{"id":254431,"date":"1950-12-05T00:00:00","date_gmt":"1950-12-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-vs-gurcharan-singh-on-5-december-1950"},"modified":"2017-02-11T00:59:23","modified_gmt":"2017-02-10T19:29:23","slug":"the-state-vs-gurcharan-singh-on-5-december-1950","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-vs-gurcharan-singh-on-5-december-1950","title":{"rendered":"The State vs Gurcharan Singh on 5 December, 1950"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
The State vs Gurcharan Singh on 5 December, 1950<\/div>\n
Equivalent citations: AIR 1952 P H 89<\/div>\n
Author: Falshaw<\/div>\n
Bench: Koshla, Falshaw<\/div>\n

JUDGMENT<\/p>\n

Falshaw, J.\n<\/p>\n

1. The circumstances giving
\nrise to-this reference by
\nthe learned Ses. J. at
\nDelhi, Criminal Revision
\n893 of 1949, are as
\nfollows. Gurcharan Singh
\nrespondent was formerly em-\n<\/p>\n

ployed as a Held Inspector
\nin the office of the
\nCustodian of Evacuees’
\nProbity & it is alleged that
\nwhile acting in this
\ncapacity he misappro
\npriated some evacuees’
\nproperty over which he had
\ndominion. The casa was
\nfirst registered as a result
\nof report to the police on 2-\n<\/p>\n

1- 948, & as a result of the
\ninvestigation by the
\npolice Gur-charan Singh
\nwas arrested on 31 4 1948, &
\nreleased on ail on the
\nfollowing day, the 1st
\nof May. The chalan was
\nactually put into the
\nCourt of a Magistrate on 23-\n<\/p>\n

7-1948, under Section 409,
\nPenal Code<\/a>. On 18 8 1948,
\npreliminary objections to
\nthe legality of the
\nCourt’s proceeding with
\nthe trial were raised on
\nbehalf of the accused.\n<\/p>\n

These objections were
\nprimarily based on my
\ndecision in Cri. Revn. No.
\n191 of 1948 decided on 18-7
\n1948, in which I held that
\nas long as the provisions
\nof Section 5<\/a>, Prtiveniion
\nof Corruption Act, ACS II
\n(2) of 1947, remained in
\nforce, Section 409<\/a>, Penal
\nCode<\/a>, so far as it related
\nto offences by public
\nservants, stood repealed.\n<\/p>\n

In effect this decision
\nmeant that if a public
\nservant was alleged to
\nhave com-mitted an offence
\nwhich fell either under
\nSection 409<\/a>, Penal Code<\/a>,
\nor Section 5<\/a> (1) (c)
\nPrevention of Corrup-tion
\nAct, be could only be
\nprosecuted under the
\nlatter section, & in tbat
\ncase the sanction of the
\nappropriate authority
\nmentioned in Section 6<\/a>,
\nPrevention of Corruption.\n<\/p>\n

Act, was necessary before
\nany Court could take
\ncognizance of the case. It
\nis not disputed that for
\nthe case under Section 409<\/a>,
\nPenal Code<\/a>, against
\nGurcharan Singh no sanc-\n<\/p>\n

tion of any authority
\nhad been obtained. The
\nlearned trial Magistrate
\nrightly felt that he was
\nbound by this decision, &
\nhe also rejected another
\nground on which it was
\ncontended on behalf of the
\nCrown that the case could
\ncontinue notwithstanding
\nmy decision. This
\ncontention was that at the
\ntime when the Court took
\ncognizance of the case
\nGuroharan Singh was no
\nlonger a public servant.\n<\/p>\n

It is in fact not in dispute
\nthat he was discharged from
\nGovt. service on 8-5-\n<\/p>\n

19(sic)8. i. e., on a date
\nintervening between the date
\non which his bail
\napplication had been
\nentertained & accepted & the
\nda e on which the actual
\nchalan was presented
\nbefore the Court. The
\nlearned Magistrate,
\nhowever, was of the
\nopinion that he had taken
\ncognizance of the case on
\nthe 1st of May when he
\napplied his mind to the fact
\na of the case in dealing
\nwith the bail application
\nof the accused. He
\ntherefore held
\nthat the case could not The Mate (Cr R. No. 779 of
\nproceed without the 1950), in which inter alia
\nsanction of the the effect of the Pre
\nappropriate authority vention of Corruption Act<\/a>
\nmentioned in Section 6<\/a> of of 1947 on Section 409<\/a>.
