MADHO PRASAD Vs. STATE

JUDGEMENT

(1.) THIS is a petition to quash the proceedings and the charge in the trial of the applicant in respect of offences under Sections 409, 466 and 477-A, I. P. C. The applicant Madho Prasad was formerly a clerk and accountant in Food Department, Basoda. The prosecution case against him is that on 6. 5. 1952 and 17. 5. 1952 the applicant in his capacity as an accountant and clerk received a total amount of Rs. 250/- from two persons in respect of licences and a deposit, but that he subsequently failed to deposit the amount in the treasury and gave false receipts to the payers showing that amounts paid by them had been credited in the treasury. During the course of the trial, the applicant raised an objection that as he was a public servant, he could be prosecuted for his alleged act of dishonestly misappropriating the amounts paid to him by Bihari Lal and Babu Lai only under Section 5 (2), Prevention of Corruption Act, 1947, and not under Section 409, I. P. C. and further that as the required sanction under Section 6 of the Act for his prosecution under Section 5 (2) had not been obtained, the Magistrate had no jurisdiction to take cognizance of the case. The trial Magistrate rejected the objection and proceeded to frame charges against the applicant, for the offences under Sections 409, 466, 477-A, I. P. C. . The applicant then preferred a revision petition to the Sessions Judge of Guna, which was rejected. He has now come up in revision to this Court.

(2.) MR. Dey learned Counsel for the applicant contended that after the coming into force in Madhya Bharat of the Prevention of Corruption Act, 1947, and so long as it remained in force, Section 409, Penal Code, in so far as it related to offences by public servants stood repealed and that if a public servant was alleged to have committed an offence of criminal breach of trust, he could only be prosecuted for an offence under Section 5 (2), Prevention of Corruption Act, 1947, after obtaining the requisite sanction under Section 6 of the Act. In support of this contention, Mr. Dey relied on a decision of the Punjab High Court in ? State v. Gurucharan Singh AIR 1952 Punj 89 (A ). It was said that no such sanction had been obtained for the applicant's prosecution under Section 5 (2) of the Act. The argument of the learned Deputy Government Advocate in reply is that there is nothing in the Prevention of Corruption Act, 1947, to suggest that the provisions of Section 409, I. P. C. , have been repealed impliedly by Section 5 (1) (c) of the Act and that if a public servant is alleged to have committed an offence which falls either under Section 5 (l) (c) of the Act or under Section 409, Penal Code, he is under Section 26, General Clauses Act, liable to be prosecuted and punished under either of these enactments. It is further argued by the learned Government Advocate that the matter has been now set at rest by the Prevention of Corruption (Second Amendment) Act, 1952, by which Sub-section (4) of Section 5 of the principal Act was amended so as to make it clear that the provisions of Section 5 are in addition to, and not in derogation of, any other law for the time being in force and nothing contained therein exempts any public servant from any proceeding which might, apart from Section 5 be instituted against him. Mr. Shiv Dayal learned Deputy Government further submitted that the view taken by the Punjab High Court that as long as Section 5, Prevention of Corruption Act, 1947, remained in force, the provisions of Section 409, I. P. C. , so far as they concern offences by public servants are pro tanto repealed by Section 5 (1) (c) of the Act is not correct and commended to me for acceptance of the contrary view taken by the Allahabad High Court in ? Bhupnarayan Saxena v. State.

(3.) I am unable to accept the contention of the learned Counsel for the applicant and, in my opinion, this petition must be dismissed. For the purposes of this revision petition it seems to me unnecessary to examine at length and in detail all the provisions of the Prevention of Corruption Act, 1947. It is sufficient to say that the chief object of the Act, which was passed in 1947, is to make more effective provision for the prevention of bribery and corruption by public servants. The Act was amended twice in 1952. By the Amendment Act, II of 1952 (Act No. II of 1952), the duration of the Act was extended to a period of ten years from the commencement of the Act. By the Second Amendment Act No. LIX of 1952 Sections 3 to 6 of the principal Act were amended in some respects. Section 3 of the Act makes offences under Sections 161, 165, 165a, Penal Code cognizable offences. Section 4 permits the Court to draw certain presumption against the accused person in any trial of an offence punishable under Section 161 or Section 165 or Section 165a. Section 5 defines the offence of criminal misconduct by a public servant in the discharge of his duties. Section 5a deals with investigation into cases under the Act. Section 6 provides that the previous sanction of the competent authority mentioned therein shall be necessary for the prosecution of a public servant under Section 161, Section 165, Penal Code, or under Section 5 (2) of the Act. Section 7 of the Act permits an accused person to give evidence on oath on his own behalf and says that no presumption shall be drawn if the accused declines to go into the witness-box. The provision of the Act, which is very material here, is Section 5. It is as follows: