# Mohammad Ghow1 v. Stat• of A11dhra V tnkatarama

- **Citation:** [1957] 1 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 1954-12-23
- **Case number:** Criminal Appeals No. 42 of 1954
- **Bench:** S. R. DAS c. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-ghow1-v-stat-of-a11dhra-v-tnkatarama-1349
- **Pages:** 16

## Headnote

BHAGWATI,
VENKATARAMA
AYYAR,
S. K. DAs and GovINDA MENON JJ.)
Implied repeal-Whether s. 409 of the Indian Penal Code is impliedly repealed by s. 5(J)(c) of the Prevention of Corruption Act,
1947 (II of 1947)-Whether the application of s. 409 of the Indian
Penal Code to a public servant infringes Art. 14 of the ConstitutionSanction-Whethei· sanction under s. 6 of the Prevention of Corruption Act necessary for prnsecution under s. 409 of the Indian Penal
Code.
The offences under s. 409 of the Indian Penal Code ands. 5(1)(c)
of
the
Prevention
of
Corruption Act,
1947
are distinct
and
separate, and there is no question of s. 5(1)(c) of the Prevention of
Corruption Act, 1947 repealing s. 409 of the Indian Penal Code.
Amarendra Nath Roy v. The State, A.LR. [1955]
Cal. 236,
:;ipproved.
The legislature would not have intended in the normal course
of things, that a temporary statute like the Prevention of Corruption Act, 1947, should supersede an enactment of antiquity
like
the Indian Penal Code.
In the view that the two offences under s. 409 of the Indian
Penal Code and s. S(l)(c) of the Prevention of Corruption Act are
distinct and
separate
there is no infringement of Art. 14 of the
1956
Mohammad Ghow1
v.
Stat• of A11dhra
V tnkatarama
Ayyar J.
1957
January, 11.
1957
Om Prakash Gupta
v.
State of U. P.
424
SUPREME COURT REPORTS
(1957]
•
Constitution in the application of s. 409 of the Indian Penal Code
to a public servant.
Sanction under s. 6 of the Prevention of Corruption
~o\ct, 1947
is
not
necessary
for a prosecution
under s. 409 of the Indian
Penal Code.
State v. Pandurang Baburao A.R.I.
(1955) Born. 451,
Bhup
Narain Saxena v. State, A. I. R. (1952) All. 35 and State v. Guiab
Singh, A.LR. (1954) Raj. 211, approved.
State v. Gurcharan Singh, (1952) Punj. 89, overruled.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeals No. 42 of 1954 and Nos. 3 and 97 of 1955.
Appeal by special leave from the judgment and
order dated July 7, 1953, of the Allahabad High Court
in Criminal Revision No. 1113 of 1953 arising out of
the judgmem and order dated June 24, 1953, of the
· Court of Sessions Judge, Kumaun, in Criminal Appeal
No. 42 of 1953 (N). Appeal under Article 134(1) (c) of
the Constitution from the judgment and order dated
December 23,
1954, of the Allahabad High Court
(Lucknow Bench) in Criminal Revision No. 141 of 1951
and Criminal Miscellaneous Applications Nos. 454 of
1952 and 159 of 1953 arising out of the judgment and
order dated June 4, 1951, of the Civil and Sessions
Judge, Sitapur in Criminal Revision No. 5 of 1951.
Appeal by special leave from the judgment and order
dated January 16, 1952, of the Judicial Commissioner's
Court, Vindhya Pradesh, Rewa, in Criminal Revision
No. 216 of 1951 arising out of the judgment and order
dated September 29,
1951, of the Court of Sessions
Judge at Rewa in Criminal Appeal No. 14 of 1951.
S. C. Isaacs and P. C. Agtt1'wala, for the appellant in
Criminal Appeal No. 42 of 1954.
S. C. Isaacs and 0. N. Srivastava, for the appellant
in Criminal Appeal No. 3 of 1953.
S. C. Isaacs, f. B. Dadachanii, S. N. Andley and
Rameshwar Nath, for the appellant in Criminal Appeal
No. 97 of 1955.
G. C. Mathur and C. P. Lal, for the respondent in
Criminal Appeals Nos. 42 of 1954 and 3 of 1955.
S.C.R.
SUPREME COURT REPORTS
425
Porus A. Mehta an<l R. H. Dhebar, for the respondent
in Criminal Appeal No. 97 of 1955.
1957. January 11.
The Judgment of the Court was
delivered by
GovrNDA
MENON J.- Though these three appeals
have been filed against the decisions of different courts
and arc not connected either as regards community of
purpose or the identity of the accused they have been
heanl together, because the points of law raised in
them are identical and the arguments of counsel have
proceeded on common lines. Hence a common judgment
dealing with the legal aspect would be apt in the
circumstances.
