BINDRA BAN BRIJLAL Vs. STATE

JUDGEMENT

(1.) IN the course of arguments addressed to me in Criminal Appeal No. 73 of 1956 the vires of Section 5 (1) (c) of the Prevention of Corruption Act was challenged on the ground that it offended against the provisions of Article 14 of the Constitution, since I considered the point to be of considerable Importance I referred the matter to a larger Bench. My brother Falshaw J. , and I have now heard Mr. Chawla, counsel for the appellant, and Mr. Gandhi, counsel for the State. Arguments at some length were addressed to us and a number of decisions of the supreme Court in India were cited before us. After giving the matter my most anxious consideration I have come to the conclusion that the impugned law is intra vires and does not offend against the provisions of Article 14 of the Constitution.

(2.) THE appellant in this case was tried upon a charge punishable under Section 5 (2) of the Prevention of Corruption Act. The nature of the charge was that he being a public servant had dishonestly misappropriated monies which were entrusted to him as public servant. The nature of the offence is defined in Section 5 (1) (c) of the Prevention of Corruption Act and the penalty is provided for by. Section 5 (2), but it is clear that the offence is also punishable under Section 409, indian Penal Code.

(3.) THE substance of the argument addressed to us on behalf of the appellant may be summarised as follows : 1. Section 409 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act are two distinct provisions of law which provide two distinct ways of trying and punishing the same offence. Section 5 no doubt deals with certain new offences, but for the purposes of the present case we are only asked to consider the Provisions of Section 5 (1) (c ). Therefore, a public servant accused of dishonestly or fraudulently misappropriating property entrusted to him as public servant may be tried by an ordinary Court of a Magistrate or Sessions Judge according to the procedure laid down in the Criminal Procedure Code or his case may be entrusted to a Special Judge appointed under the Prevention of corruption Act in which case a somewhat different procedure would be followed. 2. The Government has been given absolute and unfettered discretion to decide which public servant shall be tried upon a charge under Section 409, Indian Penal Code, and which under Section 5 (2) read With section 5 (1) (c) of the Prevention of Corruption Act. Therefore, the prevention of Corruption Act contemplates the division of public servants into two Classes (a) the class which may be tried upon a charge under section 409, Indian Penal Code, and (b) the class who are to be tried under the Prevention of Corruption Act. 3. The Act contains no direction or indication of basis upon which the classification must be made and this division of Government servants accused of similar offences is left to the caprice of an executive authority.