Punjab-Haryana High Court
The State vs Gurcharan Singh on 5 December, 1950
Equivalent citations: AIR1952P&H89, AIR 1952 PUNJAB 89, 53 PUN LR 198
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-
ployed as a Held Inspector in the office of the Custodian of Evacuees' Probity & it is alleged that while acting in this capacity he misappro priated some evacuees' property over which he had dominion. The casa was first registered as a result of report to the police on 2- 1- 948, & as a result of the investigation by the police Gur-charan Singh was arrested on 31 4 1948, & released on ail on the following day, the 1st of May. The chalan was actually put into the Court of a Magistrate on 23- 7-1948, under Section 409, Penal Code. On 18 8 1948, preliminary objections to the legality of the Court's proceeding with the trial were raised on behalf of the accused.
These objections were primarily based on my decision in Cri. Revn. No. 191 of 1948 decided on 18-7 1948, in which I held that as long as the provisions of Section 5, Prtiveniion of Corruption Act, ACS II (2) of 1947, remained in force, Section 409, Penal Code, so far as it related to offences by public servants, stood repealed.
In effect this decision meant that if a public servant was alleged to have com-mitted an offence which fell either under Section 409, Penal Code, or Section 5 (1) (c) Prevention of Corrup-tion Act, be could only be prosecuted under the latter section, & in tbat case the sanction of the appropriate authority mentioned in Section 6, Prevention of Corruption.
Act, was necessary before any Court could take cognizance of the case. It is not disputed that for the case under Section 409, Penal Code, against Gurcharan Singh no sanc-
tion of any authority had been obtained. The learned trial Magistrate rightly felt that he was bound by this decision, & he also rejected another ground on which it was contended on behalf of the Crown that the case could continue notwithstanding my decision. This contention was that at the time when the Court took cognizance of the case Guroharan Singh was no longer a public servant.
It is in fact not in dispute that he was discharged from Govt. service on 8-5- 19(sic)8. i. e., on a date intervening between the date on which his bail application had been entertained & accepted & the da e on which the actual chalan was presented before the Court. The learned Magistrate, however, was of the opinion that he had taken cognizance of the case on the 1st of May when he applied his mind to the fact a of the case in dealing with the bail application of the accused. He therefore held that the case could not The Mate (Cr R. No. 779 of proceed without the 1950), in which inter alia sanction of the the effect of the Pre appropriate authority vention of Corruption Act mentioned in Section 6 of of 1947 on Section 409. Act 11 [2] of 1947 and he Penal Code, is therefore discharged the involved. accused on 15-11-1948. A
2. The first question revision petition was to be decided is whether filed on behalf of the it was correctly decided Crown in the Court of by me in Criminal Revn. the learned Sss. J., who, No. 191 of 1948 that as by his order dated 13-7- long as Section 6 of Act 1949, held that he was II (2) of 1947 remains in bound by my decision force Section 409 Penal regarding the section Code, pro tanto stands under which proceedings repealed as regards must be taken against the offences alleged to have accused, but at been committed by public the same time, after ser-vauta. This question considering the relevant obviously requires consi authorities, held that deration of the scheme & Gurcharan Singh was no purpose of Act II [2] of longer a public servant 1947, which came into when the trial Court took force on 11-3-1947. It is cognizance of the case & headed "An Act for the that therefore no more effective prevention previous sanction of bribery & corruption" & under Section 6, the opening words of the Prevention of Act itself are "whereas it Corruption Act was is expedient to make more necessary. He accordingly effective provision for forwarded the case to this the prevention of bribery Court with the re- & corruption; it is hereby commendation that the enacted as follows.'' order of the trial Magis Section 1 deals with the trate discharging the short title, extent & accused be set aside, & duration of tho Act, the case remanded to him regarding which it is for proceeding with it sufficient to say that Sub- according to law. When the section (3) pro. vides case came before a learned that Section 5 shall Single Judge for admission remain in force for a ho considered the point period of three years from involved important enough the commencement of the for refer-ence to a Act, & this has now been Division Bench. The case extended by a further has accordingly been heard period of two years.