Criminal Appeal No. 42 of 1954 has been preferred
by Om Prakash Gupta against the dismissal of his
Revision Petition by the Hig

## Text

S.C.R.
SUPREME COURT REPORTS
423
It was lastly contended for the appellant tliat even
.if the High Court could hold a preliminary enquiry
into the conduct of a judicial officer, it had no jurisdiction to decide the matter finally, that the findings
given by Balakrishna Ayyar J. should not be held to
conclude the question against the appellant, and that
the Government was bound to hold a fresh enquiry
and decide for itself whether the charges were wellfounded. No such question was raised in the petition
or in the High Court, and we must, therefore, decline
to entertain it.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
OM PRAKASH GUPTA
v.
STATE of U. P.
(with connected appeals)
(S. R.
DAS c. J.,
BHAGWATI,
VENKATARAMA
AYYAR,
S. K. DAs and GovINDA MENON JJ.)
Implied repeal-Whether s. 409 of the Indian Penal Code is impliedly repealed by s. 5(J)(c) of the Prevention of Corruption Act,
1947 (II of 1947)-Whether the application of s. 409 of the Indian
Penal Code to a public servant infringes Art. 14 of the ConstitutionSanction-Whethei· sanction under s. 6 of the Prevention of Corruption Act necessary for prnsecution under s. 409 of the Indian Penal
Code.
The offences under s. 409 of the Indian Penal Code ands. 5(1)(c)
of
the
Prevention
of
Corruption Act,
1947
are distinct
and
separate, and there is no question of s. 5(1)(c) of the Prevention of
Corruption Act, 1947 repealing s. 409 of the Indian Penal Code.
Amarendra Nath Roy v. The State, A.LR. [1955]
Cal. 236,
:;ipproved.
The legislature would not have intended in the normal course
of things, that a temporary statute like the Prevention of Corruption Act, 1947, should supersede an enactment of antiquity
like
the Indian Penal Code.
In the view that the two offences under s. 409 of the Indian
Penal Code and s. S(l)(c) of the Prevention of Corruption Act are
distinct and
separate
there is no infringement of Art. 14 of the
1956
Mohammad Ghow1
v.
Stat• of A11dhra
V tnkatarama
Ayyar J.
1957
January, 11.
1957
Om Prakash Gupta
v.
State of U. P.
424
SUPREME COURT REPORTS
(1957]
•
Constitution in the application of s. 409 of the Indian Penal Code
to a public servant.
Sanction under s. 6 of the Prevention of Corruption
~o\ct, 1947
is
not
necessary
for a prosecution
under s. 409 of the Indian
Penal Code.
State v. Pandurang Baburao A.R.I.
(1955) Born. 451,
Bhup
Narain Saxena v. State, A. I. R. (1952) All. 35 and State v. Guiab
Singh, A.LR. (1954) Raj. 211, approved.
State v. Gurcharan Singh, (1952) Punj. 89, overruled.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeals No. 42 of 1954 and Nos. 3 and 97 of 1955.
Appeal by special leave from the judgment and
order dated July 7, 1953, of the Allahabad High Court
in Criminal Revision No. 1113 of 1953 arising out of
the judgmem and order dated June 24, 1953, of the
· Court of Sessions Judge, Kumaun, in Criminal Appeal
No. 42 of 1953 (N). Appeal under Article 134(1) (c) of
the Constitution from the judgment and order dated
December 23,
1954, of the Allahabad High Court
(Lucknow Bench) in Criminal Revision No. 141 of 1951
and Criminal Miscellaneous Applications Nos. 454 of
1952 and 159 of 1953 arising out of the judgment and
order dated June 4, 1951, of the Civil and Sessions
Judge, Sitapur in Criminal Revision No. 5 of 1951.
Appeal by special leave from the judgment and order
dated January 16, 1952, of the Judicial Commissioner's
Court, Vindhya Pradesh, Rewa, in Criminal Revision
No. 216 of 1951 arising out of the judgment and order
dated September 29,
1951, of the Court of Sessions
Judge at Rewa in Criminal Appeal No. 14 of 1951.
S. C. Isaacs and P. C. Agtt1'wala, for the appellant in
Criminal Appeal No. 42 of 1954.
S. C. Isaacs and 0. N. Srivastava, for the appellant
in Criminal Appeal No. 3 of 1953.
S. C. Isaacs, f. B. Dadachanii, S. N. Andley and
Rameshwar Nath, for the appellant in Criminal Appeal
No. 97 of 1955.
G. C. Mathur and C. P. Lal, for the respondent in
Criminal Appeals Nos. 42 of 1954 and 3 of 1955.
S.C.R.
SUPREME COURT REPORTS
425
Porus A. Mehta an<l R. H. Dhebar, for the respondent
in Criminal Appeal No. 97 of 1955.
