STATE OF MAHARASHTRA Vs. PANDURANG BABURAO

JUDGEMENT

(1.) The accused was charged with having committed an offence under Section 409, Penal Code, in that in January 1951 while being in charge of the villages Harchori and Road Khandkar as a talati he committed criminal breach of trust in respect of Rs. 101-6-0 by dishonestly misappropriating the amount and he failed to credit this amount into the Ratnagiri Sub-Treasury by 5-1-1951. The learned Judicial Magistrate, First Class, Ratnagiri, convicted the accused and sentenced him to one month's simple imprisonment and a fine of Rs. 100, in default simple imprisonment for 15 days. The accused appealed to the Sessions Judge, Ratnagiri, and the learned Sessions Judge acquitted the accused on the preliminary ground that inasmuch as the accused was prosecuted without a sanction, the trial of the accused was bad and the order of conviction cannot stand. The State has come in appeal against the order of acquittal passed by the learned Sessions Judge.

(2.) The view taken by the Sessions Judge following a decision of this Court is that inasmuch us the facts disclosed by the prosecution constituted an offence both under Section 409. Penal Code, and also under Section 5(2), Prevention of Corruption Act (2 of 1947), and inasmuch as under Section 6, Prevention of Corruption Act, a sanction was necessary before the prosecution could be launched, it was not open to the prosecution to evade the provisions with regard to sanction and prosecute the accused under Section 409, Penal Code. Therefore, the very short question that we have to consider in this full bench is whether the passing of Act 2 of I947 which requires a sanction makes it obligatory upon the prosecution to prosecute the accused under Act 2 of 1947 after taking the necessary sanction and the prosecution is prevented from prosecuting the accused under Section 409, Penal Code without a sanction.

(3.) The offence, as already pointed out, was alleged to have been committed on 25-1-1951. Act 2 of 1947 came into force on 11-3-1947 and there was an amendment to this Act by Act 2 of 1952 which came into force on 28-7-1952, and there was a second amendment to this Act 59 of 1952 which came into force on 12-8-1952. This amendment sustituted Section 5(4) in the original Act and the subsection provided: