ORDER
Ramabhadran, J.C.
1. These are five connected petitions under Article 228 of the Constitution, read with Section 561A, Cr. P. C., and the prayer made therein is that proceedings pending against the petitioner, tinder Section 409, I. P. C., in the Court of Mr. Chandel, Magistrate first class, Nahan, be quashed. The petitions arise under the following circumstances : The petitioner, Sri Gian Chand Madhok, was formerly employed by the State Government as a District Forest Officer. He is being prosecuted under Section 409, I. P. C., in five different cases. The petitioner’s contention is that he could be prosecuted, if at all, only under the provisions of the Prevention of Corruption Act (Act 2 of 1947) and not under Section 409, I. P. C., as the latter section has, according to him, been repealed by the former Act. This point was agitated before the trial Magistrate, who, however, overruled his contention. Hence these petitions.
2. I have heard learned Counsel for the parties.
3. The following dates have an important bearing in this case. The State of Himachal Pradesh was formed on 15-4-1948. The Himachal Pradesh (Application of Laws) Order was promulgated on 25-12-1948. The Prevention of Corruption Act came into force in the rest of India on 11-3-1947. Its provisions were extended to Himachal Pradesh on 29-6-1949. According to the prosecution, the offences under Section 409, I. P. C., were committed by the petitioner, in the five different cases on the dates shown against them below :
1. Case relating to Kunwar Chand ...May 1948.
2. Case relating to Kharku ... November 1948
to Januaty 1949;
3. Tin capes ... March 19l9.
4. Battery case ... November 1949.
5. Fissa lambarclar's case ... December 3949.
4. Learned Counsel for the petitioner argued that, since the Prevention of Corruption Act had come into force at the time, the alleged offences were committed, the petitioner could be prosecuted only under Section 5 of that Act and not under Section 409, I. P. C. Reliance was placed on a ruling of the Punjab High Court, reported in – State v. Gurcharan Singh , wherein a Division Bench of that High Court held :
As long as Section 5 of Act 2 of 1947 remains in force the provisions of Section 409, Penal Code, so far us they concern offences by public servants are protanto repealed by Section 5(1)(c) of Act 2 of 1947.
Reference was also made to – Puran Mai v. The State , where it was held by a Division Bench of that High Court that :
Sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947, which was substituted by Section 4 of the Prevention of Corruption (Second Amendment) Act, 1952, is a prospective statute, and by enacting it the Legislature has not provided for any retrospective validation of proceedings taken under Section 409, Penal Code, which section the High Court had held in – ” to be pro tanto repealed because of the provisions of Section 5(1) (c) of the Prevention 01 Corruption Act, 1947.
My attention was also invited to – Nagendra Chandra v. Probhat Chandra AIR 1942 Cal 607. (C), where Biswas J. observed that :
The above-mentioned rule that the general cannot derogate from the special is not only not in conflict with, but clearly recognizes the existence of, another rule of construction, equally well settled, that an earlier enactment must give place to a later, if inconsistent therewith. Repeal by implication is never to be favoured; it may be the necessary consequence of inconsistent legislation whenever it occurs, but must not be imputed to the Legislature, unless absolutely necessary. Where, however, the provisions of the later Act are so inconsistent with or repugnant to those of the earlier, that the two cannot stand together, and effect cannot be given to both at the same time, there must be of necessity, an implied repeal of the provisions of the earlier Act.
5. The learned Government Advocate pointed out that, since the Prevention of Corruption Act came into force in Himachal Pradesh only on 29-6-1949, its provisions could not be applied to the trial of the cases relating to Kunwar Chand. Kharku and the tin cases, because in those three cases, the offence was committed before the Act came into force in Himachal Pradesh. As regards the battery case and the case relating to Fissa lambardar, it is, no doubt, true that the alleged offences were committed after the Prevention of Corruption Act came into force in Himachal Pradesh. At the same time, it is urged that the provisions of Section 409, I. P. C., have not been repealed by Section 5, Prevention of Corruption Act. The learned Government Advocate cited, ‘inter alia’ : –
(a) Bhup Narain v. State , where a Division Bench of that High Court observed as follows :
Learned counsel for the applicant has urged that the applicant is a public servant. The offences he is alleged to have committed can all be grouped under the heading ‘criminal misconduct’ and the applicant could, therefore, be convicted under Section 5(2), Prevention of Corruption Act, which is as follows :
Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or both.
Section 6 of the Act provides that no Court shall take cognizance of an offence punishable under Section 161 or Section 165, Penal Code, or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction of persons mentioned in the section. In effect the argument of learned Counsel is that where a public servant is guilty of an offence which can amount to ‘criminal misconduct’ as defined in Section 5(1), the prosecution must be deemed to be under Section 5(2), Prevention of Corruption Act, whether the accused is charged under that section or under appropriate sections of the Penal Code, and the provisions of the Prevention of Corruption Act should, therefore, apply.
The Act was passed in 1947 with the avowed object of making more effective provisions for the prevention of bribery and corruption by a public servant. Sections 3 and 6 of the Act make certain amendments in the procedure, while Sections 4 and 7 make certain amendments to the rules prescribed in the Evidence Act, Sections 3 and 4 apply to cases under Sections 161 and 165, Penal Code, only. The definition of ‘criminal misconduct’ in Section 5 and Sub-sections (b) and Co) can include cases which would not fall under any provision of the Penal Code. Where, therefore, a new offence has been created under this Act there can be no doubt that the accused must be proceeded against in accordance with the provisions of this Act. Where, however, the offence is one which was punishable under the Penal Code and is now made punishable under this Act also, the question arises whether it is open .to the prosecution to proceed against the accused under the general law, that is under the Penal Code, or under the special provisions contained in this Act. Sub-section (2) of Section 5 provides for seven years rigorous imprisonment for criminal misconduct by a public servant, or fine, or both, while some of the sections of the Penal Code, which deal with offences which might come under the definition of ‘criminal misconduct’, provide for heavier or lighter punishment.
The genera] rule ‘generalia specialibus non derogant’ on which reliance has been placed has not been held to be of universal application by Courts in India.
Section 26, General Clauses Act (10 of 1897) is as follows :
Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
The applicant is being prosecuted under various sections of the Penal Code, some of which provide for a sentence of more than seven years, while the others provide for a much lesser sentence. In the charge-sheet no mention has been made of the Prevention of Corruption Act and the trial, so far as we can see, has proceeded in accordance with the provisions of the Criminal P. C. and the charge-sheet mentions only sections of the Penal Code. At the conclusion of the trial, the accused must be convicted, if his guilt is proved, in accordance with the provisions of the Penal Code and it cannot be said that the Court convicting the accused can apply Sub-section (2) of Section 5, Prevention of Corruption Act, and sentence him to seven years’ rigorous imprisonment where the section under which he is charged provides for a lesser sentence. The applicant not having been charged under Sub-section (2) of Section 5, Sections 4 and 7 of the Act cannot be made applicable to him.
(b) In re, Satyanarayanamurthy . There, a single Judge of that High Court, ‘dissenting from – , observed :
The substantial point of law taken before me is the contention based upon the decision of the Punjab High Court in – , wherein it was held that Section 5(1)(c) of Act 2 of 1947 repealed ‘pro tanto’ Section 409, I. P. C. But with greatest respect for the decision, I find no reason whatsoever for holding that Section 5(1)(c), Prevention of Corruption Act, repeals Section 409, I. P. C.
The general principle of law is that the Penal Code would apply if the acts fall within the Penal Code though there may be specific offences and penalties under the Special Act. Accordingly, the High Court of Madras held that a prisoner might be punished under Section 465, I. P. C., for making a false declaration under Section 5 of Act 10 of 1841 (Ship Register), though a specified penalty is provided by Section 23 of that Act. (See rulings of 1865 on Section 5). There has been similar decisions in regard to other special Acts. It is enough to cite a few cases. In regard to offence under Penal Code and Provincial Insolvency Act, see – Queen v. Ramachandrappa 6 Mad 249 (F); for offences under Local Boards Act and Penal Code, see – Molaiappa Goundan v. Emperor AIR 1928 Mad 1235 (G); for conviction under Penal Code though offence falls within purview of Motor Vehicles Act also, see – Jiwa Ram v. Emperor AIR, 1932 All 69 (H); for offences under Salt Act and Penal Code, see – Emperor v. Joti Prasad AIR 1932 All 18 (I); for Railways Act and Penal Code, see – Kuloda Prosad v. Emperor 11 Cal WN 100 (J) distinguished – Chandi Pershad v. Abdur Rahman 22 Cal 131 (K), wherein it was held that a special penal provision as in the Railways Act would not always exclude the operation of the Penal Code.
The most familiar example however is of the identical provisions contained in the Penal Code regarding rash and negligent driving and under the Motor Vehicles Act. Thus where the accused while driving a motor car on the wrong side of the road & at a blind corner between two roads of considerable traffic came into collision with a motor bicycle and caused damage to the side car of the bicycle it was held that the accused was guilty of an offence under Section 279, I. P. C., and the sentence of three months’ rigorous imprisonment served on the accused by the lower Court was upheld. It was argued on behalf of the accused in this case that the more appropriate section would be Section 59, Motor Vehicles Act, but the Judges remarked that the offence committed by the accused was serious and that the mere fact that the Motor Vehicles Act also contained a provision for dealing with offences of this nature would not exclude the operation of the Penal Code. Therefore, it is idle to contend that a special law repeals the provisions of the Penal Code because both of them deal with offences arising under both the Acts.
