STATE Vs. VARADARAJAN

JUDGEMENT

(1.) This is an appeal against the order of acquittal. The case of the prosecution was summarily as follows :-

(2.) At the outset it is to be noted that the charge proceeds on the basis that the offence punishable under S.161 of the I.P.C. and the offence punishable under S.5(2) read with S.5(1)(d) of the Act are one and the same. This is not the correct position of law. They constitute two different offences. In fact, there are vast differences between the two, though both the sections are meant to curb corruption. In the first place, the offence under S.161 is punishable with imprisonment of either description for a term which may extend to three years, or with fine or with both, whereas an offence under S.5(2) read with S.5(1)(d) of the Act is punishable with imprisonment which may extend to seven years and also with fine; there is also a provision for minimum punishment of imprisonment of one year in the latter case. While determining the amount of fine for an offence under S.5(1)(d), the court has to take into consideration the amount or the value of the property which the accused person has obtained by committing the offence, whereas there is no such prescription while determining the fine under S.161. Secondly, as per S.5(1)(a) of the Act, if the offence under S.161 has been habitual that fact has been made a separate offence called "criminal misconduct" which name applies also to the offence under S.5(1)(d) of the Act. The habitual offence under S.161 I.P.C. and a single offence under S.5(1)(d) of the Act are punishable in the same manner which would again show that the offence under S.5(1)(d) of the Act is different from one under S.161 I.P.C. The abetment of offence under S.161 is punishable under S.165-A, whereas abetment of offence under S.5(1)(d) is not punishable under the Act. The attempt for an offence under S.161 is punishable in the same manner as the main offence itself, whereas the attempt of an offence under S.5(1)(a) is punishable only with imprisonment which may extend to three years or with fine or with both, whilest the punishment for the offence may be seven years of imprisonment with fine.

(3.) It is also to be noted that under the Act the law maker has also dealt with the offence under S.161 in several other ways, in making the proof easy by creating a presumption against the accused, in modifying certain rules in the Code of Criminal Procedure and also in providing that a statement made by a person in any proceeding against the public servant for an offence under S.161 to the effect that he offered or agreed to offer any gratification shall not subject him to prosecution under S.165-A of the Code. Therefore, S.5(1)(d) of the Act was not enacted in ignorance of S.161, without taking it into account. It was made purposely in order to complement S.161, to meet the circumstances which would not be covered by S.161. It is far from being an unnecessary duplication with S.161.