A VEERIAH Vs. STATE

JUDGEMENT

(1.) The Order of the Court was delivered by The Hon'ble The Chief Justice : This Criminal Revision Petition has been referred to a Bench by Bhimasahkaram J. on the ground that it raised a question of considerable importance. Sec. 408 I. P. G. On it being contended that the offence charged was one under Sec. 5 (2) of the Prevention of Corruption Act and the Prosecution could not evade the provisions of that Act and charge the accused under Sec. 408 ; Held : Sec. 137 of the Indian Railways Act positively enacts that every railway servant shall be deemed a public servant for the purpose of Chapter IX of the I. P. C. and negatively says that a railway servant shall not be deemed to be a public servant for any of the purposes of that code except those mentioned in Sub-Sec. (I). A railway servant therefore would not be a public servant for the purpose of the I. P. C, except in regard to offices mentioned in Chapter IX of that Code. In the case of a clerk, under the Railway Act, he cannot be prosecuted as a public servant under Sec. 409 as he is not one for the purposes of that Section. A comparative study of the ingredients of Sec. 405 I. P. C. read with Sections 408 and 409 I. P. G. and Sec. 5 (I) (c) of Act If of 1947 shows that they are practically the same.

(2.) If a public servant is liable to be prosecuted both under Sec. 409 I. P. C. and Sec.5(I)(c) of the Act, subsection (4) of Sec. 5 substituted by Act LIX of 1952 empowers the State to elect to proceed against him either under Sec. 5 (I) (c) of the Act or under Sec. 409 I. P. C. But the necessary condition for the application of Sub-Section 4 of Sec. 5 is that the liability to be proceeded against for any offence shall be against him as a public servant and not in his personal capacity. Sec. 5 (4) does not confer any option on the prosecution to proceed against a public servant under Sec. 5 (I) (c) or under Sec. 408 I. P. C. Sec. 26 of the General Glauses Act premises that the act or omission constituting an offence must fall under two or more enactments. It will not in terms apply to the instant case as the same acts or omissions simpliciter do not constitute an offence both under Sec. 408 I. P. C. and Sec. 5 (I) (c) of Act II of 1947. If the facts disclose primarily an offence to which Sec. 195 Cr. P. C. applies the prosecution cannot evade it by camouflage or device so as to bring it under some other section not requiring a complaint by a court. If the facts constitute an offence requiring either the sanction of a superior authority or the filing of a complaint by a court, that requirement cannot be evaded by adopting the device of omitting one of the ingredients of the offence and prosecuting the offender under some other section. In the instant case it was held that the facts clearly disclosed an offence under Sec. 5 (1) (c) of Act II of 1947, a prosecution for which required the prior sanction of the General Manager, and the prosecution under Sec. 408 I. P. C. was illegal. Petition under sections 435 and 439 and 561-A of the Code of Criminal Procedure, 1898, praying the High Court to revise the order of the Court of the Joint Magistrate Vijayawada dated 17-1- 1955 and made in C. C. No. 90 of 1954. Messrs. G, V. Raghavaiah and Karra Namsimh Rao, for the Petitioners. The Public Prosecutor (Mr. D. Munikannaiah), on behalf of the State. order.

(3.) The Order of the Court was delivered by The Hon'ble The Chief Justice ; This Criminal Revision Petition has been referred to a Bench by Bhimasankaram J. on the ground that it raised a question of considerable importance. The Delhi Special Police Establishment filed a charge-sheet before the Joint Magistrate, Vijayawada, against the two accused Venkatasubbaiah and Veerayya, under Section 120-B I. P. C. read with Sections 408 and 477-A I. P. C. It was alleged that the 1st accused, who was a booking clerk of the Bezwada Town Booking Office, and the 2nd accused, who was a clerk incharge of the Bezwada Town Booking Office, entered into a conspiracy to commit breach of trust of railway funds and to commit other illegal acts. In the charge sheet filed before the Joint Magistrate, it is stated : that in pursuance of the conspiracy accused 1 and 2 committed criminal breach of trust of Rs. 68-9-0 being the proceeds of the sale of the following card tickets on the dates specified against each and thereby they committed an offence punishable under Section 408 I. P. C." and that in pursuance of the conspiracy accused I and 2 falsified the following records and thereby they committed an offence punishable under Section 477-A I. P. C." After the prosecution adduced evidence, the accused raised before the Joint Magistrate two preliminary objections : (1) that the charge sheet filed by the Police in the case disclosed an offence punishable under Sec. 5 (2) of the Prevention of Corruption Act, 1947, and the said Act being a Special Act, it modified to that extent the Indian Penal Code and, therefore, the accused should be tried by a Special Judge in accordance with the Criminal Law Amendment Act of 1952 and (ii) that as one of the objects of the conspiracy was to commit a non-cognizable offence under Section 477-A I. P. C. the Joint Magistrate could not take cognizance of the offence as the previous sanction of the prescribed authority under Section 196-A Crl. Procedure Code was not obtained. The Joint Magistrate disallowed both the objections. The above revision was filed against that order. Learned Counsel for the accused contends that, as the offence alleged to have been committed by the accused clearly falls under Section 5 (1) of the Prevention of Corruption Act (Act II of 1947) (hereinafter reforred to as the Act) the prosecution cannot evade the provisions of that Act ami charge the accused under Section 408 I. P. C. The learned Public Prosecutor argues that an offence under Section 5 (1) (c) of the Act is different in content and scope from that under Section 408 I. P. C. and that, in any view, by reason of the Criminal Law Amendment Act, the prosecution had the option to proceed at their discretion either under the Act or under the Indian Penal Code.