1957. January 11.
The Judgment of the Court was
delivered by
GovrNDA
MENON J.- Though these three appeals
have been filed against the decisions of different courts
and arc not connected either as regards community of
purpose or the identity of the accused they have been
heanl together, because the points of law raised in
them are identical and the arguments of counsel have
proceeded on common lines. Hence a common judgment
dealing with the legal aspect would be apt in the
circumstances.
Criminal Appeal No. 42 of 1954 has been preferred
by Om Prakash Gupta against the dismissal of his
Revision Petition by the High Court of Aliahabad,
thereby affirming the appellate decision of the Sessions
Judge of Kumaun who in his turn maintained the
sentence of rigorous imprisonment for one year and a
fine of Rs. 500 passed on the appellant by the Special
1st
Class Magistrate of Nainital on April 30, 1953,
under s. 409 of the Indian Penal Code.
This appellant
was a clerk in the Electric Department of Haldwani
Municipal Board and the charge against him was that
he received three sums of money :
Rs. 24215/9 (Ex. P. 14) on July 28, 1951,
Rs. 70/-
(Ex. P. 17) on October 19, 1951,
Rs. 135/-
(Ex. P. 13) on October 23, 1951.
aggregating to Rs. 447 /5/9 and
misappropriated the
whole amount, though his defence was that having
received the money, he gave it to his official superior,
Electrical Engineer Pandy ; and did
not have anything more to do with the money.
The Police charge
sheet was under ss. 409 and 467 of the Indian Penal
Code, but the conviction was only under the former
section. The
conviction and sentence
imposed upon
him by the trial court having been confirmed in appeal
by
the learned Sessions
Judge and further having
been affirmed by dismissal of his revision by the High
Court of Allahabad, have now become the subject of
1957
Om Prakash Gupta
v.
State of U. P,.
1957
Om Prakash Gupta
v.
Stat1 of U. P.
Govinda Menon J.
426
SUPREME COURT REPORTS
[1957]
appeal, as special leave has been granted on the question of law raised.
Om Prakash, the appellant in Criminal Appeal
No. 3 of 1955, had obtained leave to appeal from the
High Court of Allahabad against the opinion of a Full
Bench of that court in Criminal Revision No. 141 of
1951, by which it affirmed the order of the Civil and
Sessions Judge of Sitapur in Criminal Revision No. 5
of
1951, holding that Om Prakash was improperly
discharged
by
the
learned Magistrate of an offence
under s. 409, Indian Penal Code, and directing the
Magistrate to make a further inquiry into the matter
of that offence. It may be mentioned that the learned
1st Class Magistrate held that sanction was essential
for the prosecution of Om Prakash and as the same
had
not been
granted, the prosecution was
not
maintainable. This
view
did
not find acceptance at
the hands of the learned Sessions Judge, whose decision
was affirmed by the High Court of Allahabad. The
charge against him was that as a canal accountant in
a Divisional Engineer's office he committed criminal
breach of trust of a certain sum of money.
Lal Ramagovind Singh, the appellant in Criminal
Appeal No. 97 of 1955, was the Director of Agriculture
in the Indian State of Rewa and for the offence of
having
committed
criminal
breach
of trust of
an
amount of Rs. 586/10/- on December 4, 1948, he was
prosecuted under s. 409 of the Indian Penal Code, on
August 13, 1949,
and
after
inquiry,
charges
were
framed against him on February 24, 1950, resulting in
a judgment of conviction by the trial court on September 29, 1950, and a sentence of one year's rigorous
imprisonment and a fine of Rs. 500.
His appeal to
the
Sessions
Judge was dismissed on September 29,
1951, and the revision to the Judicial Commissioner
shared the same fate on January
16,
1952.
Special
leave haviFlg been granted to him, Criminal Appeal
No. 97 of 1955 was the outcome.
The first question for consideration is whether
s. 409 of the Indian Penal Code, in so far as it applies
to a public servant
(in this case the three appellants
were admittedly public servants), has been impliedly
S.C.R.
SUPREME COURT REPORTS
repealed by the enactment of ss. 5(1) (c) and 5(2)
of
the Prevention of Corruption Act II of 1947, and if
that is so, whether a prosecution of the appellants for
an offence of criminal breach of trust without the
requisite sanction and without conforming to the provisions of the Prevention of Corruption Act, can be
legally sustained.
Two other questions have also been
urged before us and they are: Assuming that there
was no such implied repeal, would the application of
s. 409 of the Indian Penal Code to a public servant
infringe Art. 14 of the Constitution, now that the
provisions of the Prevention of Corruption Act and the
procedure laid down thereunder are available to deal
with a breach of trust by a public servant ; and next,
if the appellants do not succeed on the first two points,
whether
the provision for sanction required by the
Prevention of Corruption Act would also similarly apply
to a prosecution under s. 409 of the Indian Penal Code.
What is first to be determined is whether s. 409 of
the Indian Penal · Code, deals with the same offence
as that contemplated under ss. 5(1) (c) and 5(2) of the
Prevention of Corruption Act, and if so, has there
been an overlapping of legislation over the same field ;
and has the latter one impliedly repealed the earlier.
For that
purpose the provisions of the two statutes
have to be succinctly analysed to understand the full
scope and the impon of the two.
The fasciculus
of
sections contained
in Chapter
XVII of · the Indian Penal Code beginning with s. 405
of the Indian Penal Code and ending with section
409 of
the
Indian Penal Code deals with criminal
breach of trust.
Section
405 of the Indian Penal
Code defines criminal breach of trust and s. 409 of the
Indian Penal Code is an aggravated form of criminal
breach of trust when the same is committed by a public servant, banker, merchant, etc.
Analysing s. 405
of the Indian Penal Code, into its component ingredients, it is
seen that the following essential ingredients are absolutely necessary to attract the operation of the section :
(i) The accused must be entrusted with property
or do'1tinion over property ;
1957
Om Prakash Gulf•
...
Slate of U. P.
Gooinrfa Menon J.
1957
Om Prakash Gupta
v.
,Statt of U. P.
Govinda Menon J.
428
SUPREME COURT REPORTS
[1957]
. (ii) T~e person so entrusted must (a) dishonestly
misappropnate or convert to his own use that property, or
. (b) dishonestly use or dispose of that property or
wilfully suffer any other person to do so in violation
(I) of any direction of law prescribing the mode
in which such trust is to be discharged, or
(II) of any legal contract made touching the discharge of such trust.
In the above cases he is said to commit a criminal
breach of trust.
Section 409 of the Indian Penal Code lays down the
punishment when such criminal breach of trust is
committed
by
a public-servant, banker, merchant, etc.
Now we have to ascertain the provisions of the
Prevention of Corruption Act dealing with criminal
misconduct.
The preamble of the Act makes it clear that the
intention was to make more effective prov1s1ons for
the prevention of bribery and corruption.
From this
itself, it is clear that the legislature was alive to the
fact that something more stringent and drastic than
s. 409 of the Indian Penal Code was necessary in the
case of bribery and corruption by public servants and it
was to effectuate that intention that the Act was put on
the statute book. The duration of his piece of legislation
in the first instance was only for a period of live years
which later on was extended by Act II of 1952 for ten
years which would mean that automatically the Act
would expire by about the middle of 1957.
Section 3 lays down that offences under ss. 161, 165
and 165-A of the Indian Penal Code which under the
provisions of the Criminal Procedure Code were not
cognizable are made
cognizable.
Section 5 enacts
that where a public servant accepts, agrees
to or
obtains gratification
other than legal
remuneration,
then it shall
be
presumed unless
the contrary is
proved .. that he accepted, obtained or agreed to accept
or attempted to obtain that gratification or valuable
thing as a motive or reward such as is mentioned in
section 161, etc., etc. Sub-section 2 of s. 4 also deals
•
S.C.R.
SUPREME COURT REPORTS
429
with this presumption.
We are concerned in these
appeals with s. 5. Sub-sections 1 (a) and 1 (b) of s. 5,
which is designated as criminal misconduct in discharge
of official duty by a public servant, deal with persons
who
habitually accept or obtain or agree to· obtain
gratification other than legal remuneration as a motive
or reward as mentioned in s. 161 of the Indian Penal
Code. It is not necessary to deal with these two subclauses in detail because there is no question of any
acceptance of illegal gratification in the present cases
but one thing that has to be remembered is that these
sub-sections
deal
with
habitual acceptance or obtaining, etc., whereas ss. 161 and 165 deal with even a
single
acceptance
or obtaining. The result is
that
under ss. 161 and 165 of the Indian Penal Code a
prosecution can be laid even in the case of a single act
by
which a public servant has accepted an illegal
gratification, but in order to attract els. 5 ( 1) (a) and
5(1)(b), there
must be habitual commission
of the
crime.
Any stray or a
single
instance
would
not
suffice to bring within the ambit of the section the
offence as contemplated in ss.' 5(1) (a) and 5 (1) (b).
The result is that the offences under ss. 5 ( 1) (a) and
5 ( 1) (b) are an aggravated form of the offence under
ss. 161 and 165 of the Indian Penal Code.
As we are concerned with s. 5 ( 1) ( c), the sami;_ may
be quoted in extenso :
"If he dishonestly or
fraudulently misappropriates
or otherwise converts for his own use any
property
entrusted to him or under his control as a public
servant or allows any other person so to do."
Section 5 ( 1) ( d) lays down that if a public servant
by corrupt or illegal means or by otherwise abusing
his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary
advantage, he commits the offence.
Section 5(2) makes the offence of criminal
misconduct punishable with imprisonment which may extend
to seven years or with fine or with both.
