminal Procedure Code, a complaint in respect of an offence under Section 499, Indian Penal Code, can only be initiated at the instance of the person defamed, in like manner as cognisance for an offence under Section 182 cannot be taken except at the complaint of the public servant concerned.

The learned Judge held that the ingredients of both the offences were different, that the offences were committed against different persons and that the procedure prescribed was different. At the same time, the learned Judge made it clear that the view expressed by him was not intended or has the effect of overruling the well-established principle accepted and followed in the aforesaid case. At p. 780 (of Mad LJ) : (at p. 296 of AIR), the learned Judge observed:

Though in our judgment Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the Court or of the public servant is required.

In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognisance of by misdescribing it or by putting a wrong label on it.

24. The aforesaid passage not only accepted the previous law on the subject but re-stated it in clear and unambiguous terms. The legal position is therefore well-settled. If the facts disclose primarily an offence to which Section 195 applies, the prosecution cannot evade it by camouflage or device so as to bring it under some other section not requiring a complaint by a Court. If the facts constitute an offence requiring either the sanction of a superior authority or the filing of a complaint by a Court, it cannot be evaded by adopting the device of omitting one of the ingredients of the offence and prosecuting him under some other section.

To illustrate, if a public servant receives amounts on behalf of the State and dishonestly misappropriates them, the offence directly falls under Section 5 (1) (c) of the Act. He can be prosecuted only with the previous sanction of his superior authority. The prosecution cannot, by adopting the device of ignoring the fact that the accused is public servant, evade the requirement of previous consent by filing a complaint under Section 408, Indian Penal Code.

Whether we apply the test laid down by Mukherji, J., namely, that where there are two provisions, one specific and the other general the specific provision ought to be applied in preference to the general one, or, if we follow the test laid down by Curgenven, J., namely, that the prosecution cannot by a device evade the statutory provisions laid down under Section 195(1) the result is the same. The applicability of the appropriate penal sanction depends upon the essential facts disclosed in the complaint. Neither the prosecution nor the Court can ignore one or more essential facts to bring the offence requiring the previous consent or sanction under some other section to sustain the complaint.

In the present case the essential facts are that the two government servants, who are public servants within the meaning of Section 21, Indian Penal Code, received amounts by selling tickets and dishonestly misappropriating them. The said essential facts, if established, clearly make out an offence under Section 5 (1) (c) of the Act and, therefore, the previous sanction of the superior officer was a condition precedent for the filing of the complaint. By ignoring one of the essential facts, the prosecution cannot evade the stringent provisions of Section 5 and file a complaint under Section 408, Indian Penal Code. We, therefore, uphold this objection.

25. The learned Counsel for the accused then contended that the charge-sheet filed against the accused shows that they entered into a criminal conspiracy with the object of committing two offences, one under Section 408, Indian Penal Code and tile other under Section 477-A, Indian Penal Code and that, as the second offence was a non-cognisable offence, the sanction of the Provincial Government or the District Magistrate was necessary before the Magistrate could take cognisance of it. In the view we have expressed on the first point, it is not necessary to decide this point.

26. In the result, we hold on the allegations that the accused committed an offence under Section 5 (1) (c) of the Act and, therefore, the prosecution under Section 408, Indian Penal Code, is illegal. The Criminal Revision is allowed and the proceedings of the lower Court are quashed. This will not preclude the State from proceeding with the prosecution in accordance with law.


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