STATE OF MADHYA PRADESH Vs. VEERESHWAR RAO AGNIHOTRI

JUDGEMENT

(1.) The State of Madhya Bharat, which after 1st November 1956, had become merged in the present State of Madhya Pradesh, had obtained special leave from this Court on 11th April 1954, to appeal against the judgment and order of acquittal passed in favour of the respondent herein, by the High Court of Judicature of Madhya Bharat on 11th September 1953, in two consolidated Criminal Appeals Nos. 42 and 48 of 1953, by the identical appellant before that Court. The question for decision in these appeals is how far the High Court was justified in ordering the acquittal.

(2.) The respondent herein was a Tax-Collector in the Muncipal Committee of Lashkar, Gwalior, and was prosecuted in the Court of the City Magistrate and Additional District Magistrate, Lashkar firstly by means of a challan dated 23rd October 1951, for offences under Ss. 468, 477-A and 409 of the Indian Penal Code and S. 5 (2) of the Prevention of Corruption Act II of 1947, in that he misappropriated a sum of more than Rs. 7, 000, entrusted to him in the capacity of Tax-Collector, and during the course of the said transaction committed various offences. On 4th July 1952, a second complaint was filed against him in the same Court under the identical sections for having misappropriated in 1950 a sum of Rs. 3,500, in all under similar circumstances. While these two complaints were pending in the trial Court, on 28th July, 1952 the Criminal Law Amendment Act (Act No.46 of l952) came into force and by S.6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub-s. (2) of S. 5 of the Prevention of Corruption Act II of 1947. Section 7 of the same statute laid down that notwithstanding anything contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under S. 5 (2) of the Prevention of corruption Act could be tried only by a Special Judge, appointed under S. 6 of the Criminal Law Amendment Act. Sub-cl. (b) of S. 7 laid down that when trying a case, triable exclusively by a Special Judge under this statute, he may also try any other offence with which the accused may under the Code of Criminal Procedure, be charged at the same trial. The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under S.7 which immediately before the commencement of the Act were pending before any Magistrate, shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases. In accordance with the above mentioned provisions of the statute, the cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose before whom they were numbered as Case No.3 of 1953 and No.6 of 1953. After the prosecution evidence was over, on 10th March 1953, the Special Judge framed charges under all the sections complained against. By separate judgments dated 5th June 1953 the Special Judge found the respondent guilty of an offence under S. 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years. He, however, passed an order of acquittal under Ss. 468 and 477-A of the Indian Penal Code. As regards the charge under S. 5 (2) of Act II of 1947 the learned Special Judge was of the view that since the provisions of sub-s. (4) of S. 5 of the Prevention of Corruption Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub-s.(2) of S. 5 of the Prevention of Corruption Act without an order of a 1st Class, Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the Court to try the case, the result being that the accused could not be tried for that offence. Such being the case, no formal order of acquittal was passed by the trial Court.

(3.) Aggrieved by the convictions under S. 409 of the Indian Penal Code, the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that Court, and by a common judgment that Court applying the doctrine of autrefois acquit held that when once on the same facts the trial Judge found that the respondent could not be found guilty of an offence under S. 5 (2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under S. 409 of the Indian Penal Code. The respondent was, therefore, acquitted. As mentioned already, the State has been granted special leave to appeal against the orders of acquittal.