State v. Gulab Singh — 1954 DIGILAW 95 (RAJ)

Wanchoo, C.J.—This is an appeal by the State against the acquittal of Gulab Singh accused of an offence under sec. 409 of the Indian Penal Code. 2. The prosecution case was briefly this, Gulab Singh was a cashier in the Panchayat Office at Udaipur, and used to remain in charge of moneys relating to that office. The money used to be kept in a safe which was placed in the office of the Inspector of Schools for safe custody. The accused left for Jaipur on casual leave on the 29th May, 1952, with the permission of Sundernath, the then Officiating Panchayat Officer. He should have returned to duty on the 29th of May, but did not. He sent applications for extension of his leave time and again. This extension however was not granted, but as the address of the accused was not known, he could not be informed of this refusal. In the meantime, Sundernath was relieved by Krishna Vallabh as Panchayat Officer on the 31st May, 1952. Krishna Vallabh wanted the keys of the safe in order to count the cash. Sundernath said that the keys were with the accused who had not returned. Thereafter, orders were sought from the Chief Panchayat Officer at Jaipur, who replied that the safe might be broken up. Preparations were made to break open the safe on the 3rd July, 1952, in the presence of a gazetted officer. But on the same day, Harnathsingh, brother of the accused appeared, and produced four keys. The safe was opened with the help of these keys, and was found to contain Rs. 45/9/- only. There was thus a deficiency of Rs. 1,017-/9 according to the account books. Consequently, a report was made on the 4th of July, to the police that this amount had been embezzled by the accused. The accused appeared on the 13th of July, 1952, and immediately produced the money. The prosecution case thus is of temporary embezzlement from 24th May, 1952, to the 13th July, 1952. 3. The accused also put forward his defence on the 13th July, to which he has stuck throughout. He case was that there were two compartments in the safe. In one compartment, which is under single lock, small cash in kept. In the other compartment, which is under double lock, deposits of Pan-chayats above Rs. 500/- are kept. 3. The accused also put forward his defence on the 13th July, to which he has stuck throughout. He case was that there were two compartments in the safe. In one compartment, which is under single lock, small cash in kept. In the other compartment, which is under double lock, deposits of Pan-chayats above Rs. 500/- are kept. The key of this second of inner compartment is kept with the Panchayat Officer. Thus no money can be taken out of this second or inner compartment unless the cashier opens the safe, and the Panchayat Officer opens the inner compartment. The accused further said that orders had been received from Jaipur to send the amount relating to deposits there. Consequently, Sundernath, Panchayat Officer, took out the money from the inner compartment for purchase of a bank draft to be sent to Jaipur and gave it to him to take necessary steps. Sundernaths father was ill that day, and he went away from the office at 11 A.M. leaving instructions to the applicant to write out the necessary letters The applicant went with the letters to the house of Sundernath who then said that he could not counter-sign them and money not be sent. Sundernath asked the accused to go back saying that he was coming, and would put the money back in the safe. The accused went back to the office, and waited till 4 P. M., but Sundernath did not come. It was a Saturday, and the office was to close at 1 P.M. So he went after 4 P.M. to Sundernaths house, and asked him to arrange to put back the money in the safe. Thereupon, Sundernath gave him two keys which used to be kept by him, and told the accu-sed that the responsibility was his. As the accused could not put the money in the safe because the office was closed, and the chowkidar would not permit him to touch the safe, he went home and kept the money there. Thereafter he went away on leave. Later he applied for extension of leave from time to time. He denied that he had absconded. The accused also produced the document Ex.C-l which bears the date 24th of May. Thereafter he went away on leave. Later he applied for extension of leave from time to time. He denied that he had absconded. The accused also produced the document Ex.C-l which bears the date 24th of May. In that document he complained to the Panchayat Officer that he was overburdened with work, and also incidentally mentioned that the money, which had been taken out, could not be put in the safe, and was at his house. This document bears the endorsement of Sundernath of same date, namely the 24th May, 1952. The case of the accused, therefore, is that the money certainly remained in his possession, but there was no dishonest intention whatsoever on his part to misappropriate it. 4. The Magistrate held that the case was proved, and the money had been dishonestly taken away, and convicted the accused. In appeal, the Sessions Judge, while he was of the view that dishonest intention was established, held that sec. 409 of the Indian Penal Code was by implication repealed by sec. 5 (l)(c) of the Prevention of Corruption Act, 1947, and relied on. The State vs. Gurcharan Singh(l) in this connection. He, therefore, acquitted the accused, 5. This appeal by the State challenges the view taken by the Sessions Judge that sec. 409 of the Indian Penal Code, as applicable to public servants, has been repealed by sec. 5 (1) (c) of the Prevention of Corruption Act, 1947. The accused, on the other hand, supports the judgment of the Sessions Judge on this point, and it is further contended on behalf that even if he could be prosecuted under sec. 409, the Sessions Judge was wrong in holding that dishonesty had been proved, and therefore he should be acquitted on that account also. 6. We shall first deal with the question whether sec. 409 of the Indian Penal Code has been repealed by sec. 5(l)(c) of the Prevention of Corruption Act so far as it relates to public servants. This matter was considered at length by the Punjab High Court in Gurcharan Singhs case, and it was held that there was repeal by implication of sec. 409 so far as it related to public servants, by sec. 5(l)(c) of the Prevention of Corruption Act, 1947. This matter was considered at length by the Punjab High Court in Gurcharan Singhs case, and it was held that there was repeal by implication of sec. 409 so far as it related to public servants, by sec. 5(l)(c) of the Prevention of Corruption Act, 1947. The learned Judges pointed out that the Prevention of Corruption Act introduced certain major changes so far as the law relating to embezzlement by public servants was concerned, and therefore the intention of the legislature must have been to repeal sec. 409 Indian Penal Code as applicable to public servants, as the legislature could not have intended to leave it open to the State to choose whether to prosecute a public servant under sec. 409 or under sec. 5 (1) (c). 7. This matter came to be considered by other High Courts also. In Bhup Narain Saxena vs. State(2) a question arose whether a person could be punished under sec. 5 (2) of the Prevention of Corruption Act when he was charged under specific offences under the Penal Code. It was held that this could not be done even though there might be a higher punishment under sec. 5 (2) of the Prevention of Corruption Act. The exact point before us did not arise in that case; but sec. 409 has also been mentioned in that judgment, and one may infer that the Judge were of the view that a person could be prosecuted under sec. 409, and that it had not been repealed by Sec. 5(1)(c). 8. In re. vs. V. Satyanarayan Murthy (3), a learned Judge of the Madras High Court dissented from the view taken in Gurcharan Singhs case(l), though it must be said that the reason given in Gurcharan Singhs case(l) were not examined. 9. In Madho Prasad vs. The State(5), a learned Judge of the Madhya Bharat High Court dissented from Gurcharan Singhs case(l) and relied on sec. 26 of the General Clauses Act, and the amendment to sec. 5 of the Prevention of Corruption Act, which was made in August, 1952. 10. In Mohammad Ali vs. The State (5), a bench of the Calcutta High Court held that sec. 5 (1) (c) did not repeal sec. 409 of the Indian Penal Code as it related to public servants, and relied on the amendment made in August, 1952, of sec. 5 of the Prevention of Corruption Act. 10. In Mohammad Ali vs. The State (5), a bench of the Calcutta High Court held that sec. 5 (1) (c) did not repeal sec. 409 of the Indian Penal Code as it related to public servants, and relied on the amendment made in August, 1952, of sec. 5 of the Prevention of Corruption Act. One of the learned Judges had earlier decided to the contrary following the Punjab view; but he pointed out in this case that after the amendment there was no scope for any doubt that sec. 5 (1) (c) never repealed sec. 409 of the Indian Penal Cade. 11. In a later case Puran Mal vs. The State (6) the Punjab High Court adhered to the view it had taken in Gurcharan Singhs case holding that the amendment of August, 1952, was not retrospective, and that between the period from 1947 to 1952, sec.409 must be deemed to have repealed. 12. The amendment, which was made in August 1952, by inserting sub-sec. 5 (4) was this :— "The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him." This amendment makes it abundantly clear that sec. 409 is not repealed by sec. 5 (1) (c), at any rate, since the amendment came into force. The only question, that remains then is whether for the period between 1947 when the Prevention of Corruption Act was passed, and August, 1952, when the amendment was made, sec. 409, as it related to public servants, can be deemed to have been repealed by implication. 