{"id":76885,"date":"1957-01-11T00:00:00","date_gmt":"1957-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/om-prakash-gupta-vs-state-of-u-p-with-connected-on-11-january-1957"},"modified":"2015-10-01T20:43:09","modified_gmt":"2015-10-01T15:13:09","slug":"om-prakash-gupta-vs-state-of-u-p-with-connected-on-11-january-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/om-prakash-gupta-vs-state-of-u-p-with-connected-on-11-january-1957","title":{"rendered":"Om Prakash Gupta vs State Of U. P.(With Connected … on 11 January, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Om Prakash Gupta vs State Of U. P.(With Connected … on 11 January, 1957<\/div>\n
Equivalent citations: 1957 AIR 458, \t\t 1957 SCR 423<\/div>\n
Author: P G Menon<\/div>\n
Bench: Das, Sudhi Ranjan (Cj), Bhagwati, Natwarlal H., Aiyyar, T.L. Venkatarama, Das, S.K., Menon, P. Govinda<\/div>\n
           PETITIONER:\nOM PRAKASH GUPTA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U. P.(with connected appeals)\n\nDATE OF JUDGMENT:\n11\/01\/1957\n\nBENCH:\nMENON, P. GOVINDA\nBENCH:\nMENON, P. GOVINDA\nDAS, SUDHI RANJAN (CJ)\nBHAGWATI, NATWARLAL H.\nAIYYAR, T.L. VENKATARAMA\nDAS, S.K.\n\nCITATION:\n 1957 AIR  458\t\t  1957 SCR  423\n\n\nACT:\nImplied\t repeal-Whether s. 409 of the Indian Penal  Code  is\nimpliedly  repealed  by\t s. 5(I)(c)  of\t the  Prevention  of\nCorruption Act, 1947 (11 Of 1947)-Whether the application of\ns.  4o9\t of  the  Indian Penal\tCode  to  a  public  servant\ninfringes  Art.\t 14  of\t the  Constitution  Sanction-Whether\nsanction  under\t s. 6 of the Prevention\t of  Corruption\t Act\nnecessary  for prosecution under s. 409 of the Indian  Penal\nCode.\n\n\n\nHEADNOTE:\nThe  offences under s. 409 Of the Indian Penal Code  and  s.\n5(1)(c)\t of  the  Prevention of\t Corruption  Act,  1947\t are\ndistinct  and  separate,  and there is\tno  question  Of  s.\n5(1)(c) of the Prevention of Corruption Act, 1947  repealing\ns. 409 of the Indian Penal Code.\nAmarendra  Nath Roy v. The State, A. 1. R. [1955] Cal.\t236,\napproved.\nThe legislature would not have intended in the normal course\nof  things, that a temporary statute like the Prevention  of\nCorruption  Act,  1947,\t should supersede  an  enactment  of\nantiquity like the Indian Penal Code.\nIn the view that the two offences under S. 409 Of the Indian\nPenal  Code and s. 5(I)(c) of the Prevention  of  Corruption\nAct  are distinct and separate there is no  infringement  of\nArt. 14 Of the\n55\n424\nConstitution  in  the application of S. 409  of\t the  Indian\nPenal Code to a public servant.\nSanction  under\t s. 6 of the Prevention of  Corruption\tAct,\n1947 is not necessary for a prosecution under s. 409 of\t the\nIndian Penal Code.\nState  v. Pandurang Baburao, A. I. R. (1955) Bom. 451,\tBhup\nNarain Saxena v. State, A. 1. R. (1952) All. 35 and State v.\nGulab Singh, A.<\/a> 1. R. (1954) Raj. 211, approved.\nState v. Gurcharan Singh,<\/a> (,952) Punj. 89, overruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION Criminal Appeals No. 42  of
\n1954 and Nos. 3 and 97 of 1955.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJuly  7,  1953,\t of the Allahabad  High\t Court\tin  Criminal
\nRevision  No. 1113 of 1953 arising out of the  judgment\t and
\norder  dated June 24, 1953, of the Court of Sessions  Judge,
\nKumaun, in Criminal Appeal No. 42 of 1953 (N).\tAppeal under
\nArticle\t 134 (1) (c) of the Constitution from  the  judgment
\nand  order  dated December 23, 1954, of the  Allahabad\tHigh
\nCourt  (Lucknow Bench) in Criminal Revision No. 141 of\t1951
\nand Criminal Miscellaneous Applications Nos. 454 of 1952 and
\n159 of 1953 arising out of the judgment and order dated June
\n4,  1951,  of  the  Civil and  Sessions\t Judge,\t Sitapur  in
\nCriminal  Revision No. 5 of 1951.  Appeal by  special  leave
\nfrom  the judgment and order dated January 16,1952,  of\t the
\nJudicial  Commissioner’s  Court, Vindhya Pradesh,  Rewa,  in
\nCriminal  Revision  No.\t 216  of 1951  arising\tout  of\t the
\njudgment and order dated September 29, 1951, of the Court of
\nSessions Judge at Rewa in Criminal Appeal No. 14 of 1951.
\nS.   C.\t Isaacs\t and P. C. Agarwala, for  the  appellant  in
\nCriminal Appeal No., 42 of 1954.\n<\/p>\n
S.   C.\t Isaacs and 0. N. Srivastava, for the  appellant  in
\nCriminal Appeal No. 3 of 1953.\n<\/p>\n
S.   C. Isaacs, J. B. Dadachanji, S. N. Andley and Rameshwar
\nNath, for the appellant in Criminal Appeal No. 97 of 1955.
\nG.   C. Mathur and C. P. Lal, for the respondent in Criminal
\nAppeals Nos. 42 of 1954 and 3 of 1955.\n<\/p>\n
425<\/span><\/p>\n
Porus  A.  Mehta  and R. H. Dhebar, for\t the  respondent  in
\nCriminal Appeal No. 97 of 1955.\n<\/p>\n
1957.  January 11.  The Judgment of the Court was  delivered
\nby
\nGOVINDA MENON J.-Though these three appeals have been  filed
\nagainst\t the  decisions\t of different  courts  and  are\t not
\nconnected  either  as regards community or  purpose  or\t the
\nidentity  of  the  accused they have  beer  heard  together,
\nbecause\t the points of law raised in them are identical\t and
\nthe  arguments\tof counsel have proceeded on  common  lines.
\nHence a common judgment dealing with the legal aspect  would
\nbe apt in the circumstances.\n<\/p>\n
Criminal  Appeal  No. 42 of 1954 has been  preferred  by  Om
\nPrakash Gupta against the dismissal of his Revision Petition
\nby  the\t High  Court of\t Allahabad,  thereby  affirming\t the
\nappellate  decision of the Sessions Judge of Kumaun  who  in
\nhis  turn maintained the sentence of  rigorous\timprisonment
\nfor  one year and a fine of Rs. 500 passed on the  appellant
\nby the Special 1st Class Magistrate of Nainital on April 30,
\n1953, under s. 409 of the Indian Penal Code.  This appellant
\nwas a clerk in the Electric Department of Haldwani Municipal
\nBoard and the charge against him was that he received  three
\nsums of money:\n<\/p>\n
Rs. 242\/5\/9(Ex.\t P. 14) on July 28, 1951,
\nRs. 70\/-  (Ex.\tP. 17) on October 19, 1951,
\nRs. 135\/- (Ex.\tP. 13) on October 23, 1951.\n<\/p>\n
aggregating  to\t Rs. 447\/5\/9 and misappropriated  the  whole
\namount,\t though\t his defence was that  having  received\t the
\nmoney,\the  gave  it to his  official  superior,  Electrical
\nEngineer  Pandey; and did not have anything more to do\twith
\nthe  money.  The Police charge sheet was under ss.  409\t and
\n467  of the Indian Penal Code, but the conviction  was\tonly
\nunder  the  former  section.  The  conviction  and  sentence
\nimposed upon him by the trial court having been confirmed in
\nappeal by the learned Sessions Judge and further having been
\naffirmed  by dismissal of his revision by the High Court  of
\nAllahabad, have now become the subject of
\n126<\/span>
\nappeal, as special leave has been granted on the question of
\nlaw raised.\n<\/p>\n
Om Prakash, the appellant in Criminal Appeal No. 3 of  1955,
\nhad  obtained  leave  to  appeal  from\tthe  High  Court  of
\nAllahabad against the opinion of a Full Bench of that  court
\nin  Criminal Revision No. 141 of 1951, by which it  affirmed
\nthe  order  of the Civil and Sessions Judge  of\t Sitapur  in
\nCriminal  Revision No. 5 ,if 1951, holding that\t Om  Prakash
\nwas  improperly discharged by the learned Magistrate  of  an
\noffence tinder s. 409, Indian Penal Code, and directing\t the
\nMagistrate to make a further inquiry into the matter of that
\noffence.   It  may be mentioned that the learned  1st  Class
\nMagistrate   held  that\t sanction  was\tessential  for\t the
\nprosecution  of\t Om  Prakash and as the same  had  not\tbeen
\ngranted,  the prosecution was not maintainable.\t  This\tview
\ndid not find acceptance at the hands of the learned Sessions
\nJudge,\twhose  decision was affirmed by the  High  Court  of
\nAllahabad.   The  charge  against him was that\tas  a  canal
\naccountant  in a Divisional Engineer’s office  he  committed
\ncriminal breach of trust of a certain sum of money.
\nLal  Ramagovind Singh, the appellant in Criminal Appeal\t No.
\n97  of 1955, was the Director of Agriculture in\t the  Indian
\nState  of  Rewa\t and for the  offence  of  having  committed
\ncriminal  breach  of trust of an amount of Rs.\t586\/10\/-  on
\nDecember  4,  1948, he was prosecuted under s.\t409  of\t the
\nIndian\tPenal Code, on August 13, 1949, and  after  inquiry,
\ncharges\t were  framed  against him  on\tFebruary  24,  1950,
\nresulting in a judgment of conviction by the trial court  on
\nSeptember  29, 1950, and a sentence of one  year’s  rigorous
\nimprisonment  and  a  fine of Rs. 500.\tHis  appeal  to\t the
\nSessions  Judge was dismissed on September 29,1951, and\t the
\nrevision  to the Judicial Commissioner shared the same\tfate
\non  January 16, 1952.  Special leave having been granted  to
\nhim, Criminal Appeal No. 97 of 10-55 was the outcome.