(c) Madho Prasad v. State AIR 1953 Madh-B 139 (L). There, Dixit J. following – and dissenting from – , held as follows :
Section 5(1)(c), Prevention of Corruption Act, does not create any new offence. Read with Sub-section (2) of Section 5, dt only makes an act already punishable under Section 409, I. P. C., punishable as a criminal misconduct under the Act.
The difference in the punishment, the requirement as to sanction and the special rules of evidence cannot make it a new offence.
Section 5(1) (c), Prevention of Corruption Act, 1947, as it stood prior to the Prevention of Corruption (Second Amendment) Act, 1952, did not pro tanto repeal Section 409, Penal Code, so far as it relates to offences by public servants. Therefore, a public servant could b(r) prosecuted under Section 409, Penal Code, notwithstanding Section 5(2) of that Act. This is now expressly made clear by Section 5(4) of that Act. and , relied on.”
“Where a new offence is created under any enactment, the accused must be dealt with in accordance with the provisions of that enactment; where on the other hand, a statute makes an act already punishable under some former law, punishable and there is nothing in the later enactment to exclude the operation of the former one, then the accused person can be proceeded against under either of the enactments.
(d) Mahomed All v. State , where-a Division Bench of that High Court held that :
In the face of the amendment made in Section 5, Prevention of Corruption Act, 1947, by the substitution of a new Sub-section (4) in place of the old one by the amending Act, 59 of 1952, it cannot be argued that the operation of that Act, in the case of a public servant, excludes the operation of Section 409, Penal Code. The amendment makes it clear that the prosecution can elect to charge a public servant either under Section 409, Penal Code, or under Section 5(1)(c), Prevention of Corruption Act, 1947. Hence, the trial of a public servant before a special Judge under Section 409, Penal Code, is valid. , superseded by amending Act 59 of 1952.
(e) Gopal Das v. State , where a Division Bench of that High Court observed that :
There is no discrimination against an accused who is proceeded against for an offence under Section 409, I. P. C., and not for an offence under Section 5(1) (c), Prevention of Corruption Act. The provisions of Section 409, I. P. C., therefore, do not go against Article 14 of the Constitution and are not void in view of Article 13(1) of the Constitution.
(f) Jayarama Iyer v. State of Hyderabad AIR 1954 Hyd 56 (O), where a Division Bench of that High Court was of the opinion that :
Where an act or omission constitutes an offence both under the Penal Code and under the Prevention of Corruption Act, it is not obligatory to charge the accused with an offence under the latter Act, and unless an accused is so charged under the Prevention of Corruption Act, the procedure laid down under that Act, as well as under Sections 6 and 7, Criminal Law Amendment Act, 1952, cannot apply.
Section 5(1)(c), Prevention of Corruption Act, as it stood prior to the Prevention of Corruption (Second Amendment) Act of 1952, did not ‘pro tanto’ repeal Section 409, Penal Code, so far as it relates to offences by public servants. A public servant can, therefore, be prosecuted under Section 409, Penal Code, notwithstanding Section 5(2) of that Act. AIR 1953 Madh-B 139 (L); – , followed; – , dissented from.
(g) In re, Govindaswami . There, a single Judge of that High Court, following – , held that :
Where a complaint sets forth certain facts disclosing a minor offence and also a graver offence, the prosecution should ordinarily be for the graver offence. Thus, the offence under Section 409, Penal Code, being graver than the offence under Section 5(1)(c), Prevention of Corruption Act, prosecution should be for the graver offence under Section 409, Penal Code, even though the facts disclosed fall within Section 5(1)(c), Prevention of Corruption Act. Dholiah v. Sub-Inspector of Police, Wellington Station AIR 1931 Mad 702 (Q), followed.
6. In consonance with the view of the Madras, Madhya Bharat, Hyderabad, Allahabad and Calcutta High Courts, I would hold that the provisions of Section 409, I. P. C., have not been repealed by Section 5, Prevention of Corruption Act. Therefore, quite irrespective of whether the offences alleged to have been committed by the petitioner, pertain to a period before or after the Prevention of Corruption Act came into force, it must be held that the trial Magistrate has Jurisdiction to proceed with the trials.
7. Learned Counsel for the petitioner argued one further point and that is this. In Kunwar Chand’s case the offence is alleged to have been committed in May 1948, i.e., before the Himachal Pradesh (Application of Laws) Order was promulgated. It is contended that the petitioner could not be charged under Section 409, I. P. C., because the Indian Penal Code was not in force in the former Sirmur State, This, however, appears to be incorrect. It is understood that, even before the merger of Sirmur State in Himachal Pradesh, the Indian Penal Code was in force there. Therefore, this contention is also without force. .
8. The result is : I reject all the five petitions. The trial Magistrate is directed to proceed with the trials. This order will be read in the connected petitions 5, 6, 7 and 8 of 1954.
