AZGARALLI NAZARALLI SINGAPOREWALLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE are two appeals, one an acquittal appeal and one a conviction appeal. The appeals arose from a case tried by the learned Presidency Magistrate, 19th Court, Bombay, in which five persons, accused No. 1, a mehta in the employment of a firm called Messrs. M. M. Baxabhoy and Co. , accused No. 2, who is their manager, and accused Nos. 3, 4 and 5, who are the Receivers of the properties of the firm in litigation in regard to it, were charged with offences under Section 161 read with Section 116 and further read either with Section 109 or Section 114, Penal Code for offering to Jibhai Chhotalal Barot, a Sub-Inspector of Police attached to the Anti-Corruption Branch of the C. I. D. , a sum of Rs. 1,25,000 as illegal gratification other than legal remuneration as a motive or reward for his showing favour to the accused and to Messrs. M. M. Baxabhoy and Co. in the exercise of his official functions. The conviction appeal is by accused No. 2. and the acquittal appeal is, of course, by the State.

(2.) THE first point which arises in these appeals is as to whether the learned Magistrate has jurisdiction to try the case, after the coining into force on 28th July 1952, during the pendency of the trial, of Act No. 46 of 1952 called the Criminal Law Amendment Act, 1952. It is not in dispute that under the provisions of Section 6 of that Act the State-Government has constituted for Greater Bombay the Court of a Special Judge for the purpose of trying offences mentioned in clauses (a) and (b) of Sub-section (1) of that section. The Special Judge was appointed on 23rd September 1952, and the judgment in this case was delivered six days later 29-9-1952.

(3.) NOW, Section 7 of the Act gave to the Court so constituted exclusive jurisdiction for trial of the-offences mentioned in Sub-section' (1) of Section 6. The first point which has been made, however, on behalf of the acquitted accused is that the same Act which constituted the Special Court also added Section 1g5a to the Indian Penal Code, by which, whoever abetted any offence punishable under Section 161 or Section 165 was made liable to be punished with; imprisonment of either description for a term which may extend to three years, or with fine, or with both, whether the offence abetted was committed or not. It is contended consequently that, to the facts alleged against the accused persona Section 116, Penal Code has no application, inasmuch as Section 116 has application only when no express provision is made by the Code for the punishment of the abetment of an offence. Inasmuch as Section 1g5a which was added to the Code by the Criminal Law Amendment Act, 1952; prescribes a punishment for the abetment of the-offence under Section 161, Section 116 has no application. The section, however, came into force only on 28th July, 1952, and it had no retrospective application, for the reason that all Acts are presumed to be prospective, and Section 165a which imposes a higher penalty for abetment of the offences under Ss. 161 and 165 has no application to acts committed before its enactment, it being perfectly easy to read the section prospectively without doing violence to its language. The accused were, therefore, rightly tried for the offences under Section 161 when read with Section 116 further read with Section 109 or Section 114. It is contended, however, on behalf of the acquitted accused that, even so, clause (b) of Section 6, Sub-8, (1) had no application to the case against them, because Section 165a, Penal Code is specifically mentioned in clause (a) of Sub-section (1) of Section 6, and it must be taken that there was not in existence, after the date of the enactment of Act No. 46 of 1952, on the criminal statute book, any offence falling within the purview of Section 161 read with Section 116, and consequently any offence like the abetment of the offence under Section 161 when read with Section 116. That contention, however, cannot possibly be considered. In case Section 165a, Penal Code was applicable only to offences committed after the date of its enactment, Section 116 which remained upon the statute book was available even if we consider only the cases of abetment of the offence under Section 161, for the punishment of offences which might have been committed before 28-7-1952.