\nThe first question for consideration is whethers. 409 of the
\nIndian Penal Code, in so far as it applies to\t  a   public
\nservant\t (in this case the three appellants were  admittedly
\npublic servants), has been impliedly
\n\t\t\t    427<\/span>
\nrepealed by the enactment of ss. 5 (1) (c) and 5 (2) of\t the
\nPrevention of Corruption Act II of 1947, and if ‘that is so,
\nwhether\t a prosecution of the appellants for an\t offence  of
\ncriminal breach of trust without the requisite sanction\t and
\nwithout\t conforming to the provisions of the  Prevention  of
\nCorruption  Act,  can  be  legally  sustained.\t Two   other
\nquestions  have\t also  been urged before us  and  they\tare:
\nAssuming  that there was no such implied repeal,  would\t the
\napplication  of s. 409 of the Indian Penal Code to a  public
\nservant\t infringe Art. 14 of the Constitution, now that\t the
\nprovisions  of\tthe  Prevention of Corruption  Act  and\t the
\nprocedure laid down thereunder are available to deal with  a
\nbreach\tof  trust  by a public servant; ‘and  next,  if\t the
\nappellants  do not succeed on the first two points,  whether
\nthe  provision\tfor sanction required by the  Prevention  of
\nCorruption  Act would also similarly apply to a\t prosecution
\nunder s. 409 of the Indian Penal Code.\n<\/p>\n
What  is  first to be determined is whether s.\t409  of\t the
\nIndian\tPenal  Code,  deals with the same  offence  as\tthat
\ncontemplated under ss. 5(1)(c) and 5(2) of the Prevention of
\nCorruption Act, and if so, has there been an overlapping  of
\nlegislation  over  the same field; and has  the\t latter\t one
\nimpliedly  repealed  the  earlier.   For  that\tpurpose\t the
\nprovisions  of\tthe  two  statutes  have  to  be  succinctly
\nanalysed to understand the full scope and the import of\t the
\ntwo.\n<\/p>\n
The fasciculus of sections contained in Chapter XVII of\t the
\nIndian Penal Code beginning with s. 405 of the Indian  Penal
\nCode  and ending with section 409 of the Indian\t Penal\tCode
\ndeals  with  criminal breach of trust.\tSection 405  of\t the
\nIndian\tPenal Code defines criminal breach of trust  and  s.
\n409  of\t the  -Indian Penal Code is an\taggravated  form  of
\ncriminal  breach  of trust when the same is committed  by  a
\npublic servant, banker, merchant, etc.\tAnalysing s. 405  of
\nthe Indian Penal Code, into its component ingredients, it is
\nseen that the following essential ingredients are absolutely
\nnecessary to attract the operation of the section:\n<\/p>\n
(i)  The accused must be entrusted with property or dominion
\nover property;\n<\/p>\n
428<\/span><\/p>\n
(ii) The   person   so\tentrusted  must\t  (a,)\t dishonestly
\nmisappropriate or convert to his own use that property, or\n<\/p>\n
(b)  dishonestly use or dispose of that property or wilfully
\nsuffer any other person to do so in violation
\n(1)  of any direction of law prescribing the mode in which  such
\ntrust is to be discharged, or
\n(11) of\t any legal contract made touching the  discharge  of
\nsuch trust.\n<\/p>\n
In the above cases he is said to commit a criminal breach of
\ntrust.\n<\/p>\n
Section\t 409  of  the  Indian  Penal  Code  lays  down\t the
\npunishment  when such criminal breach of trust is  committed
\nby a public-servant, banker, merchant, etc.
\nNow we have to ascertain the provisions of the Prevention of
\nCorruption Act dealing with criminal misconduct.
\nThe  preamble of the Act makes it clear that  the  intention
\nwas to make more effective provisions for the prevention  of
\nbribery and corruption.\t From this itself, it is clear\tthat
\nthe  legislature was alive to the fact that  something\tmore
\nstringent  and drastic than s. 409 of the Indian Penal\tCode
\nwas  necessary\tin  the case of bribery\t and  corruption  by
\nPublic servants and it was to effectuate that intention that
\nthe  Act was put on the statute book.  The duration of\tthis
\npiece  of legislation in the first instance was only  for  a
\nperiod\tof five years which later on was extended by Act  II
\nof  1952 for ten years which would mean\t that  automatically
\nthe Act would expire by about the middle of 1957.
\nSection\t 3  lays down that offences under ss. 161,  165\t and
\n165-A of the Indian Penal Code which under the provisions of
\nthe  Criminal  Procedure Code were not cognizable  are\tmade
\ncognizable.   Section 5 enacts that where a  public  servant
\naccepts, agrees to or obtains gratification other than legal
\nremuneration, then it shall be presumed unless the  contrary
\nis proved, that he accepted, obtained or agreed to accept or
\nattempted to obtain that gratification or valuable thing  as
\na  ‘motive or reward such as is mentioned in  ,section\t161,
\netc., etc.  Sub-section 2 of s. 4 also deals
\n\t\t\t    429<\/span>
\nwith  this presumption.\t We are concerned in  these  appeals
\nwith  s. 5. Sub-sections I (a) and 1 (b) of s. 5,  which  is
\ndesignated  as criminal misconduct in discharge of  official
\nduty  by a public servant, deal with persons who  habitually
\naccept or obtain or agree to obtain gratification other than
\nlegal remuneration as a motive or reward as mentioned in  s.
\n161 of the Indian Penal Code.  It is -not necessary to\tdeal
\nwith  these  two subclauses in detail because  there  is  no
\nquestion  of any acceptance of illegal gratification in\t the
\npresent\t cases\tbut one thing that has to be  remembered  is
\nthat  these  sub-sections deal with habitual  acceptance  or
\nobtaining,  etc., whereas ss. 161 and 165 deal with  even  a
\nsingle\tacceptance or obtaining.  The result is\t that  under
\nss.  161 and 165 of the Indian Penal Code a prosecution\t can
\nbe  laid even in the case of a single act by which a  public
\nservant has accepted an illegal gratification, but in  order
\nto  attract  cls.  5 (1) (a) and 5(1)  (b),  there  must  be
\nhabitual  commission  of the crime.  Any stray or  a  single
\ninstance would not suffice to bring within the ambit of\t the
\nsection\t the offence as contemplated in ss. 5 (1) (a) and  5
\n(1)  (b).  The result is that the offences under ss.  5\t (1)\n<\/p>\n
(a)  and  5 (1) (b) are an aggravated form  of\tthe  offence
\nunder ss. 161 and 165 of the Indian Penal Code.
\nAs  we\tare  concerned with s. 5 (1) (c), the  same  may  be
\nquoted in extenso:\n<\/p>\n
“If  he\t dishonestly  or  fraudulently\tmisappropriates\t  or
\notherwise converts for his own use any property entrusted to
\nhim  or under his control as a public servant or allows\t any
\nother person so to do.”\n<\/p>\n
Section\t 5  (1) (d) lays down that if a\t public\t servant  by
\ncorrupt\t or  illegal  means  or\t by  otherwise\tabusing\t his
\nposition as a public servant, obtains for himself or for any
\nother  person any valuable thing or pecuniary advantage,  he
\ncommits the offence.\n<\/p>\n
Section\t 5(2)  makes  the  offence  of\tcriminal  misconduct
\npunishable with imprisonment which may extend to seven years
\nor with fine or with both.  Sub-section (3) is an  important
\npiece  of legislation to the effect that where a  person  is
\ncharged\t under\ts.  5(1) and it is found  that\tthe  accused
\nperson cannot satisfactorily
\n430<\/span>
\naccount\t for  the  pecuniary  resources\t or  property\tdis-
\nproportionate to his known sources of income, then  the fact
\nthat  he has such extensive pecuniary resources or  property
\nis sufficient to presume, until the contrary is proved, that
\nthe accused person was guilty of criminal misconduct in\t the
\ndischarge  of  his official duty and a conviction  for\tthat
\noffence shall not be invalid by reason only that it is based
\nsolely\ton such presumption.  It is clear,  therefore,\tthat
\nwhere a person is charged with criminal misconduct and it is
\nseen  that he is in possession of property or  income  which
\ncould  not  have  been amassed or  earned  by  the  official
\nremuneration  which  he\t had obtained,\tthen  the  court  is
\nentitled to come to the conclusion that the amassing of such
\nwealth\twas due to bribery or corruption and the  person  is
\nguilty\tof  an\toffence\t of  criminal  misconduct.   Such  a
\npresumption  cannot  be drawn in the case of  a\t prosecution
\nunder ss. 161, 165 and 409 of the Indian Penal Code.
\nSection 6 provides that for the prosecution of an offence of
\ncriminal misconduct under s. 5(2) or for an offence under s.
\n161  or 165 of the Indian Penal Code, previous\tsanction  is
\nnecessary  of  either the Central Government  or  the  State
\nGovernment   or\t the  authority\t competent  to\tremove\t the
\nGovernment  servant.  The last section of the statute  is  a
\ndeparture   or\tdeviation  from\t the  procedure\t till\tthen
\nobtaining  in a criminal case and thereby an accused  person
\nis  held competent to be a witness on his  behalf.   Whereas
\nunder  s.  342, Indian Penal Code, as it  stood\t before\t the
\nrecent\tamendment,  no\taccused person was  entitled  to  be
\nadministered  on oath and thereby competent to testify in  a
\ncourt  of law in a case in which he is accused; under  s.  7
\nany  person charged with an offence punishable under s’\t 161
\nor s. 165 or 165-A of the Indian Penal Code, or under sub-s.