13. It has been held in a number of cases that a special law does not repeal the general criminal law unless the intention is made clear in that law. The Madras High Court held in 1876 (See. I. L. R. 1 Madras, 55) that the ordinary criminal law was not excluded by Regulation VIE of 1817, or Act XX of 1853. The question there related to criminal breach of trust in respect of certain property belonging to a temple. The Madras High Court held in 1876 (See. I. L. R. 1 Madras, 55) that the ordinary criminal law was not excluded by Regulation VIE of 1817, or Act XX of 1853. The question there related to criminal breach of trust in respect of certain property belonging to a temple. It was contended that in view of the provisions in certain special laws, the trustee could not be prosecuted for criminal breach of trust except with the consent or on the motion of the committee appointed under the special laws. The High Court held that permission was only required when the procedure prescribed by the special Acts was to be followed, and these special provisions could not be taken out of the special Acts, and applied as a restriction to the ordinary operation of the criminal law. 14. In Emperor vs. Joti Prasad Gupta(7), it was held that there was nothing in the special Act, namely the Salt Act, to exclude the operation of the usual criminal law as contained in the Indian Penal Code, and it could not be presumed that there was an intention on the part of the legislature to exclude it. Such an intention must appear either from the express words of the text, or by necessary implication. 15. There is no express provision in the Prevention of Corruption Act repealing sec.409 I.P.C, as applicable to public servants. Further it seems to us that it is not possible to hold that sec. 409 I.P.C. is repealed by necessary implication by sec. 5(l)(c) of the Prevention of Corruption Act, even though there are some differences as pointed out in Gurcharan Singhs case (1), particularly in view of the amendment which was made in August, 1952. The legislature has now made it clear that sec. 5(l)(c) is not intended to repeal sec. 409 as it relates to public servants. In the face of this amendment, it is difficult to hold that the legislature intended necessarily in 1947 that sec. 409 would be repealed by sec 5 (l)(c). We are, therefore, in agreement with the view taken in Maham-mad Alis case (5) that it is not possible how after the amendment to hold that the legislature ever intended by necessary implication to repeal sec. 409 I.P.C, even though the words of the amendment are not retrospective In nature. We, therefore, hold that sec. We are, therefore, in agreement with the view taken in Maham-mad Alis case (5) that it is not possible how after the amendment to hold that the legislature ever intended by necessary implication to repeal sec. 409 I.P.C, even though the words of the amendment are not retrospective In nature. We, therefore, hold that sec. 409 I.P.C. has not been repealed by sec. 5(l)(c) of the Prevention of Corruption Act, 1947. 16. The next question is whether even if sec. 409 is not repealed by sec. 5(1)(c), it was open to the State to launch a prosecution under sec. 409 for an offence which was exactly covered by sec. 5(l)(c) when the latter section required sanction under sec. 6 of the Prevention of Corruption Act. In this connection, our attention has been drawn to Emperor vs. Ram Nath(8). In that case, a person was prosecuted under sec. 465 of the Penal Code, though his offence came speci-fically under sec. 171-F of the same Code, The learned Judge held that where there are two provisions, one specific and the other general, the specific provision ought to be applied in preference to the general one, and pointed out two circumstances in support of this view, namely (1) that the offence under sec. 171-F had a smaller maximum punishment, and (2) that the prosecution under Sec. 171-F required the sanction of the local Government. 17. This case, in our opinion, does not apply to the facts of the case before us. In that case, the two offences were under the same law, namely the Indian Penal Code, and sec. 26 of the General Clauses Act of 1897 did not apply to the facts of that case Sec. 26 is as follows — "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence," Where, therefore, an act or omission is an offence under two different laws, sec. 26 gives option to the prosecutor to prosecute under either of the two laws, with this limitation that no person would be punished twice for the same offence. In the Allahabad case(8) mentioned above, the act was not an offence under two enactments, but under two provisions of the same enactment, and sec. 26 gives option to the prosecutor to prosecute under either of the two laws, with this limitation that no person would be punished twice for the same offence. In the Allahabad case(8) mentioned above, the act was not an offence under two enactments, but under two provisions of the same enactment, and sec. 26 of the General Clauses Act did not apply in the circumstances. In such a case, the view may be correct that where an act is an offence under two provisions of the same law, and one of them requires sanction while the other does not, and one applies more specifically than the other, the prosecution must be under the more specific one, or under the one requiring sanction. But where, as in this case, the act is an offence under two different enactments, sec. 26 gives option to the prosecutor to prosecute either under one or the other, and it is not open, to our mind, for the court to say that the prosecution must be under that enactment which requires sanction. 18. Sec. 6 of the Prevention of Corruption Act, which provides for sanction, mentions, secs. 161 and 165 of the Indian Penal Code, but does not mention sec. 409 specifically, which shows that it was hot the intention of the legislature to insist on sanction in cases against public servants under sec. 409. It is true that sanction was required by this section for offences under sec. 5(2), and that included the offence defined in sec. 5 (1) (c) which is exactly the same as the offence under sec, 409 Even so, if the option is in the prosecutor under sec. 26 of the General Clauses Act to prose-cute under either enactment, it is not open to the court to insist that the prosecution must be under that enactment which requires sanction, and that it will not proceed to try the case under that enactment which does not require sanction. It may also be pointed out that the position is now made crystal clear by the amendment to sec. 5 which we have quoted above. That amendment does not merely say that the provisions of sec. It may also be pointed out that the position is now made crystal clear by the amendment to sec. 5 which we have quoted above. That amendment does not merely say that the provisions of sec. 5 shall be in addition to, and not in derogation of, any other law; but it goes on further to say that nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him. This, to our mind, clearly means that if it was possible to institute any proceeding against a public servant without sanction for an act, which was an offence under any other law, the fact that the act was made an offence under this section would not exempt the public servant from being prosecuted under that law. What this amendment has made clear was already, to our mind, implicit in view of sec. 26 of the General Clauses Act. It is, therefore, open to the prosecutor to prosecute a public servant under sec. 409 of the Indian Penal Code without sanction from the State. and the court cannot insist that the prosecution must be under sec. 5(1)(c) of the Prevention of Corruption Act with the sanction of the State. The Sessions Judge is therefore, wrong in acquitting the accused on the ground that sec. 409 had been repealed. We are further of opinion that the prosecution cannot fail because sanction had not been obtained. 19. Then we turn to the facts of the case It is not in dispute that the money remained with the accused from 24th May, 1952, to the 13th July, 1952. The question is whether this was with the dishonest: intention required under sec. 409. In this connection, the statement of the accused was made at once on the 13th July, and he gave an explanation which, if correct, exonerates him. We must say that that explanation has not been fully corroborated by the evidence on the record, for example, there is nothing to show that there was any order from Jaipur for sending the money there. We must say that that explanation has not been fully corroborated by the evidence on the record, for example, there is nothing to show that there was any order from Jaipur for sending the money there. Further, there seems to be some contradiction in the statement of the accused, for, at one place, he says that Sunder Nath had given him two keys which had to be kept by him, though later he says that the keys of the inner compartment were with Sunder Nath and were later put into the safe surreptitiously. It seems to us that if Sunder Nath gave him all the keys, they must be the keys of the double lock and no other. 20. At the same time, there are circumstances which make it not impossible that there might not have been any dishonesty in the mind of the accused, and he might have kept the money at his house on account of force of circumstances, as stated by him. It is clear that the double lock system was in force for Raghubir Singh P. W. 5 says that the money is taken out, presumably from the double lock, under the instructions of the Panchayat Officer. Though there was no specific order from Jaipur for sending the money there, Tej Singh P.W. 3 admitted that money relating to the Head Office is sent to Jaipur by draft or though some messenger, while money relating to expenses at Udaipur remains in the safe. He was asked whether all the money related to expenses at Udaipur or otherwise, but he could not so anything one way or the other in that connection. The statement of Sunder Nath, who is the main prosecution witness, is, in our opinion, most unsatisfactory, and we cannot rely on him at all. Kishan Vallabh has admitted that Sunder Nath should have kept the keys of the double lock with him, though he added that Sunder Nath had no keys with him. In order to meet this difficulty, namely that he should be in possession of the double lock keys, and he actually was not so in possession, Sunder Nath came forward with the story that he did not know what was double lock, or what was single lock, and that he had never any keys whatsoever with him, and that all the keys used to be kept with the accused. This is something which we find impossible to believe Sunder Nath was examined in July, 1952, and he said that though he did not know in May, 1952, that he should keep the key of the double lock, he knew it at the time when he came to give evidence. He had taken charge only shortly before, and we are not prepared to believe that he was not told by his predecessor about the double lock. Further, he is a person who has no regard for truth, for, at one place, he said that when he took charge, he did not know anything about accounts. Immediately after however, he had to admit that he had worked as Inspector of Gram Panchayat for 3 years and had inspected their accounts made times. It seems to us that Sunder Nath knew every thing ; but as his father was ill on the 24th of May, he left it to the accused to find for himself, and handed over the keys of the double lock also, as alleged by the accused. 21. Then there is Ex.C-l. This document bears the endorsement of Sunder Nath of the 24th May. It contains the statement that the money, which had been taken outs had been kept at his house, as it could not be put back in the safe. Sundar Nath admitted that he had read Ex,C-l carefully before he put down his endorsement on it. When he was confronted with the sentence relating to the money, he came forward with the suggestion that that sentence had been added later on. The Sessions Judge was, however, of the view that that was not so. We have seen the original document, and agree with the Sessions Judge that the sentence relating to the money is not an interpolation. Therefore, if Sunder Nath had read Ex.C-l care fully, he should have immediately wondered what this money was which had been taken out and kept at home and could not be kept in the safe. The Magistrate was faced with this difficulty also, but took the view that Sunder Nath must have colluded with the accused, and signed this document later in July, in order to help the accused. The Sessions Judge did not agree with this view but thought that Sunder Nath might not have read this sentence, but this is not Sunder Naths explanation. The Sessions Judge did not agree with this view but thought that Sunder Nath might not have read this sentence, but this is not Sunder Naths explanation. He does not say that he read Ex.C-l hurriely, and omitted to notice this sentence. He says that he had read it carefully, and that this sentence is a later interpolation. On the whole, this document, in our opinion, shows that there might be truth in the statement of the accused that the money was kept by him as he could not put it in the safe on account of the circumstances which he had explained. 22. It was urged that if it was a fact that the money had not been taken away dishonestly; it should have been produced immediately on the 3rd of July. This argument would have had force if the accused was present in Udaipur on the 3rd of July. It is no ones case that the accused was in Udaipur on the 3rd of July, and knew that the safe had been opened, and the money found short. The evidence on the record shows that the accused was in Udaipur for the first time on the 13th of July, and that on that date the money was produced. His brothers evidence is that his father taxed him for this dishonesty, and he Immediately said that the money was lying in the house, and had not been embezzled. 23. Taking these circumstances into account and because of the unreliability of the main prosecution witness Sunder Nath. We feel that it cannot be said without reasonable doubt that the accused acted dishonestly in removing the money from the safe which he admittedly did. It may be that the money was removed with the dnowledge of Sunder Nath to be sent to Jaipur, and when it could not be sent on that day Sunder Nath left it in the custody of the accused. It may be that the money was removed with the dnowledge of Sunder Nath to be sent to Jaipur, and when it could not be sent on that day Sunder Nath left it in the custody of the accused. Later when the now man came to take over charge at the end of May, Sunder Nath might have felt apprehensive of departmental action aginst him in view of what he had dome on the 24th of May, and therefore began to pose as a complete simpleton, who did not even kinow what double sock consideration therefore of the evidence in this case, we are not satisfied that it is proved beyond all reasonable doubt that the accused had a dishonest intention when money remained with him from the 24th of May, It may be that he had no dishonest intention and it was forcer of circumstances, as explained by him, which compelled him to deep matter, there is no reason to interfere with the order of acqui9ttal of the Session Judge, though our grounds are different.