Sub-section
(3) is an important piece of legislation to the effect
that where a person is charged under s. 5 ( 1) and it is
found
that
the
accused person cannot satisfactorily
1957
Om Prakash Gupta
v.
State of U.P.
Go•inda Menon ].
1957
Om Pr""ash Gupta
..
S1a1, of U. P.
Govind11 Merwn J.
430
SUPREME COURT REPORTS
(1957]
account for the pecuniary resources or property disproportionate to his knowr, sources of income, then
the fact that he has such extensive pecuniary resources
or property is sufficient to presume, until the contrary
is proved, that the accused person was guilty of criminal misconduct in the discharge of his official duty
and a conviction for that offence shall not be invalid
by
reason
only that it is based solely on such
presumption.
It
is
clear,
therefore,
that where a
person
is charge with criminal misconduct and it is
seen that he is in possession of property or income
which could not have been amassed or earned by
the
official remuneration which he had obtained, then the
court is entitled to come to the conclusion that the
amassing of such
wealth was
due
to
bribery or
corruption
and
the person is guilty of an offence of
criminal misconduct.
Such a
presumption cannot be
drawn in the case of a prosecution under ss. 161, 165
and 409 of the Indian Penal Code.
Section 6 provides that for the prosecution of an
offence of criminal misconduct under s. 5(2) or for an
offence under s. 161 or 165 of the Indian Penal Code,
previous sanction is necessary of either the Central
Government or the State Government or the autho
rity competent to
remove the Government servant ..
The .. fast section of the statute is a departure or deviation from the procedure till then obtaining in a criminal
case and thereby an accused person is held
competent to be a witness on his behalf. Whereas
under s. 342, Indian Penal Code, as it stood before the
recent amendment, no accused person was entitled to
be administered on oath and thereby competent to
testify in a court of law in a case in which he is
accused ; under s. 7 any person charged with an
offence
punishable under s. 161 or s. 165 or 165-A
of the Indian Penal Code, or under sub-s. (2) of s. 5
of the Prevention of Corruption Act, is a competent
witness for the defence and may give
evidence
on
oath in disproof of the charges made against him or
any
person charged together with him at the same
trial ; and there are also certain safeguards provided
in the matter of giving such testimony.
•
S.C.R.
SUPREME COURT REPORTS
431
We have now referred to the relevant provision of
Act II of 1947 in which the most important one for
our present consideration is s. 5 ( 1) ( c). It will be useful to
institute a comparison between s. 405 of the
Indian Penal Code and s. 5(1)(c) of Act II of 1947.
The question of entrustment is common under s. 405
of the Indian Penal Code and under s. 5 ( 1) ( c) of the
Prevention of Corruption Act.
Whereas under section
405 of the Indian Penal, Code dishonest misappropriation or conversion to his own use of that property
would
be
the
necessary
criterion,
with
regard
to
s. 5 ( 1 )( c) the misappropriation or conversion may be
either dishonestly or fraudulently or otherwise.
Then again there is a further fact under s. 5(1) (d)
that if the public servant by corrupt or illegal means
or otherwise abuses his position as a public
servant
and obtains for himself or for any other person any
valuable thing or pecuniary advantage, then he will
be
guilty of the offence. We may,
therefore, give
below the ingredients of the two sections :-
Section 405 of the Indian Penal Code.
1. Entrusting any
person with property or with
any dominion over property.
2. The person entrusted
(a) dishonestly
misappropriating
or
converting to his own use that property.
(b) dishonestly
using
or
disposing
of that
property or wilfully suffering any other per.son to do
so in violation-
( i) of
any
direction
of
law prescribing the
mode in which such trust is to be discharged, or
(ii) of
any legal contract made touching the
discharge of such trust.
Prevention of Corruption Act II of 1947 : Section 5(1) :
( c) dishonestly
or
fraudulently
misappropriating or otherwise converting for his own use any
property entrusted
to him, or under his control as a
public
servant
or
allowing any other person to
do so.
( d) If he
by corrupt or illegal means or by
otherwise
abusin~ his
position as
a public
servant,
1957
Om Prakash Gu"a
v.
,Sl~le of U. P.
Govinda Menon J.
1957
Om Prakash c;upta
v.
State of U. P.
.Govinda }Jenon J.
432
SUPREME COURT REPORTS
[1957]
obtains for himself or for any other person any
valuable thing or pecuniary advantage.
Now 'dishonestly' as defined in s. 24 of the Indian
Penal Code connotes the doing of anything with the
intention of causing wrongful gain to one person or
wrongful loss to another person and s. 25 defines 'fraudulently' as doing a thing with intent to defraud but not
otherwise. It is, therefore, clear that s. 5( 1) ( c) is wider
in ambit than section 405 of the Indian Penal Code.
The argument of the learned counsel for the appellants is that though the offences under the two provisions
are indetical, there are some advantages where
the trial is under s. 5(1) (c) and certain disadvantages
as well. The advantages are :-
( 1) The
punishment
for
criminal
mis-conduct
is
less than the punishment for breach of trust by a
public servant ;
(2) It is
necessary to obtain previous sanction for
a prosecution under s. 5 (l)(c), whereas in the case of
breach of trust by a public servant, such sanction may
or may not be necessary ;
.
(3) The investigation of an offence under s. 5(l)(c)
should ·be by an officer of a higher grade though that
does not obtain so far as the present appeals are
concerned;
and
( 4) The accused person has the right of giving
evidence on his behalf.
The disadvantages are that in such a trial the
presumption referred to in s. 4(3) can be drawn against
the accused if it is found that he has pecuniary resources
or property disproportionate to his known sources of
income and also the two presumptions regarding the
acceptance of a valuable thing from any person by a
public servant as contemplated in sub-ss. (1) and (2) of
s.
4.
These
differences, according to the learned
counsel for the appellant, do not in any way make the
offence under s. 5 ( 1) ( c) different from the offence under
s. 409 of the Indian Penal Code, but that only another
method of procedure is prescribed and a different mode
of approach is laid down when an offence under s. 5(l)(c)
is enquired into or tried.
S.C.R.
SUPREME COURT REPORTS
433
Mr. Isaacs strenuously urges that if there are two
different statutes, one enacted later than the other, and
if the later statute deals with the same subject matter,
the two cannot stand together and the earlier one being
redundant or repugnant must be deemed to have been
repealed.
The result is that whereas in this case there
are penal statutes dealing with the same subject matter
and the
penalties and procedure prescribed by
the
statute~ ' are different from each other, then the later
one must be taken to repeal or supersede the earlier.
Reliance is placed on certain observations contained
in Za11erbhai
Amaidas v. The State of Bombay( )
containing some
quotations
from the
judgment
of
Goddard J. in Smith v. Benabo(2) to the following
effect :-"That if a later statute again
describes
an
offence created by a previous one, and imposes a
different punishment,
or
varies
the
procedure,
the
earlier
statute is
repealed
by the
later statute : see
Michell v. Brown (3),
per
Lord
Campbell and also
Attorney-General for Ontario v. Attorney-General for
the Dominion(').
On the footing that s. 5 ( 1) ( c) of Act II of 1947 deals
with the same subject with regard
to
public servants
as that
portion of s. 409 of the
Indian Penal Code,
Mr.
Isaacs. drew our
attention
to The State v.
Gurcharan Singh(5).
In that case Falshaw J. in delivering the judgment of a Bench consisting of himself
and Khosla J. held that so long as s. 5 of Act II of 1947
remained in force, the provisions of s. 409 of the Indian
Penal Code, so far as it related to offences by
public
servants,
stood
repealed.
The
learned
Judge after
referring to the various provisions of the Prevention of
Corruption Act came to the above
conclusion.
After
adverting to s. 26 of the General Clauses Act and its
counterpart, s. 33 of the Interpretation Act and
also
p~ssages from Maxwoll on Interpretation of Statutes,
the learned Judge was of opinion that it is not possible
to infer that there was no implied repeal.
Before we advert to the Indian cases, the first thing
that has to be remembered in this connection is that
(1) (1955] 1 S.C.R. 799 at pp. 807-809.
(4) (1896] A.C. 348.
(2) [1937] I K.B. 518.
(5) 1952 Punj. 89.
(3) [1858] 1 E. & E. 267,274,117 R.R. 206.
1957
0111 Prakash Gupta
v.
State of U. P.
Govinda Menon ].
1957
Om Prakash Gupta
v.
Stat, of U. P.
Govjnda Menon J.
434
SUPREME COURT REPORTS
[1957]
the Prevention of Corruption Act being a temporary
one, the legislature would not
have intended in the
normal course of things that a temporary statute like
the one in question should supersede an enactment of
antiquity, even if the matter covered
the same field.
Under s. 6(a) of the General Clauses Act if by efBux of
time the period of a temporary statute which had
repealed an earlier statute expires, there would not be
a revival of the earlier one by the expiry of the temporary statute.
A Full Bench of the Bombay High Court in T ht:
State v. Pand11rang Baburao(') held that the language
used by the legislature in s. 5 ( 4) of the Prevention of
Corruption Act clearly
negatived
any suggestion that
the legislature intended to repeal the provisions of
s. 409 of the Indian Penal Code. It cannot also be held
that s. 409 of the Indian Penal Code is impliedly repealed by the Prevention of Corruption Act because it is
impossible to say that the
provisions of the two are
wholly incompatible or that the two statutes together
would lead to wholly absurd consequences.
Therefore,
it was open to the prosecution to proceed with a trial
under s. 409 of the Indian Penal Code or under s. 5(2)
of the Prevention of Corruption Act even before the
amendment of the latter Act by Act LIX of 1952 and
if the prosecution was launched under s. 409 and if the
status of the accused was such that no sanction was
required under the provisions of the Criminal Procedure
Code, then the prosecution is good and the conviction
is proper notwithstanding the fact that if the prosecution had .been lauched under s. 5(2), a sanction would
have
been · necessary.
The
learned Judges dissented
from the
opinion expressed by Falshaw J. in The
State v. Gurclzaran Singh (supra) and also overruled
certain earlier Bombay cases. This court is in agreement with the expression of opinion by the learned
Chief Justice of the Bombay High Court in the above
Full Bench decision.
Ramaswami J. of the Madras High Court in Rt:.
V. V. Satyanarayanamurthy( ') came rn the conclusion
that s. 5(1) ( c) of the Prevention of O>rruption Act
(1) A.l.R. [1955] BoCD.
~51.
(2) A.L.R. [1953) Mad.
S.C.R.
SUPREME COURT REPORTS
435
does not repeal s. 409 of the Indian Penal Code, and
he accordingly dissented from the view taken in the
case The State v. Gurcharan Singh (supra).
The Calcutta High Court in Amarendra Nath Roy
v. The State( 1 )
has taken a similar view dissenting
from The State v. Gurcharan Singh (supra).
There
is a large body of case law in this direction and it is
unnecessary to mention all except the following :
(a) Mahammad Ali v. The State(2),
(b) Bhup Narain Saxena v. State(3),
(c) Gopal Das v. State(4).
As against all these cases the long voice of the
Punjab High Court in State
v.
Gurcharan
Singh
(supra) is the only dissentient one and after considering the matter carefully, it seems to us that the view
taken by the Punjab High Court is not sound.
We now proceed to consider whether the two sections are identical in essence, import and content and
in our opinion the argument on behalf of the State
carries much force when it is suggested that by enacting
the Amending Act of 1952 and creating sub-s. 4 to s. 5
the legislature specifically stated that the offence under
s. 5 ( 1) ( c) is different from any previous existing offences
under any penal statute and
there can,
therefore, be
no scope for speculation about repeal.
The words
used in sub-s. 4 "any other law" made
the position
quite clear and explicit.
Other law does not mean
identical law in which case the word 'other' will have
no meaning. At an earlier stage of this judgment we
have already tabulated the different elements constituting the two offences and
a clear
comparison and
contract of these elements would show that an offence
under s. 405 of the Indian Penal Code is separate and
distinct from the one under s. 5 ( 1) ( c). There are three
points of difference between s. 405 of the Indian Penal
Code al}d s. 5 ( 1) ( c). The dishonest misappropriation
contemplated in s. 405 of the Indian Penal Code
is
different; whereas that under section 5 ( 1 )( c) is either
dishonest misappropriation or fraudulent misappropriation. The latter section is much wider in amplitude
(1) A.I.R. [1955] Cal. 236.
(3) A.LR. [1952] All. 35.
(2) A.I.R. [1953] Cal. 681.
(4) A.I.R. [19541 All. 80.
1957
Om Prakash Gupta
v.
State of U. P.
Govinda Menon ].
1957
Om Prakash Guptd
v.
State of U. P.
Govinda Men•n J.
436
SUPREME COURT REPORTS
!19571
thon the former.
In s. 405 of the Indian Penal Code
the words used are "In violation of any
direction
of
law prescribing the mode in which such trust is to be
discharged, or
of any
legal
contract, express or
implied."
There are no such expressions ins. 5(1)(c).
It is clear, therefore, that whereas under s. 405 of the
Indian Penal Code there are three essential ingredients
to constitute the offence, each one of them being
separate and distinct, in s. 5 ( 1) ( c) there are only two.
Now considering s. 5(1)(c) there are certain matters in
it which are absent in s. 405 of the Indian Penal Code.
The
words
'dominion' and
'entrustment'
connote
two different things. The word 'dominion' is
not in
s. 5(1)(c). We have already stated that the word
'fraudulently' is not present in s. 405 and ins. S(l)(c)
the gist of the offence can also be made out if the
offender allows any person so to do, i.e., allows any
person to derogate from the law as contemplated in
the earlier portion of the section.
The meaning put
on
the
word 'allows' would
certainly
be
different
from
'dishonest
misappropriation'
by
the offender
himself. It may be that the word can mean allowing
by negligence or without any volition on the part of
the offender.
It may also mean that there is some
kind
of
pos1t1ve
and
tacit acquiescence necessary to
bring home the offence. In any event, allowing other
persons so to do does not find a place in s. 405 of the
Indian Penal Code
though this section
also contemplates "wilfully suffering any other person so to do."
There is an
essential
difference
between
"allowing"
a person and "wilfully suffering" a person to do a
certain thing.
There can, therefore, be no doubt whatever that
s. 5(1)(c) of the Prevention of Corruption Act creates
a new
offence
called
"criminal misconduct" and
cannot by implication displace the offence under s. 'I05
of the Indian Penal Code.
In this connection it is
useful to compare ss. S(l)(a) and 5(1)(b) with ss. 161
and 162 of the Indian Penal Code.
As has already
been referred
to, these two sections
are
aggravated
forms of ss. 161 and 162 of the Indian Penal Code
and the intention cannot be to abrogate
the earlier
..
S.C.R.
SUPREME COURT REPORTS
437
offence by the
creation of the new offence. These
tw6 offences can co-exist and the one will not be
considered
as
overlapping the other. A
course . of
conduct can
be
proved when a person is arraigned
under ss. 5(l)(a) and 5(1)(b), but such a course is
impossible to be let in evidence when an offence under
ss. 161 and 162 is being enquired into or tried.
Similarly there are a number of elements which can be
proved in an inquiry or trial under s. 5 ( 1) ( c) that
cannot be le.t in by the prosecution when a person is
charged for an offence under s. 405 of the Indian
Penal Code.
In s. 405 of the Indian Penal Code the
offender must wilfully suffer another person to misappropriate the property entrusted, but in s. 5(1)(c) if
he allows another person to dishonestly or fraudulently
misappropriate or otherwise convert for his own use
any property so entrusted, then it is an offence. There
is a vast difference between wilfully suffering another
and allowing a person to do a particular thing and in
our view the word "allows" is much wider in its
import.
Wilfully
pre-supposes
a
i:onscious
action,
while even by negligence one can allow another to do
a thing .
It seems to us, therefore, that the two offences are
distinct and
separate. This is
the view
taken
in
Amarendra Nath Roy v. The State (supra) and we
endorse
the opinion of the learned
Ju<lges,
expressed
therein.
Our conclusion, therefore, is that the offence
created under s. 5 ( 1 )( c) of the Prevention of Corruption
Act is distinct and separate from the one under s. 405
of the Indian Penal Code and, therefore, there can be
no question of s. 5(1)(c) repealing s. 405 of the Indian
Penal Code.
If that is so, then, article 14 of the
Constitution can be no bar.
The Jast argument of Mr. Isaacs is that despite the
fact that the prosecution is under s. 409 of the Indian
Penal
Code, still sanction . to prosecute
is necessary.
Quite a large body of case law in all the High Courts
has held that a public servant committing criminal
breach of trust does not normally act in his capacity
as a public servant, see
6-77 S. C. India/59
1957
Om Prakash Gupta
o.
State of U. P.
G vinda Menon J.
1957
Om Prakash Gup1a
...
State of U, P.
Gooinia Menon :J.
1957
January, 22.
438
SUPREME COURT REPORTS
[1957]
(a) The State v. Pandurang Baburao (supra),
(b) Bhup Narain Saxena v. State (supra),
and
(c) State v. Guiab Singh(').
We are in agreement with the view expressed
by
Hari Shankar and Randhir
~ingh JJ. that no sanction is necessary and the view expressed by Mul!a J.
to the contrary is not correct.
Criminal Appeal No. 3 of 1955 will accordingly be
dismissed.
Criminal Appeals -Nos. 42 of 1954 and 97
of 1955 will be heard on merits.
L. J. LEACH AND COMPANY LTD.
tJ.
JARDINE SKINNER AND CO.
(BHAGWATI,
VENKATARAMA
AYYAR,
B. P.
SINHA
and S. K. DAs JJ.)
Amendment of plaint-Addition of alternative ground for claim
-Necessary allegations present in plaint-Fresh suit on amended
clat'm barred by limitation-Whether amendment should he allowedAction in trover-W hen maintainable.
The appellants filed a suit for damages for conversion against
the respondents on the allegations that the respondents were the
agents of the appellants, that the appellants had placed orders for
certain goods with the respondents, and that the respondents had
actually
imported ...t:he
goods but refused to deliver them to the
appellants.
The
suit
was
dismissed
on the findings
that the
parties stood in the relationship of seller and purchaser, and not
agent and principal arid that the title in the goods could only pass
to the appellants when the respondents appropriated them to the
appellants'
contracts.
In appeal before the
Supreipe
Court, the
appellants applied for amendment of the plaint by raising, in the
alternative, a claim for damages for breach of contract for nonw
<lelivery of the goods.
All the allegations necessary for sustaining
a claim for damages for breach of contract were already present in
the plaint and the only allegation lacking was that the appellants
were, in the alternative, entitled to claim damages for breach of
contract by the non-delivery of the goods.
But a fresh
suit on
the amended claim was barred by limitation oh the date of the
application.
Held, that this was a fit case in which the amendment should
be allowed. The fact that a fresh suit on the amended claim was
(1) A.l.R. ['954] Raj. 2H.