\n(2)  of\t s.  5 of the Prevention of  Corruption\t Act,  is  a
\ncompetent  witness for the defence and may give evidence  on
\noath  in  disproof of the charges made against\thim  or\t any
\nperson\tcharged\t together with him at the  same\t trial;\t and
\nthere are also certain safeguards provided in the matter  of
\ngiving such testimony.\n<\/p>\n
431<\/span><\/p>\n
We have now referred to the relevant provision of Act II  of
\n1947  in  which\t the  most important  one  for\tour  present
\nconsideration is s. 5(1)(c).  It will be useful to institute
\na comparison between s. 405 of the Indian Penal Code -and s.
\n5(1)(c)\t of Act II of 1947.  The question of entrustment  is
\ncommon\tunder s. 405 of the Indian Penal Code and  under  s.
\n5(1)(c) of the Prevention of Corruption Act.  Whereas  under
\nsection 405 of the Indian Penal Code dishonest misappropria-
\ntion or conversion to his own use of that property would  be
\nthe  necessary\tcriterion,  with regard to  s.\t5(1)(c)\t the
\nmisappropriation or conversion may be either dishonestly  or
\nfraudulently or otherwise.\n<\/p>\n
Then again there is a further fact under s. 5(1)(d) that  if
\nthe public servant by corrupt or illegal means or  otherwise
\nabuses\this  position as a public servant  and\tobtains\t for
\nhimself\t or  for  any other person  any\t valuable  thing  or
\npecuniary: advantage, then he will be guilty of the offence.
\nWe  may,  therefore, give below the ingredients of  the\t two
\nsections:-\n<\/p>\n
Section 405 of the Indian Penal Code.\n<\/p>\n
1.Entrusting  any person with property or with any  dominion
\nover property.\n<\/p>\n
2.   The person entrusted\n<\/p>\n
(a)  dishonestly  misappropriating or converting to his\t own
\nuse that property.\n<\/p>\n
(b)  dishonestly  using\t or disposing of  that\tproperty  or
\nwilfully suffering any other person to do so in violation-\n<\/p>\n
(i)of  any direction of law prescribing the, mode  in  which
\nsuch  trust  is\t to  be discharged, or\n<\/p>\n
(ii)  of any legal contract made touching the  discharge  of
\nsuch trust.\n<\/p>\n
Prevention of Corruption Act II of 1947: Section 5(1):\n<\/p>\n
(c)   dishonestly   or\tfraudulently   misappropriating\t  or
\notherwise converting for his own use any property  entrusted
\nto him, or under his control as a public servant or allowing
\nany other person to do so.\n<\/p>\n
(d)  If\t he  by\t corrupt or illegal means  or  by  otherwise
\nabusing his position as a public servant,
\n56<\/span>
\n432<\/span>
\nobtains\t for  himself or for any other person  any  valuable
\nthing or pecuniary advantage.\n<\/p>\n
Now  dishonestly’  as defined in s. 24 of the  Indian  Penal
\nCode  connotes the doing of anything with the  intention  of
\ncausing\t wrongful  gain to one person or  wrongful  loss  to
\nanother\t person and s. 25 defines I fraudulently as doing  a
\nthing  with  intent to defraud but lot, otherwise.   It\t is,
\ntherefore,  clear that s. 5 (1) (e) is wider in\t ambit\tthan
\nsection 405 of the Indian Penal Code.\n<\/p>\n
The  argument of the learned counsel for the  appellants  is
\nthat  though  the  offences under  the\ttwo  provisions\t are
\nidentical,  there  are some advantages where  the  trial  is
\nunder  s. 5 (1) (e) and certain disadvantages as well.\t The
\nadvantages are:-\n<\/p>\n
(1)  The punishment for criminal misconduct is less than the
\npunishment for breach of trust by a public servant;
\n(2)  It\t is  necessary\tto obtain previous  sanction  for  a
\nprosecution  under  s.\t5 (1) (c), whereas in  the  case  of
\nbreach\tof trust by a public servant, such sanction  may  or
\nmay not be necessary;\n<\/p>\n
(3)  The  investigation\t of an offence under s.\t 5  (1)\t (c)
\nshould\tbe by an officer of a higher grade though that\tdoes
\nnot obtain so far as the present appeals are concerned;
\nand
\n(4)  The accused person has the right of giving evidence  on
\nhis behalf.\n<\/p>\n
The  disadvantages are that in such a trial the\t presumption
\nreferred  to in s. 4(3) can be drawn against the accused  if
\nit  is\tfound that he has pecuniary resources  for  property
\ndisproportionate to his known sources of income and also the
\ntwo  presumptions  regarding the acceptance  of\t a  valuable
\nthing from any person by a public servant as contemplated in
\nsub-ss. (1) and (2) of s. 4. These differences, according to
\nthe  learned  counsel for the appellant, do not in  any\t way
\nmake  the  offence  under s. 5\t(1)(c)\tdifferent  from\t the
\noffence under s. 409 of the Indian Penal Code, but that only
\nanother\t method of procedure is prescribed and\ta  different
\nmode  of  approach is laid down when an offence under  s.  5
\n(1)(c) is enquired into or tried.\n<\/p>\n
433<\/span><\/p>\n
Mr. Isaacs strenuously urges that if there are two different
\nstatutes, one enacted later than the other, and if the later
\nstatute\t deals with the same subject matter, the two  cannot
\nstand  together\t and  the earlier  one\tbeing  redundant  or
\nrepugnant must be deemed to have been repealed.\t The  result
\nis  that  whereas  in this case\t there\tare  penal  statutes
\ndealing with the same subject matter’ and the penalties\t and
\nprocedure  prescribed  by the, statutes are  different\tfrom
\neach  other, then the later one must be taken to  repeal  or
\nsupersede the earlier.\n<\/p>\n
Reliance  is  placed on certain\t observations  contained  in
\nZaverbhai Amaidas v. The State of Bombay<\/a> (1) containing some
\nquotations  from  the  judgment of Goddard J.  in  Smith  v.
\nBenabo\t(2)  to\t the following,\t effect:-“That\tif  a  later
\nstatute\t again\tdescribes an offence created by\t a  previous
\none,  and     imposes a different punishment, or varies\t the
\nprocedure,  the\t earlier statute is repealed  by  the  later
\nstatute: see Michell v. Brown(3), per Lord Campbell and also
\nAttorney-General  for  Ontario v. Attorney-General  for\t the
\nDominion(4 ).\n<\/p>\n
On  the\t footing that s. 5 (1) (c) of Act II of\t 1947  deals
\nwith  the  same subject with regard to, public\tservants  as
\nthat portion of s. 409 of the Indian Penal Code, Mr.  Isaacs
\ndrew  our attention to The State v. Gurcharan Singh<\/a>(5).\t  In
\nthat  case Falshaw J. in delivering the judgment of a  Bench
\nconsisting of him-self and Khosla J. held that so long as s.
\n5 of Act 11 of 1947 remained in force, the provisions of  s.
\n409  of\t the  Indian Penal Code, so far\t as  it\t related  to
\noffences  by public, servants, stood repealed.\tThe  learned
\nJudge  after  referring\t to the various\t provisions  of\t the
\nPrevention  of Corruption Act came to the above\t conclusion.
\nAfter adverting to s. 26 of the General Clauses Act and\t its
\ncounterpart,  s.  33  of the  Interpretation  Act  and\talso
\npassages  from\tMaxwell on Interpretation of  Statutes,\t the
\nlearned\t Judge\twas of opinion that it is  not\tpossible  to
\ninfer that there was no implied repeal.\n<\/p>\n
Before\twe advert to the Indian cases, the first thing\tthat
\nhas to be remembered in this, connection is that
\n(1)  [1955]  1 S.C.R. 799 at pp. 807-809.  (4)\t[1896]\tA.C.\n<\/p>\n
348.
\n(2) [1937] 1 K.B. 518.\t\t   (5) 1952 Punj. 89.\n<\/p>\n
(3)  [1858] 1 E. & E. 267,274; 117 R.R. 206.\n<\/p>\n
134<\/span><\/p>\n
he, Prevention of Corruption Act being a temporary one,\t the
\nlegislature would not have intended in the normal course  of
\nthings\tthat  a temporary statute like the one\tin  question
\nshould\tsupersede  an enactment of antiquity,  even  if\t the
\nmatter covered the same field.\tUnder s. 6(a) of the General
\nClauses\t Act if by efflux of time the period of a  temporary
\nstatute which had repealed an earlier statute expires, there
\nwould not be a, revival of the earlier one by the expiry  of
\nthe temporary statute.\n<\/p>\n
A  Full\t Bench\tof the Bombay High Court  in  The  State  v.
\nPandurang  Baburao  (1) held that the language used  by\t the
\nlegislature in s. 5 (4) of the Prevention of Corruption\t Act
\nclearly\t negatived  any\t suggestion  that  the\t legislature
\nintended  to repeal the provisions of s. 409 of\t the  Indian
\nPenal  Code.   It  cannot also be held that s.\t409  of\t the
\nIndian\tPenal Code if; impliedly repealed by the  Prevention
\nof  Corruption Act because it is impossible to say that\t the
\nprovisions  of the two are wholly incompatible or  that\t the
\ntwo   statutes\t together  would  lead\tto   wholly   absurd
\nconsequences.  Therefore, it was open to the prosecution  to
\nproceed\t with a trial under s. 409 of the Indian Penal\tCode
\nor  under s. 5(2) of the Prevention of Corruption  Act\teven
\nbefore\tthe Amendment of the latter Act by Act LlX  of\t1952
\nand of the prosecution was launched under s. 409 and if\t the
\nstatus of the accused was such that no sanction was required
\nunder  the provisions of the Criminal Procedure\t Code,\tthen
\nthe  prosecution  is  good  and\t the  conviction  Is  proper
\nnotwithstanding\t the fact that if the prosecution  had\tbeen
\nlaunched   under  s.  5(2),  a\tsanction  would\t have\tbeen
\nnecessary.   The learned Judges dissented from\tthe  opinion
\nexpressed  by  Falshaw J. in The state\tv.  Gurcharan  Singh
\n(supra)\t and  also overruled certain earlier  Bombay  cases.
\nThis court is in agreement with the expression of opinion by
\nthe  learned Chief Justice of the Bombay High Court  in\t the
\nabove Full Bench decision.\n<\/p>\n
Ramaswami  J.  of  the\tMadras\tHigh  Court  in\t Be.  V.  V.
\nSatyanarayanamurthy(2)\tcame  to  the  conclusion  that\t  s.
\n5(1)(c) of the Prevention of Corruption Act
\n(1) A.I.R. [1955] Bom.451.\n<\/p>\n
(2) A.L.R. [1953] Mad. 137.\n<\/p>\n
435<\/span><\/p>\n
does  not  repeal s. 409 of the Indian Penal  Code,  and  he
\naccordingly dissented from the view taken in the of case The
\nState v. Gurcharan Singh<\/a> (supra).\n<\/p>\n
The  Calcutta High Court in Amarendra Nath Roy v. The  State
\n(1)  has taken a similar view dissenting from The  State  v.
\nGurcharan Singh<\/a> (supra).  There is a large body of case\t law
\nin  this’  direction and it is unnecessary  to\tmention\t all
\nexcept the following:\n<\/p>\n
(a)  Mahammad Ali v. The State(2)\n<\/p>\n
(b)  Bhup Narain Saxena v. State(3)\n<\/p>\n
(c)  Gopal Das v. State (4).\n<\/p>\n
As  against  all these cases the lone voice of\tthe  -Punjab
\nHigh  Court in State v. Garcharan Singh (supra) is the\tonly
\ndissentient one and after (Considering the matter carefully,
\nit seems to us that the view taken by the Punjab High  Court
\nis not sound.\n<\/p>\n
We  now\t proceed to consider whether the  two  sections\t are
\nidentical in essence, import and content and in our  opinion
\nthe argument ‘on behalf of the State carries much force when
\nit  is suggested that by enacting, the Amending Act of\t1952
\nand  creating  sub s. 4 to s. the  legislature\tspecifically
\nstated that the offence under s. 5 (1) (c) is different from
\nany  previous existing offences under any penal statute\t and
\nthere  can, therefore,, be no scope for\t -speculation  about
\nrepeal.\t  The words used in sub-s. 4 ” any other law ”\tmade
\nthe  position quite clear and explicit.\t Other law does\t not
\nmean identical law in which case the word ‘other’ will\thave
\nno  meaning.  At an earlier stage of this judgment  we\thave
\nalready\t tabulated the different elements  constituting\t the
\ntwo  offences and a clear comparison and contrast  of  these
\nelements  would\t show that an offence under s.\t405  of\t the
\nIndian\tPenal  Code is separate and distinct  from  the\t one
\nunder  s. 5 (1) (c).  There are three points  of  difference
\nbetween\t s. 405 of the Indian Penal Code and s. 5  (1)\t(c).
\nThe dishonest misappropriation contemplated in s. 405 of the
\nIndian Penal Code is different; whereas that under section 5
\n(1)  (c) is either dishonest misappropriation or  fraudulent
\nmisappropriation.   The\t latter section is  much  “wider  in
\namplitude
\n(1)  A.I.R. [1955] Cal. 236.\n<\/p>\n
(2)  A.I.R. [1953] Cal. 681.\n<\/p>\n
(3)  A.I.R. [1952] All. 35.\n<\/p>\n
(4)  A.I.R. [1954] All.\t 80.\n<\/p>\n
436<\/span><\/p>\n
than  the  former.  In s. 405 of the Indian Penal  Code\t the
\nwords  used  are  “In  violation of  any  direction  of\t law
\nprescribing  the  mode\tin  -which  such  trust\t is  to\t  be
\ndischarged,  or of any legal contract, express or  implied.”
\nThere are no such expressions in s. 5 (1)(c).  It is  clear,
\ntherefore,  that  whereas under s. 405 of the  Indian  Penal
\nCode there are three essential ingredients to constitute the
\noffence, each one of them being separate and distinct, in s.
\n5(1)(c)\t there\tare only two.  Now  considering\t s.  5(1)(c)
\nthere are certain matters in it which are absent ins. 405 of
\nthe   Indian   Penal  Code.   The   words   ‘dominion’\t and
\n‘entrustment’  connote\ttwo different things.\tThe  word  I
\ndominion’ is not in s. 5(1)(c).\t We have already stated that
\nthe word ‘.fraudulently’ is not present in s. 405 and in  s.