\nAct 11 [2] of 1947 and he Penal Code<\/a>, is
\ntherefore discharged the involved.
\naccused on 15-11-1948. A <\/p>\n

2. The first question
\nrevision petition was to be decided is whether
\nfiled on behalf of the it was correctly decided
\nCrown in the Court of by me in Criminal Revn.
\nthe learned Sss. J., who, No. 191 of 1948 that as
\nby his order dated 13-7- long as Section 6<\/a> of Act
\n1949, held that he was II (2) of 1947 remains in
\nbound by my decision force Section 409<\/a> Penal
\nregarding the section Code, pro tanto stands
\nunder which proceedings repealed as regards
\nmust be taken against the offences alleged to have
\naccused, but at been committed by public
\nthe same time, after ser-vauta. This question
\nconsidering the relevant obviously requires consi
\nauthorities, held that deration of the scheme &
\nGurcharan Singh was no purpose of Act II [2] of
\nlonger a public servant 1947, which came into
\nwhen the trial Court took force on 11-3-1947. It is
\ncognizance of the case & headed “An Act<\/a> for the
\nthat therefore no more effective prevention
\nprevious sanction of bribery & corruption” &
\nunder Section 6<\/a>, the opening words of the
\nPrevention of Act<\/a> itself are “whereas it
\nCorruption Act<\/a> was is expedient to make more
\nnecessary. He accordingly effective provision for
\nforwarded the case to this the prevention of bribery
\nCourt with the re- & corruption; it is hereby
\ncommendation that the enacted as follows.”
\norder of the trial Magis Section 1<\/a> deals with the
\ntrate discharging the short title, extent &
\naccused be set aside, & duration of tho Act,
\nthe case remanded to him regarding which it is
\nfor proceeding with it sufficient to say that Sub-
\naccording to law. When the section (3) pro. vides
\ncase came before a learned that Section 5<\/a> shall
\nSingle Judge for admission remain in force for a
\nho considered the point period of three years from
\ninvolved important enough the commencement of the
\nfor refer-ence to a Act, & this has now been
\nDivision Bench. The case extended by a further
\nhas accordingly been heard period of two years.<\/p>\n

\nby us along with four          Section 2<\/a> merely provides\nother revision petitions,      that\nBalwant Rai v. The Grown       for  the  purposes  of the\n(or. b. no. 398 of 1949)       Act   'public servant\"\nMajor T. S. Oill v. The        means a public servant as\nState (Cr R. No. 1073 of       defined in Section 21<\/a>,\n1949<\/a>), Captain Ram Parkash     Penal Code. Section 3<\/a>\nv. The Crown (cr. B. No 6      provides that\nof 1950) & bharah Singh v.     notwithstanding anything\ncontained in the Criminal      of corruption may fairly\nP. C. offences punishable      be drawn. Section 5<\/a>\n<\/pre>\n
under Section 161<\/a> or 165.      proceeds to deal with the
\nPenal Code<\/a>, shall be           offence of criminal
\ndeemed to be cognizable        misconduct in discharge of
\noffences for the pur-poses     official duty. The section
\nof the Criminal P C. with      reads:\n<\/p>\n
the proviso that without          <\/p>\n
 ” (1) A
\nan order from a first          public servant is Bald to
\nclass Magistrate no Police     commit the offence of
\nOfficer below the rank of      criminal misconduct in the
\nDeputy                         discharge of bis duty:\n<\/p>\n
Superintendent shall              <\/p>\n
 (a) if he
\neither investigate such an     habitually accepts or
\noffence or make any arrest     obtains or agrees to
\nwithout a warrant. Section     accept or attempts to
\n4 is more revolutionary,       obtain from any person for
\nsince without mentioning       himself or for any other
\nthe Evidence Act<\/a>               person, any gratification
\nspecifically it modifies       (other than legal
\ncertain provisions of this     remuneration) as a motive
\nAct by implication, since      or reward such as is
\nit provides that whore in      mentioned in Section 161<\/a>,
\nthe trial of an offence        Penal Code<\/a> or    <\/p>\n
under Section 161<\/a> or 165,      (b) if he habitually
\nPenal Code<\/a>, it is proved       accepts or obtains or
\nthat an accused person has     agrees to accept or
\naccepted or obtained, or       attempts to obtain for
\nagreed to accept or            himself or for any other
\nattempted to obtain, for       person, any valuable thing
\nhimself or any other           without consideration or
\nperson, any gratification      for a consideration which
\nother than legal               he knows to be inadequate,
\nremuneration or any            from any person whom be
\nvaluable thing it shall be     knows to have been, or to
\npresumed unless the            be, or to be likely to be
\ncontrary is proved that he     concerned in any
\naccepted or obtained, or       proceeding or business
\nagreed to accept or            transacted or about to be
\nattompted to obtain, that      transacted by him or
\ngratification or that          having any connection with
\nvaluable thing, as the         the official functions of
\ncase may be, as a motive       himself or of any publio
\nor reward such as is           servant to whom he is
\nmentioned in the said          subordinate, or from any
\nSection 161<\/a> or, as the         person whom he knows to be
\ncase may be, without           interested in or related
\nconsideration or for a         to be person so concerned,
\nconsideration which he         or
\nknows to be inadequate.\n<\/p>\n
 (c) if he dishonestly
\nThere is, however, a           or fraudulently
\nproviso that the Court may     misappropriates or
\ndecline to draw such a         otherwise converts for his
\npresumption if the gratifi     own use any property
\ncation or thing aforesaid      entrusted to him or under
\nis in its opinion so           his control as a public
\ntrivial that no inference      servant or allows any
\nother person so to do, or<\/p>\n
 (d) if ho, by corrupt
\nor illegal means or by
\notherwise abusing his
\nposition as public servant
\nobtains for himself or for
\nany other parson any
\nvaluable thing or pecu
\nniary advantage.\n<\/p>\n
2. Any publio servant
\nwho commits criminal
\nmisconduct in tho
\ndischarge of bis duty
\nshall be punishable with
\nimprisonment for a term
\nwhich may extend to seven
\nyears, or with fine, or
\nwith both.\n<\/p>\n
 3. In any trial of an
\noffence punishable under
\nSub-section (2) the fact
\nthat the accused person or
\nany other person on his
\nbehalf is in possession,
\nfor which the accused
\nperson cannot
\nsatisfactorily account, of
\npecuniary resources or
\nproperty disproportionate
\nto his known sources of
\nincome may he proved, & on
\nsuch proof the Court shall
\npresume, unless the
\ncontrary is proved that
\nthe accused person is
\nguilty of criminal
\nmisconduct in the
\ndischarge of his official
\nduty & his conviction
\ntherefor shall not be
\ninvalid by reason only
\nthat it is based solely on
\nsuch presumption.”\n<\/p>\n
 3. The next S. No. 6<\/span><\/p>\n
refers to sanction tor
\nprosecution & reads :\n<\/p>\n
 “No Court shall take cognizance of an offence punish-
\nable under Section 161<\/a> or Section 165<\/a>, Penal Gode or under
\nSub-section (2) of Section 6<\/a> of this Act, alleged to have
\nbeen committed by a public servant except with the
\nprevious sanction :\n<\/p>\n
 (a) in the case of a person who is
\nemployed in connection with the affairs of the Federation
\n& is not removable from bis office save by or with the
\nsanction of the Central Govt. or some higher authority,
\nCentral Govt.;\n<\/p>\n
 (b) in the oase of a person who is employed in connec
\ntion with the afiaira of a Province and is not removable
\nfrom his office save by or with the sanction of the Provin
\ncial Govt. of some higher authority, Provincial Govt.;\n<\/p>\n
 (e) In the case of any other person of the authority
\ncompetent to remove him from his office.” Finally Section
\n7<\/a> provides that any person charged with an offence
\npunishable under Section 161<\/a> or 165, Penal Code<\/a> or under
\nSub-section (2) of Section 5<\/a> of the Act shall be a
\ncompetent witness for the defence & may give evidence on
\noath in disproof of the charges made against him or any
\nperson charged together with him at the same trial, & then
\nfollow certain safeguards regarding its being optional for
\nthe accused to appear as his own witness, & regarding the
\nabsence of any presumption against him if he does not
\nchoose to appear ag a witness, and the nature of the
\nquestions which can be asked from him if he does so.\n<\/p>\n
 [d] The effects of the Act may now be summed up as
\nfollows :\n<\/p>\n
 (I) Public Servants accused of having com
\nmitted offences under Sections 161<\/a> & 165<\/a>, Penal Code<\/a>, may