by us along with four Section 2 merely provides other revision petitions, that Balwant Rai v. The Grown for the purposes of the (or. b. no. 398 of 1949) Act 'public servant" Major T. S. Oill v. The means a public servant as State (Cr R. No. 1073 of defined in Section 21, 1949), Captain Ram Parkash Penal Code. Section 3 v. The Crown (cr. B. No 6 provides that of 1950) & bharah Singh v. notwithstanding anything contained in the Criminal of corruption may fairly P. C. offences punishable be drawn. Section 5
under Section 161 or 165. proceeds to deal with the Penal Code, shall be offence of criminal deemed to be cognizable misconduct in discharge of offences for the pur-poses official duty. The section of the Criminal P C. with reads:
the proviso that without " (1) A an order from a first public servant is Bald to class Magistrate no Police commit the offence of Officer below the rank of criminal misconduct in the Deputy discharge of bis duty:
Superintendent shall
(a) if he either investigate such an habitually accepts or offence or make any arrest obtains or agrees to without a warrant. Section accept or attempts to 4 is more revolutionary, obtain from any person for since without mentioning himself or for any other the Evidence Act person, any gratification specifically it modifies (other than legal certain provisions of this remuneration) as a motive Act by implication, since or reward such as is it provides that whore in mentioned in Section 161, the trial of an offence Penal Code or under Section 161 or 165, (b) if he habitually Penal Code, it is proved accepts or obtains or that an accused person has agrees to accept or accepted or obtained, or attempts to obtain for agreed to accept or himself or for any other attempted to obtain, for person, any valuable thing himself or any other without consideration or person, any gratification for a consideration which other than legal he knows to be inadequate, remuneration or any from any person whom be valuable thing it shall be knows to have been, or to presumed unless the be, or to be likely to be contrary is proved that he concerned in any accepted or obtained, or proceeding or business agreed to accept or transacted or about to be attompted to obtain, that transacted by him or gratification or that having any connection with valuable thing, as the the official functions of case may be, as a motive himself or of any publio or reward such as is servant to whom he is mentioned in the said subordinate, or from any Section 161 or, as the person whom he knows to be case may be, without interested in or related consideration or for a to be person so concerned, consideration which he or knows to be inadequate.
(c) if he dishonestly There is, however, a or fraudulently proviso that the Court may misappropriates or decline to draw such a otherwise converts for his presumption if the gratifi own use any property cation or thing aforesaid entrusted to him or under is in its opinion so his control as a public trivial that no inference servant or allows any other person so to do, or
(d) if ho, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other parson any valuable thing or pecu niary advantage.
2. Any publio servant who commits criminal misconduct in tho discharge of bis duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
3. In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may he proved, & on such proof the Court shall presume, unless the contrary is proved that the accused person is guilty of criminal misconduct in the discharge of his official duty & his conviction therefor shall not be invalid by reason only that it is based solely on such presumption."
3. The next S. No. 6refers to sanction tor prosecution & reads :
"No Court shall take cognizance of an offence punish- able under Section 161 or Section 165, Penal Gode or under Sub-section (2) of Section 6 of this Act, alleged to have been committed by a public servant except with the previous sanction :
(a) in the case of a person who is employed in connection with the affairs of the Federation & is not removable from bis office save by or with the sanction of the Central Govt. or some higher authority, Central Govt.;
(b) in the oase of a person who is employed in connec tion with the afiaira of a Province and is not removable from his office save by or with the sanction of the Provin cial Govt. of some higher authority, Provincial Govt.;
(e) In the case of any other person of the authority competent to remove him from his office." Finally Section 7 provides that any person charged with an offence punishable under Section 161 or 165, Penal Code or under Sub-section (2) of Section 5 of the Act shall be a competent witness for the defence & may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial, & then follow certain safeguards regarding its being optional for the accused to appear as his own witness, & regarding the absence of any presumption against him if he does not choose to appear ag a witness, and the nature of the questions which can be asked from him if he does so.
[d] The effects of the Act may now be summed up as follows :
(I) Public Servants accused of having com mitted offences under Sections 161 & 165, Penal Code, may still be tried on charges under those actual sections, bat even so their trials will be governed by the other changes introduced by the Act regarding the presumptions to be drawn against them, the necessity for the sanction of the appropriate authority under Section 6, & the privilege of the accused to give evidence on oath ag a competent witness if he so desires under Section 7.
(II) Sub-sections (1) & (2) of Section 5 are more or less based on Sections 161 & 165, Penal Code, but create new offences by somewhat enlarging the scope of those sections. Section 5 (1) (d) creates a new offence of obtain-ing favours by abuse of official position. Section 5 (1) (c), with which we ave primarily concerned in this case is for all practical purposes the same as Section 409, Penal Code, so far as it relates to offences by public servants, & it is difficult if not impossible to conceive of any such offence committed by a public servant which would be puniahable under one of these sections & not under the other.
(III) A radical change ia introduced regarding the necessity for previous aanctbn for prosecution. This aspect of the prosecution of public servants was hitherto governed entirely by the provisions of Section 197, Criminal P. C., Sub-section (1) of which reads :
"When any person who is a Judge within the meaning of Section 19, Penal Code, or when any Magistrate, or when any public servant who'is aot removable from his office save by or with the sanction of a Provincial Govt or some higher authority is accused of any offence alleged to have been committed by him while acting or purport-ing to act in the discharge of Ms official duty, no Court shall take cognizannce of such offence except with the previous sanction.
(a) in the case of a person employed in connection with the affairs ot the Federation, of the Governor General exercising his individual judgment. &
(b) in the case of a person employed in connection with the allaira of a Province, of the Governor of that Province exercising his individual judgment."
Thus two major changes have been introduced by the new Act. The first of these is that while under Section 197 the sanction of the Governor-General or the Provincial Governor, as the case may be, was only necessary for the prosecution of public servants who were not removable from their offices save with tho sanction of the Central Govt, or the Provincial Govt. respectively, no such qualification ia contained in Section 6 in which the words used are "committed by a public servant." Thus under the Criminal P. C. no sanction was ever required to prosecute a public servant removable by a leaser authority then the Provinoial or Central Govt. whereas cow the sanction of the appropriate authority is necessary for the prosecution of any public servant however subordinate, allowed to have committed an offence under Section 161 or 165, Penal Code or under Section 6 of the Act. The second change is that introcuced by the omission in Section 6 of the Act of the words appearing in Section 197 "while acting or purporting to act in the discharge of his official duty." This omission appears to be deliberate. & to have been made in consequence of decisions of various High Courts & the Federal Court to tbe effect that an officer who had accepted a bribe or embezzled Government property was neither acting nor pun-porting to act in the discharge of his official duty, & that therefore no sanction for hia prosecution was necessary. The sanction of the appropriate authority is therefore now necessary for the prosecution of any public servant under the Act.
(IV) Another major change is the introduction by Section 7 of the Act of the Privilege of an accused person in a case under s. 161 or 165, Penal Code, or Section 5 of tho Act, to appear as a competent witness and give evidence on oath in disproof of the charges made against him or any other co-accused. So far as I am aware this is the first granting of such privilege to a person on trial for a criminal offence in this country. Thus although neither tho provisions of Section 843 (4), Criminal P. C. which specifically states that no oath shall be administered to the accused; & the latter part of Section 5 of the Oaths Act of 1873. which provides that nothing herein contained shall render it lawful to administer in a criminal proceeding an oath or affirmation to the accused person, are mentioned at all in Section 7, these provisions of law are clearly repealed by Section 7 for tue purpose of trials under the Act, (V) There is also ono important change regarding the sentence for embezzlement by a public servant. The penal Clause Section 5 (2) fixes a maximum sentence of seven years imprisonment or a fine or both, for the offences set out in Section 5(1) (a) (b) (e) & (d), whereas under
Section 409, Penal Code, the words regarding sentence read :
"shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, & shall also be liable to fine."
Thus not only is tbe maximum term of imprisonment under Section 5 (2) for an offence under Section 6 (1) (c) considerably leas than that under Section 409, Penal Code, but also under Section 409, Penal Code, a sentence of imprisonment is mandatory, while under Section 5 (2) the Rent once need only be a fine without any sentence of imprisonment.
5. The question before us is whether in view of these changes introduced by Act II (2) of 1947, particularly regarding the necessity for previous sanction of the appropriate authority for prosecution, the right of the accused to give evidence as a witness & the charge of sentence, it is now open to the authorities concerned, when a public servant is accused of committing aa offence which would be punishable either under a. 409, Penal Cede, or Section 5 (1)(c) of the Act, to choose which of these two sections the offender should be prosecuted under, & by choosing to proceed under s. 409, Penal Code, to dispense with the necessity for any previous sanction in the case of a public servant removable from office by an authority subordinate to the Provincial or Central Govt., & also to deny him the privilege of giving evidence on oath aa a competent witness on his own behalf. Prima facie, it would appear to be unlikely that this was the intention of the Legislature when it passed Act II [2] of 1947, the avowed object of which was to deal more effectively wtth bribery & corruption of public servants, for which purpose the prevalent forms of these offences were collected into a single Act & what was thought to be a more effective procedure for trying offences of this bind was introduced. The general impression that Section S (1) (c) was intended to supersede Section 409, Penal Code, for offences of this type committed by public servants is greatly strengthened by the fact that the Act specifically providesfor the trial of offences under Sections 161 & 165, Penal Code, with the procedural changes introduced by the Act, whereas Section 409, Penal Code, is nowhere mentioned in the Act. On behalf of the State reliance was chiefly placed, as it was before me in tbe previous case, on the provisions of Section 26, General Clauses Act, which reads :
"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted & punished tinder either or any of those enactments, bat shall not be liable to be punished twice for the dame offence "
If this section is taken by itself, then clearly a public servant who has committed an offence falling either under Section 409 or Section 5 (1) (c) of the Act can be tried on a charge under either of these sections. & the only limitation is that he cannot be convicted & sentenced for the same offence under both of them. Clearly, there would be no difficulty whatever in accepting the position of the State in tbe matter if Act II [2] of 1947 simply made an offence already punishable under Section 409, Penal Code, punishable also under Section Section (1) (c) & went no further. There are, however, the three important changes regarding sanction, the right of the accused to give evidence on oath and the change in the quantum & nature of tbe sentence to be taken into consideration and they certainly complicate the question.
6. There is no doubt, as was contended by Mr. Bishan Narain on behalf of the State that as a matter of general principle repeal by implication is not favoured. There are, however, obviously exceptions to this general principle. Such a case arose when a Full Bench consisting of seven Judges of the Lahore High Court considered the inconsistent provisions of Section 162, Criminal P. C. & Section 27, Evidence Act, both of which were fundamental acts of long stand, ing, regarding tbe admissibility of statements made by accused persons in Police custody & it was held by the whole Court, the decision being reported in Hakam Khuda v. Emperor, A.I.R, (37) 1940 Lah iss, that Section 162, Criminal P. C., the later Act, repealed Section 27, Evidence Act. This decision was not reversed by ary higher Court. & as a matter of fact Section 163, Criminal P C., was subsequently amended so as to leave the provisions of Section 27. Evidence Act, intact. In spite of the fast that nearly two & a half years have elapsed since my earlier decision on the point in dispute, there dees not appear to be any decision of any of tbe High Courts in India, or the Federal Court or the Supreme Court, in which the same point has been considered, & in my opinion the most relevant authorities are still the passages from Craies on Statute Law, & Maxwell on the Interpretation of Statutes on which my earlier decision was mainly based. The first of these passages from Craies, p. 314, reads as follows:
"In R. v. Judge of Essex County Court, (1887) 18 Q. B. D. 704 Esher M. R. laid it down aa an ordinary rule of contruction that where the Legislature has passed a new statute giving a new remedy, that remedy alone can be followed. But the phrase 'new' as applied to a statute is either needless or ambiguous. The old distinction between 'velara' & 'nova slatula' is obso etc; & the word 'new' is insensible unless applied to statutes creating rights or readies unknown to the common law or to previous enactments. And for modern use the rule could perhaps be more accurately laid down thus. In the case of an Act which crtates a new jurisdiction, a new procedure, new forms or new remedies tha procedure & no others, must be followed until altered by subsequent legislation."
The following passage is also from Craies, p. 315 "In Middleton v. Crofts, (1786) 2 Atk. 650, Lord Hardwicke said : 'Sobsequent Acts of Parliament in the affirmative giving new penalties & institution new modes of proceeding, do not repeal former methods & penalties ordained by preceding Acts without negative words." "if, however," as Lord Campbell said in Mitchell v. Brown (1859) 28 L. 3 M. O. 53, "a later statute again describes an offence which had been previously created by a former statute & affixes a different punishment to it & varies the procedure, or if the later enactment expressly altered the quality of the offence aa by making it a misdemeanour instead of a felony or a felony instead of a misdemeanour, tie later enactment must be taken as operating by say of substitution & not cumulatlvely." The next passage ia from p. 195 of Maxwell :
"Indeed, it has been laid down generally, that if a later statute again describes an offence created by a former one & affixes a different punishment to it. vary-ing the procedure --giving, for instance, nn appeal where there was no appeal before--the earlier statute ia im-pllediy repealed by it."
7. As against these passages of undoubted weight, the only fresh argument which Mr. Bishan Naram was able to advance was that the cases on which they were based were prior to the enactment of the English Interpretation Act of 1889 which in some respects ia similar to the Indian General Clauses Act. Section 33 of thia Act reads :
Where an act or omission constitutes an offence under two or more Acts or both under an Act and at common law, whether any such Act was passed before or after the commencement of this Act, the offender shall, unless the contrary intention appears, be liable to bo prosecuted & punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence."
In essence this section is the same as Section 26, General Clauses Act, the only change of any importance being the introduction of the words in the English Act "unless the contrary intention appears" which do not appear in the Indian Act. I do not, however, consider the fact that the cases relied on by Craies & Maxwell were prior to the Act of 1889, or the difference in the wording of Section 33 of tbe Act & S 16, General Clauses Act, really have much effect on the argument, or on the principles set forth by Craiea & Max well which are obviously fundamental principles governing the interpretation of statutes. I do not consider that the ternn of Section 26, General Clauses Act, broad aa they are, prealude the possibility of repeal by implication & in order to decide the point it is again necessary to consider the pro-visions of Act II [2] of 1947. There ia no doubt whatever that thia Act dues repeal by implication certain other provisions in existing statutes. As I have already pointed out, Section 7 repeals by impli-ca ion, without mentioning them, certain provi-aions in Section 342 of the Criminal P. C. & Section (sic) Oaths Act. The presumptions raised in Section 4 & Section 6 (sic) also modify, & to that extent repeal certain provisions of the Evidence Act without mentioning this Act. The only provisions in the Act which expressly repeal or modify provisions of other statutes are those by which offenaeg tinker ss. 161 & 165, Penal Code, are made cognizable offences, & those by which investigation or arrest without a warrant are taken away from Police Officers under the rank of Deputy Superintendent of Police, theae being only minor changes. The major amendments to existing statutes in the Act are all only by implication, & it is therefore not difficult to come to the conclusion of an offence under Section 409, Penal Code, by a public servant in Section 6 (1) (c) also intended to supersede Section 409, Penal Code, so far as is concerns public servants by Section 5 (1) (c), & to apply the procedural & other changes contained in the Act to public servants who committed offences punishable previously under Section 409, Penal Code. To hold other. wise woutd lead to an anomalous situation & I must confess tbat I am unable to understand the attitude of the State in wishing still to have the liberty to proceed againat public servants under Section 408, Penal Code, & thereby deny them the benefits of Act II [2] of 1947 including the right to appear as witnesses the necessity of sanction for their prosecution, & the possibility not only of receiving a lesser maximum sentence of imprisonment, but also of not being sentenced to any imprisonment at all on conviction.
I would therefore adhere to my previous decision & hold again that as long as Section 6 of Act II [2] of 1947 remains in force the provisions of Section 409, Penal Code, so far as they concern offences by public servants are pro tanto repealed by Section 5 (1) (c) of Act II [2] of 1947.
8. The other question for consideration is the effect of the fact that Gurcharan Singh respon-dent had been removed from public service before the chalan in the case against him was put into Court. This question falls into two parts, the first being whether the word 'is' in the phrase 'is employed' which is used both in Section 197, Criminal P C. & in Sub-section (a) A&(b) of Section 6 of Act II [2] of 1947 refers to the date on which the alleged offence was committid, or to the date on which the Court takes cognizance of the case, & the second being whether in the present case the Court took cognizance of the case on the date on which the chalan was presented before it, or on the date on which immediately following his arrest; the accused applied for & was granted bail. There is no doubt that on the first of these points the weight of authority is very heavily on the side of the State. There are two decisions reported as Sugan Chand v. Narain Das, A. I. R. (19) 193(sic) Sind 177 and In re Section 7. Patil. A. I. R. (24) 1937 Nag. 293 in which the Courts took the view that the word 'is' in Section 19(sic), Criminal P. C. referred to the time of the commission of the alleged offence, & not to the date on which the Court took cognizance of the case but these views have been dissented from in Suraj Narain v. Emperor, a. I B. (25) 1938 ALL. 613; Prasad Chandra v. Emperor, A. I. R. (30) 943 cal. 527 & Empe-ror v. P. A. Joshi, A. I R. (35) 1918 Bom, 248. There are as yet apparently no decided cases under Section 6 of Act II (2) of 1947; but both in Section 197, Criminal P C., & in this section the relevant words are similar. The essendal part of Section 197 reads:
or when any public servant who ia not removable from his office .... is accused of any offence ..... no Court shall take cognizance of such offence".
& the relevant words of Section 6 are:
'No Court shall take cognizance of an offence alleged to have been committed by a public servant, except with the previous sanction .... in the case of a person who is employed:
In view of this form of wording in the two sections clearly the same principles would apply to them in this matter. The views of the Calcutta and Bombay High Courts were that without any doubt the protection afforded by Section 197, Criminal P. C. was only intended to be enjoyed by Judges, Magistrates & other public servants while still in office, and that no sanction was necessary for the prosecution of a Govt. servant who had already been discharged from service before the case was brought against him, & I entirely agree with this interpretation.
9. Finally there is the question whether the trial Court could be said to have taken cognizance of the case merely by entertaining the respondent's bail application while he was still a public servant a week before he was discharged from service. In my opinion the view of the learned Ses. J. on this point was correct. It is not clear how the respondent's bail application came to he filed in the Court of this particular Magistrate, but it is suggested that the reason was that the learned Magistrate was a Special Magistrate dealing generally with cases of this type. It is, however, quite clear that at the time the bail application was filed and accepted by him the investigation was still far from complete, and that at a later stage either the case might be withdrawn, or it might go to the Court of some other Magistrate. Admittedly the meaning of the phrase "taking cognizance" has not been precisely defined in the Code of Criminal Procedure, but, as the learned Sessions Judge has pointed out, bail applications are frequently considered both by Ses. J. & by the High Court during the preliminary stages of cases and yet Section 193, Criminal P. C. provides that no Sessions Court shall take cognizance of any offence as a Court of original juris diction unless the accused has been duly committed, and Section 194 provides for the circumstances under which a High Court may take cognizance of any offence. From this it can be deduced that the term 'taking cognizance' has no connection with entertaining a bail application while a case is still at the stage of a Police Investigation. Moreover many bail applications are dealt with by so-called "duty"
Magistrates, in whose case it is merely a coincidence if they subsequently have to deal with. Particular cases in which they have already dealt with bail application in their capacity as duty Magistrates. I therefore agree with the view that dealing with a bail application is something quite separate & distinct from taking cognizance of a case.
10. The net result is that while the case against the respondent must proceed against him under Section 5 (1) (c) of Act II (2) of 1947, the case can proceed without any sanction as provided in Section 6 of the Act. I would accordingly accept the recommendation of the learned Ses. J. & set aside the order ot the trial Court discharging the accused and remand the case to it for trial according to law. The other revision petitions which were put up for hearing along with this may now be returned for hearing by single Judges & decision on the various points involved in the light of the decision on the first point decided above.
11. Khosla, J.
I agree.
Case remanded.