\n5(1)(c) the gist of the offence can also be made out if\t the
\noffender allows any person so to do, i.e., allows any person
\nto  derogate  from the law as contemplated  in\tthe  earlier
\nportion\t of  the  section.   The meaning  put  on  the\tword
\n‘allows’  would\t ‘certainly be different  from\tI  dishonest
\nmisappropriation’  by the offender himself.  It may be\tthat
\nthe  word  can mean allowing by negligence  or\twithout\t any
\nvolition on the part of the offender.  It may also mean that
\nthere  is  some\t kind of  positive  and\t tacit\tacquiescence
\nnecessary to bring home the offence.  In any event, allowing
\nother  persons so to do does not find a place in s.  405  of
\nthe Indian Penal Code though this section also\tcontemplates
\n“wilfully  suffering any other person so to do.\t ” There  is
\nan essential difference between ” allowing ” a person and  ”
\nwilfully suffering ” a person to do a certain thing.
\n There can, therefore, be no doubt whatever that s.  5(1)(c)
\nof  the Prevention of Corruption Act creates a\tnew  offence
\ncalled\t“criminal  misconduct”\tand  cannot  by\t implication
\ndisplace the offence under s. 405 of the Indian Penal  Code.
\nIn  this connection it is useful to compare ss. 5(1)(a)\t and
\n5(1)(b)\t with ss. 161 and 162 of the Indian Penal Code.\t  As
\nhas  already  been  referred  to,  these  two  sections\t are
\naggravated forms of ss. 161 and 162 of the Indian Penal Code
\nand the intention cannot be to abrogate the earlier
\n437<\/span>
\noffence\t by  the  creation of the new  offence.\t  These\t two
\noffences can co-exist and the one will not be considered  as
\noverlapping  the other.\t A course of’ conduct can be  proved
\nwhen  a person is arraigned under ss. 5(1)(a)  and  5(1)(b),
\nbut  such a course is impossible to be let in evidence\twhen
\nan  offence under ss. 161 and 162 is being enquired into  or
\ntried.\t Similarly there are a number of elements which\t can
\nbe  proved  in\tan inquiry or trial under  s.  5(1)(c)\tthat
\ncannot be let in by the prosecution when a person is charged
\nfor an offence under s. 405 of the Indian Penal Code.  In s.
\n405  of\t the Indian Penal Code the  offender  must  wilfully
\nsuffer\t another  person  to  misappropriate  the   property
\nentrusted, but in s. 5(1)(c) if he allows another person  to
\ndishonestly  or\t fraudulently  misappropriate  or  otherwise
\nconvert\t for his own use any property so entrusted, then  it
\nis an offence.\tThere is a vast difference between  wilfully
\nsuffering  another and allowing a person to do a  particular
\nthing  and in our view the word “allows ” is much  wider  in
\nits import.  Wilfully pre-supposes a conscious action, while
\neven by negligence one can allow another to do a thing.
\nIt  seems  to  us,  therefore, that  the  two  offences\t are
\ndistinct and separate.\tThis is the view taken in  Amarendra
\nNath Roy v. The State (supra) and we endorse the opinion  of
\nthe  learned  Judges, expressed\t therein.   Our\t conclusion,
\ntherefore, is that the -offence created under s. 5(1)(c)  of
\nthe  Prevention of Corruption Act is distinct  and  separate
\nfrom  the  one under s. 405 of the Indian  Penal  Code\tand,
\ntherefore, there can be no question of s. 5(1)(c)  repealing
\ns.  405\t of  the Indian Penal Code.  If that  is  so,  then,
\narticle 14 of the Constitution can be no bar.
\nThe  last  argument of Mr. Isaacs is that despite  the\tfact
\nthat  the  prosecution is under s. 409 of the  Indian  Penal
\nCode,  still  sanction to prosecute is necessary.   Quite  a
\nlarge body of case law in all the High Courts has held- that
\na  public servant committing criminal breach of\t trust\tdoes
\nnot normally act in his capacity as a public servant, see
\n438<\/span>\n<\/p>\n
(a)  The State v. Pandurang Baburao (supra),\n<\/p>\n
(b) Bhup Narain Saxena v. State (supra),
\n       and\n<\/p>\n
(c) State v. Gulab Singh<\/a>(1).\n<\/p>\n
We  are\t in  agreement with the view  expressed\t by  Hari  )
\nShankar and Randhir Singh JJ. that no sanction is  necessary
\nand  the view expressed by Mulla J. to the contrary  is\t not
\ncorrect.\n<\/p>\n
Criminal Appeal No. 3 of 1955 will accordinly be  dismissed.
\nCriminal  Appeals  Nos. 42 of 1954 and 97 of  1955  will  be
\nheard on merits.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Om Prakash Gupta vs State Of U. P.(With Connected … on 11 January, 1957 Equivalent citations: 1957 AIR 458, 1957 SCR 423 Author: P G Menon Bench: Das, Sudhi Ranjan (Cj), Bhagwati, Natwarlal H., Aiyyar, T.L. Venkatarama, Das, S.K., Menon, P. Govinda PETITIONER: OM PRAKASH GUPTA Vs. RESPONDENT: STATE OF U. […]<\/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":[30],"tags":[],"class_list":["post-76885","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOm Prakash Gupta vs State Of U. P.(With Connected ... on 11 January, 1957 - 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\/om-prakash-gupta-vs-state-of-u-p-with-connected-on-11-january-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Om Prakash Gupta vs State Of U. 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