\nstill be tried on charges under those actual sections, bat
\neven so their trials will be governed by the other changes
\nintroduced by the Act regarding the presumptions to be
\ndrawn against them, the necessity for the sanction of the
\nappropriate authority under Section 6<\/a>, & the privilege of
\nthe accused to give evidence on oath ag a competent
\nwitness if he so desires under Section 7<\/a>.\n<\/p>\n
 (II) Sub-sections (1) & (2) of Section 5<\/a> are more or
\nless based on Sections 161<\/a> & 165<\/a>, Penal Code<\/a>, but create
\nnew offences by somewhat enlarging the scope of those
\nsections. Section 5<\/a> (1) (d) creates a new offence of
\nobtain-ing favours by abuse of official position. Section
\n5<\/a> (1) (c), with which we ave primarily concerned in this
\ncase is for all practical purposes the same as Section
\n409<\/a>, Penal Code<\/a>, so far as it relates to offences by
\npublic servants, & it is difficult if not impossible to
\nconceive of any such offence committed by a public servant
\nwhich would be puniahable under one of these sections &
\nnot under the other.\n<\/p>\n
(III) A radical change ia introduced regarding the
\nnecessity for previous
\naanctbn for prosecution. This aspect of the prosecution of
\npublic servants
\nwas hitherto governed entirely by the provisions of
\nSection 197<\/a>, Criminal P. C., <\/p>\n
  Sub-section (1) of which reads :\n<\/p>\n
 “When any person who is a Judge within
\nthe meaning of Section 19<\/a>, Penal Code<\/a>, or when any
\nMagistrate, or when any public servant who’is aot
\nremovable from his office save by or with the sanction of
\na Provincial Govt or some higher authority is accused of
\nany offence alleged to have been committed by him while
\nacting or purport-ing to act in the discharge of Ms
\nofficial duty, no Court shall take cognizannce of such
\noffence except with the previous sanction.\n<\/p>\n
 (a) in the case of a person employed in
\nconnection with the affairs ot the Federation, of the
\nGovernor General exercising his individual judgment. &<\/p>\n
 (b) in the case of a person employed in connection
\nwith the allaira of a Province, of the Governor of that
\nProvince exercising his individual judgment.”\n<\/p>\n
 Thus two major changes have been introduced by the new
\nAct. The first of these is that while under Section 197<\/a>
\nthe sanction of the Governor-General or the Provincial
\nGovernor, as the case may be, was only necessary for the
\nprosecution of public servants who were not removable from
\ntheir offices save with tho sanction of the Central Govt,
\nor the Provincial Govt. respectively, no such
\nqualification ia contained in Section 6<\/a> in which the words
\nused are “committed by a public servant.” Thus under the
\nCriminal P. C. no sanction was ever required to prosecute
\na public servant removable by a leaser authority then the
\nProvinoial or Central Govt. whereas cow the sanction of
\nthe appropriate authority is necessary for the prosecution
\nof any public servant however subordinate, allowed to have
\ncommitted an offence under Section 161<\/a> or 165, Penal Code<\/a>
\nor under Section 6<\/a> of the Act. The second change is that
\nintrocuced by the omission in Section 6<\/a> of the Act of the
\nwords appearing in Section 197<\/a> “while acting or purporting
\nto act in the discharge of his official duty.” This
\nomission appears to be deliberate. & to have been made in
\nconsequence of decisions of various High Courts & the
\nFederal Court to tbe effect that an officer who had
\naccepted a bribe or embezzled Government property was
\nneither acting nor pun-porting to act in the discharge of
\nhis official duty, & that therefore no sanction for hia
\nprosecution was necessary. The sanction of the appropriate
\nauthority is therefore now necessary for the prosecution
\nof any public servant under the Act.\n<\/p>\n
 (IV) Another major change is the introduction by
\nSection 7 of the Act of the Privilege of an accused person
\nin a case under s. 161<\/a> or 165, Penal Code<\/a>, or Section 5<\/a> of
\ntho Act, to appear as a competent witness and give
\nevidence on oath in disproof of the charges made against
\nhim or any other co-accused. So far as I am aware this is
\nthe first granting of such privilege to a person on trial
\nfor a criminal offence in this country. Thus although
\nneither tho provisions of Section 843<\/a> (4), Criminal P. C.
\nwhich specifically states that no oath shall be
\nadministered to the accused; & the latter part of Section
\n5<\/a> of the Oaths Act of 1873. which provides that nothing
\nherein contained shall render it lawful to administer in a
\ncriminal proceeding an oath or affirmation to the accused
\nperson, are mentioned at all in Section 7<\/a>, these
\nprovisions of law are clearly repealed by Section 7<\/a> for
\ntue purpose of trials under the Act,<\/p>\n
 (V) There is also ono important change regarding the
\nsentence for embezzlement by a public servant. The penal
\nClause Section 5<\/a> (2) fixes a maximum sentence of seven
\nyears imprisonment or a fine or both, for the offences set
\nout in Section 5(1)<\/a> (a) (b) (e) & (d), whereas under
\nSection 409<\/a>, Penal Code<\/a>, the words regarding sentence read
\n:\n<\/p>\n
  “shall be punished with transportation for
\nlife, or with imprisonment of either description for a
\nterm which may extend to ten years, & shall also be liable
\nto fine.”\n<\/p>\n
 Thus not only is tbe maximum term of imprisonment
\nunder Section 5<\/a> (2) for an offence under Section 6<\/a> (1) (c)
\nconsiderably leas than that under Section 409<\/a>, Penal Code<\/a>,
\nbut also under Section 409<\/a>, Penal Code<\/a>, a sentence of
\nimprisonment is mandatory, while under Section 5<\/a> (2) the
\nRent once need only be a fine without any sentence of
\nimprisonment.\n<\/p>\n
 5. The question before us is whether in view of these
\nchanges introduced by Act II (2) of 1947, particularly
\nregarding the necessity for previous sanction of the
\nappropriate authority for prosecution, the right of the
\naccused to give evidence as a witness & the charge of
\nsentence, it is now open to the authorities concerned,
\nwhen a public servant is accused of committing aa offence
\nwhich would be punishable either under a. 409, Penal Cede,
\nor
\nSection 5<\/a> (1)(c) of the Act, to choose which of these two
\nsections the offender should be prosecuted under,
\n& by choosing to proceed under s. 409<\/a>, Penal Code<\/a>, to
\ndispense with the necessity for any previous sanction in
\nthe case of a public servant removable from office by an
\nauthority subordinate to the Provincial or Central Govt.,
\n& also to deny him the privilege of giving evidence on
\noath aa a competent witness on his own behalf. Prima
\nfacie, it would appear to be unlikely that this was the
\nintention of the Legislature when it passed Act II [2] of
\n1947, the avowed object of which was to deal more
\neffectively wtth bribery & corruption of public servants,
\nfor which purpose the prevalent forms of these offences
\nwere collected into a single Act & what was thought to be
\na more effective procedure for trying offences of this
\nbind was introduced. The general impression that Section S
\n(1) (c) was intended to supersede Section 409<\/a>, Penal Code<\/a>,
\nfor offences of this type committed by public servants is
\ngreatly strengthened by the fact that the Act specifically
\nprovidesfor the trial of offences under Sections 161<\/a> &
\n165<\/a>, Penal Code<\/a>, with the procedural changes introduced by
\nthe Act, whereas Section 409<\/a>, Penal Code<\/a>, is nowhere
\nmentioned in the Act. On behalf of the State reliance was
\nchiefly placed, as it was before me in tbe previous case,
\non the provisions of Section 26<\/a>, General Clauses Act<\/a>,
\nwhich reads :\n<\/p>\n
  “Where an act or omission constitutes an
\noffence under two or more enactments, then the offender
\nshall be liable to be prosecuted & punished tinder either
\nor any of those enactments, bat shall not be liable to be
\npunished twice for the dame offence ”\n<\/p>\n
 If this section is taken by itself, then clearly a
\npublic servant who has committed an offence falling either
\nunder Section 409<\/a> or Section 5<\/a> (1) (c) of the Act can be
\ntried on a charge under either of these sections. & the
\nonly limitation is that he cannot be convicted & sentenced
\nfor the same offence under both of them. Clearly, there
\nwould be no difficulty whatever in accepting the position
\nof the State in tbe matter if Act II [2] of 1947 simply
\nmade an offence already punishable under
\nSection 409<\/a>, Penal Code<\/a>, punishable also under Section
\nSection (1) (c) & went no further. There are, however, the
\nthree important changes regarding sanction, the right of
\nthe accused to give evidence on oath and the change in the
\nquantum & nature of tbe sentence to be taken into
\nconsideration and they certainly complicate the
\nquestion.\n<\/p>\n
 6. There is no doubt, as was contended by Mr. Bishan
\nNarain on behalf of the State that as a matter of general
\nprinciple repeal by implication is not favoured. There
\nare, however, obviously exceptions to this general
\nprinciple. Such a case arose when a Full Bench consisting
\nof seven Judges of the Lahore High Court considered the
\ninconsistent provisions of Section 162<\/a>, Criminal P. C. &
\nSection 27<\/a>, Evidence Act<\/a>, both of which were fundamental
\nacts of long stand, ing, regarding tbe admissibility of
\nstatements made by accused persons in Police custody & it
\nwas held by the whole Court, the decision being reported
\nin Hakam Khuda v. Emperor<\/a>, A.I.R, (37) 1940 Lah iss, that
\nSection 162<\/a>, Criminal P. C., the later Act, repealed
\nSection 27<\/a>, Evidence Act<\/a>. This decision was not reversed
\nby ary higher Court. & as a matter of fact Section 163<\/a>,
\nCriminal P C., was subsequently amended so as to leave the
\nprovisions of Section 27<\/a>. Evidence Act<\/a>, intact. In spite
\nof the fast that nearly two & a half years have elapsed
\nsince my earlier decision on the point in dispute, there
\ndees not appear to be any decision of any of tbe High
\nCourts in India, or the Federal Court or the Supreme
\nCourt, in which the same point has been considered, & in
\nmy opinion the most relevant authorities are still the
\npassages from Craies on Statute Law, & Maxwell on the
\nInterpretation of Statutes on which my earlier decision
\nwas mainly based. The first of these passages from Craies,
\np. 314, reads as follows:\n<\/p>\n
  “In R. v. Judge of Essex County Court, (1887)
\n18 Q. B. D. 704 Esher M. R. laid it down aa an ordinary
\nrule of contruction that where the Legislature has passed
\na new statute giving a new remedy, that remedy alone can
\nbe followed. But the phrase ‘new’ as applied to a statute
\nis either needless or ambiguous. The old distinction
\nbetween ‘velara’ & ‘nova slatula’ is obso etc; & the word
\n‘new’ is insensible unless applied to statutes creating
\nrights or readies unknown to the common law or to previous
\nenactments. And for modern use the rule could perhaps be
\nmore accurately laid down thus. In the case of an Act
\nwhich crtates a new jurisdiction, a new procedure, new
\nforms or new remedies tha procedure & no others, must be
\nfollowed until altered by subsequent
\nlegislation.”\n<\/p>\n
 The following passage is also from Craies, p. 315 <\/p>\n
 “In Middleton v. Crofts, (1786) 2 Atk.
\n650, Lord Hardwicke said : ‘Sobsequent Acts of Parliament
\nin the affirmative giving new penalties & institution new
\nmodes of proceeding, do not repeal former methods &
\npenalties ordained by preceding Acts without negative
\nwords.” “if, however,” as Lord Campbell said in Mitchell
\nv. Brown (1859) 28 L. 3 M. O. 53, “a later statute again
\ndescribes an offence which had been previously created by
\na former statute & affixes a different punishment to it &
\nvaries the procedure, or if the later enactment expressly
\naltered the quality of the offence aa by making it a
\nmisdemeanour instead of a felony or a felony instead
\nof a misdemeanour, tie later enactment must be taken as
\noperating by say of substitution & not cumulatlvely.” The
\nnext passage ia from p. 195 of Maxwell :
\n  “Indeed, it has been laid down generally,
\nthat if a later statute again describes an offence created
\nby a former one & affixes a different punishment to it.
\nvary-ing the procedure –giving, for instance, nn appeal
\nwhere there was no appeal before–the earlier statute ia
\nim-pllediy repealed by it.”\n<\/p>\n
 7. As against these passages of undoubted weight, the
\nonly fresh argument which Mr. Bishan Naram was able to
\nadvance was that the cases on which they were based were
\nprior to the enactment of the English Interpretation Act
\nof 1889 which in some respects ia similar to the Indian
\nGeneral Clauses Act<\/a>. Section 33<\/a> of thia Act reads :
\n   Where an act or omission constitutes an
\noffence under two or more Acts or both under an Act and at
\ncommon law, whether any such Act was passed before or
\nafter the commencement of this Act, the offender shall,
\nunless the contrary intention appears, be liable to bo
\nprosecuted & punished under either or any of those Acts or
\nat common law, but shall not be liable to be punished
\ntwice for the same offence.”\n<\/p>\n
 In    essence  this section  is the same as  Section
\n26<\/a>, General  Clauses   Act<\/a>,   the  only   change  of any
\nimportance being the introduction of the   words in the
\nEnglish Act<\/a> “unless the contrary intention appears” which
\ndo not appear in the Indian Act<\/a>. I do not,   however,
\nconsider  the  fact  that  the cases relied on by   Craies
\n& Maxwell were  prior to the Act of 1889, or the
\ndifference in the  wording of Section 33<\/a> of  tbe   Act & S
\n16, General   Clauses Act<\/a>, really have much effect  on
\nthe   argument, or on the principles  set forth by
\nCraiea & Max well  which are obviously fundamental
\nprinciples governing the interpretation of statutes.  I do
\nnot consider that the ternn of Section 26<\/a>,   General
\nClauses Act<\/a>, broad aa they are, prealude the possibility
\nof repeal by  implication & in   order   to  decide the
\npoint it is again necessary to  consider  the  pro-visions
\nof Act II [2] of 1947. There  ia  no  doubt whatever that
\nthia Act dues repeal by implication certain other
\nprovisions in existing  statutes.  As I have already
\npointed out, Section 7<\/a> repeals by impli-ca ion, without
\nmentioning  them, certain   provi-aions in Section  342 of
\nthe Criminal P. C. & Section (sic) Oaths Act<\/a>. The
\npresumptions  raised  in Section 4<\/a> & Section 6<\/a> (sic) also
\nmodify, & to that extent repeal certain  provisions of the
\nEvidence   Act<\/a> without   mentioning this Act.   The only
\nprovisions in the Act which expressly repeal  or  modify
\nprovisions   of other statutes are those by which offenaeg
\ntinker ss. 161<\/a> & 165<\/a>, Penal Code<\/a>, are made cognizable
\noffences, & those by which investigation or arrest without
\na warrant are taken  away  from  Police  Officers under
\nthe   rank  of   Deputy  Superintendent  of Police,
\ntheae  being  only   minor  changes.   The major
\namendments  to   existing  statutes in the Act are all
\nonly by implication, & it   is therefore not  difficult
\nto  come  to  the  conclusion   of an offence under
\nSection 409<\/a>, Penal Code<\/a>,  by a public servant in Section 6<\/a>
\n(1) (c)   also intended   to  supersede Section 409<\/a>, Penal
\nCode<\/a>, so far  as  is  concerns  public servants by Section
\n5<\/a> (1) (c), & to apply the procedural
\n& other changes contained  in the Act to public
\nservants who committed offences punishable previously
\nunder Section 409<\/a>, Penal Code<\/a>. To hold other. wise woutd
\nlead to an anomalous situation & I must confess tbat I am
\nunable to understand the attitude of the State in wishing
\nstill to have the liberty to proceed againat public
\nservants under Section 408<\/a>, Penal Code<\/a>, & thereby deny
\nthem the benefits of Act II [2] of 1947 including the
\nright to appear as witnesses the necessity of sanction for
\ntheir prosecution, & the possibility not only of receiving
\na lesser maximum sentence of imprisonment, but also of not
\nbeing sentenced to any imprisonment at all on conviction.
\nI would therefore adhere to my previous decision & hold
\nagain that as long as Section 6 of Act II [2] of 1947
\nremains in force the provisions of Section 409<\/a>, Penal
\nCode<\/a>, so far as they concern offences by public servants
\nare pro tanto repealed by Section 5<\/a> (1) (c) of Act II [2]
\nof 1947.\n<\/p>\n
 8. The other question for consideration is the effect
\nof the fact that Gurcharan   Singh   respon-dent had been
\nremoved from public service before the chalan in the case
\nagainst him was put into Court. This question falls into
\ntwo parts, the first being   whether  the  word  ‘is’ in
\nthe  phrase ‘is employed’ which is used both in Section
\n197<\/a>, Criminal P C. & in   Sub-section (a) A&(b) of Section
\n6  of   Act II [2] of 1947 refers to the  date  on   which
\nthe alleged offence   was committid, or to the date on
\nwhich the   Court  takes   cognizance  of  the case, & the
\nsecond being whether   in   the  present  case  the Court
\ntook cognizance of the case on the date on which the
\nchalan was presented   before   it, or on the  date  on
\nwhich   immediately   following his arrest; the accused
\napplied for & was granted bail. There is no doubt that on
\nthe first of these points the weight of authority is  very
\nheavily  on  the side of the State. There are two
\ndecisions  reported as Sugan Chand v. Narain Das, A. I. R.
\n(19) 193(sic) Sind 177 and In re Section 7<\/a>. Patil. A. I.
\nR. (24) 1937 Nag. 293 in which the Courts  took the  view
\nthat the word ‘is’ in Section 19(sic)<\/a>, Criminal P. C.
