GANGA NARAIN Vs. STATE

JUDGEMENT

(1.) Ganga Narain has been committed to the Court of Sessions at Farrukhabad under Section 409, I. P. C. The charge against him is that he as a public servant, namely, as an Extra Agricultural Amin in Tehsil Kanauj, committed criminal breach of trust of a certain sum of money between 15-2-1950, and 31-3-1950. Ganga Narain moved an application before the learned Sessions Judge to the effect that the act complained of amounted to "criminal misconduct" as defined in Section 5, Prevention of Corruption Act, No. II of 1947, consequently the procedure prescribed by Section 7, Criminal Law Amendment Act, No. XLVI of 1952, has to be followed and the case was exclusively triable by the Special Judge, and it was not triable by the Sessions Judge. That contention did not find favour with the learned Sessions Judge and he rejected the application holding that the order of commitment was not bad in law. From that order Ganga Narain has come up in revision to this Court and it has been contended by him that the case was triable exclusively by the Special Judge appointed under the Criminal Law Amendment Act of 1952.

(2.) Learned counsel for the applicant has urged that the applicant is a public servant; that the offence he is alleged to have committed can be grouped under the heading "criminal misconduct" and the applicant can, therefore, be convicted under Section 5 (2), Prevention of Corruption Act; that Section 6 of that Act provides that no Court shall take cognisance of an offence punishable under Sub-section (2) of Section 5 of the Act without the previous sanction of persons mentioned in the section; that Section 6 of the Criminal Law Amendment Act, No. XLVI of 1952 provides that the State Government may by Notification in the Gazette appoint as many special Judges as may be necessary for a particular area to try offences under Sub-section (2) of Section 5, Prevention of Corruption Act, 1947; that Section 7, Criminal Law Amendment Act, 1952, lays down that notwithstanding anything contained in the Code of Criminal Procedure, 'or in any other law, any offences specified in Sub-section (1) of Section 6 of the Act, shall be triable by Special Judges only under the special procedure laid down in Section 8 of the Act and that consequently the applicant could not have been committed to the Court of Sessions under Section 409, I. P. C., nor could the Sessions Judge take cognisance of the matter as Sessions Judge.

(3.) The matter came up for decision in the case of -- 'Bhup Narain v. State', AIR 1952 All 35 (A). In that case Bhup Narain Saxena, who was an Inspector in the Rural Development Department, was prosecuted and convicted under certain sections of the Penal Code. The trial was by the Court of Sessions and it was by that Court that Bhup Narain Saxena had been convicted. An application was moved from that conviction and sentence in this Court under Section 561A read with Section 435 of the Code for the setting aside of the charge and the entire proceedings in the Sessions Trial inclusive of the conviction and sentences. A learned single Judge of this Court referred the application to a Bench for deciding whether the Sessions Trial, in which the accused was charged under various sections of the Penal Code could proceed in the absence of sanction under Section 6 of the Prevention of Corruption Act, 1947, when the accused could be charged under Section 5 of Act II of 1947. In that case the argument was that the accused was a public servant and the act complained of amounted to "criminal misconduct" as defined in Section 5 (2). Consequently the prosecution must be deemed to be under Section 5 (2) of the Prevention of Corruption Act and whether the accused was charged under that section or under appropriate sections of the Indian Penal Code, the provisions of the Prevention of Corruption Act would apply. It was held that the definition of "criminal misconduct" in Section 5 can include cases which fall under the provisions of the Penal Code; that where a new offence has been created under an Act, there can be no doubt that the accused must be proceeded against in accordance with the provisions of that Act, but where the offence is one which was punishable under the Penal Code, and is now made punishable under the Prevention of Corruption Act also, it is open to the prosecution to proceed against the accused under the general law, that is under the Penal Code, or under the special provisions contained in the Act. The Division Bench accordingly rejected the application of Bhup Narain Saxena under Section 561A and under Section 435, Criminal P. C.