\nreferred to the time of the commission of the  alleged
\noffence, & not to  the  date  on   which the Court took
\ncognizance of the case but these views have been dissented
\nfrom   in   Suraj    Narain v. Emperor<\/a>, a. I B. (25) 1938
\nALL. 613; Prasad Chandra v. Emperor<\/a>,   A. I. R. (30) 943
\ncal. 527 & Empe-ror v.   P. A. Joshi,   A. I   R. (35)
\n1918 Bom,  248. There are as  yet  apparently   no
\ndecided  cases under Section 6 of Act II (2) of 1947; but
\nboth in Section 197<\/a>, Criminal P C., &  in  this section
\nthe  relevant words are similar. The  essendal  part  of
\nSection 197<\/a>
\nreads:\n<\/p>\n
   or when any public servant who ia not
\nremovable from his office …. is accused of any offence
\n….. no Court shall take cognizance of such
\noffence”.\n<\/p>\n
 & the relevant words of Section 6<\/a> are:
\n  ‘No Court shall take cognizance of an offence
\nalleged to have been committed by a public servant, except
\nwith the previous sanction …. in the case of a person
\nwho is employed:\n<\/p>\n
 In view of this form of wording in the two sections
\nclearly the same principles would apply to them in this
\nmatter. The views of the Calcutta and Bombay High Courts
\nwere that without any doubt the protection afforded by
\nSection 197<\/a>, Criminal P. C. was only intended to be enjoyed
\nby Judges, Magistrates & other public servants while still
\nin office, and that no sanction was necessary for the
\nprosecution of a Govt. servant who had already been
\ndischarged from service before the case was brought against
\nhim, & I entirely agree with this interpretation.\n<\/p>\n
 9. Finally there is the question whether the trial
\nCourt could be said to have taken cognizance of the case
\nmerely by entertaining the respondent’s bail application
\nwhile he was still a public servant a week before he was
\ndischarged from service. In my opinion the view of the
\nlearned Ses. J. on this point was correct. It is not clear
\nhow the respondent’s bail application came to he filed in
\nthe Court of this particular Magistrate, but it is suggested
\nthat the reason was that the learned Magistrate was a
\nSpecial Magistrate dealing generally with cases of this
\ntype. It is, however, quite clear that at the time the bail
\napplication was filed and accepted by him the investigation
\nwas still far from complete, and that at a later stage
\neither the case might be withdrawn, or it might go to the
\nCourt of some other Magistrate. Admittedly the meaning of
\nthe phrase “taking cognizance” has not been precisely
\ndefined in the Code<\/a> of Criminal Procedure, but, as the
\nlearned Sessions Judge has pointed out, bail applications
\nare frequently considered both by Ses. J. & by the High
\nCourt during the preliminary stages of cases and yet Section
\n193<\/a>, Criminal P. C. provides that no Sessions Court shall
\ntake cognizance of any offence as a Court of original juris
\ndiction unless the accused has been duly committed, and
\nSection 194<\/a> provides for the circumstances under which a
\nHigh Court may take cognizance of any offence. From this it
\ncan be deduced that the term ‘taking cognizance’ has no
\nconnection with entertaining a bail application while a case
\nis still at the stage of a Police Investigation. Moreover
\nmany bail applications are dealt with by so-called “duty”
\nMagistrates, in whose case it is merely a coincidence if
\nthey subsequently have to deal with. Particular cases in
\nwhich they have already dealt with bail application in their
\ncapacity as duty Magistrates. I therefore agree with the
\nview that dealing with a bail application is something quite
\nseparate & distinct from taking cognizance of a case.\n<\/p>\n
 10. The net result is that while the case against the
\nrespondent must proceed against him under Section 5<\/a> (1) (c)
\nof Act II (2) of 1947, the case can proceed without any
\nsanction as provided in Section 6<\/a> of the Act. I would
\naccordingly accept the recommendation of the learned Ses. J.
\n& set aside the order ot the trial Court discharging the
\naccused and remand the case to it for trial according to
\nlaw. The other revision petitions which were put up for
\nhearing along with this may now be returned for hearing by
\nsingle Judges & decision on the various points involved in
\nthe light of the decision on the first point decided
\nabove.\n<\/p>\n
 11. Khosla, J.\n<\/p>\n
 I agree.\n<\/p>\n
 Case remanded.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court The State vs Gurcharan Singh on 5 December, 1950 Equivalent citations: AIR 1952 P H 89 Author: Falshaw Bench: Koshla, Falshaw JUDGMENT Falshaw, J. 1. The circumstances giving rise to-this reference by the learned Ses. J. at Delhi, Criminal Revision 893 of 1949, are as follows. Gurcharan Singh respondent was formerly em- […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-254431","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nThe State vs Gurcharan Singh on 5 December, 1950 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-vs-gurcharan-singh-on-5-december-1950\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State vs Gurcharan Singh on 5 December, 1950 - 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