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Madhya Pradesh High Court · body

2008 DIGILAW 959 (MP)

SHARAD KUMAR v. STATE OF MADHYA PRADESH

2008-08-01

R.C.MISHRA, R.S.GARG

body2008
Judgment ( 1. ) THE learned Single Judge, before whom this appeal against conviction under Section 12 of the Prevention of Corruption Act, 1988 (for short the Act)came up for consideration, has referred the following question for decision by a larger Bench :-"whether the offences under Sections 7 and 12 of the Prevention of Corruption Act, 1988 are substantive offences, if yes, being totally independent, the cases falling under it are required to be decided without taking aid of illustration (a) of Section 116 of the penal Code? If yes, whether by taking the aid of Illustration (a) of section 116 of the Penal Code holding that the offence under section 12 of the Act is proved, the case of Rajaram Vs. State of m. P. 2001 (1) MPLJ 624 , has been correctly decided?" ( 2. ) FOR a proper appreciation of the rival contentions, it is necessary to refer briefly to the legislative history leading to creation of the offence punishable under Section 12 of the Act. This section that is merely a restatement of Section 165-A of the Indian Penal Code (hereinafter referred to as the Code)punishes abetment of offences defined in Sections 7 and 11 of the Act, which respectively correspond to Sections 161 and 165 of the Code. Originally, there was no provision in the Code for punishing abetment of the offence under Section 161 or 165 thereof. The Prevention of Corruption Act, 1947 also did not contain any punishing Section for the offence of abetment of acceptance of illegal gratification or bribe by a public servant in respect of an official act, that was dealt with by Section 161 of the Code or the offence of obtaining of valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant, that was falling under Section 165 thereof. It was the Criminal Law Amendment Act, 1952 (XLVI of 1952) that inserted Section 165-A in the Code as the penal provision for abetment of these offences. Ultimately, the entire Chapter IX of the Code that comprised the offences by or relating to public servants including the one under Section 165-A was omitted by the Act. However, as pointed out already, Sections 7,11 and 12 of the Act are virtually the verbatim reproductions of Sections 161,165 and 165-A of the Code (since omitted ). ( 3. Ultimately, the entire Chapter IX of the Code that comprised the offences by or relating to public servants including the one under Section 165-A was omitted by the Act. However, as pointed out already, Sections 7,11 and 12 of the Act are virtually the verbatim reproductions of Sections 161,165 and 165-A of the Code (since omitted ). ( 3. ) AFTER tracing this legislative history, the learned Senior Counsel appearing on behalf of the appellant has strenuously contended that after coming into force of the Act, illustration (a) appended to Section 116 of the Code (for short the illustration) cannot be utilized for deciding guilt of an accused charged with the offence under Section 12 of the Act. To buttress the contention, primal reliance has been placed on a decision of the Apex Court in Bhajahari Mondal vs. State of W. B. ( AIR 1959 SC 8 ). However, learned Deputy Advocate General is of the view that omission of the illustration cannot be assumed, as the legislature has preferred to retain the same in the Code and that too, in me Chapter V titled as "of abetment". ( 4. ) FOR a ready reference, the following excerpts from the judgment in Rajarams case (supra), the correctness of which is at issue, may be reproduced :- "7. Section 116, Indian Penal Code relates to abetment of offence punishable with imprisonment. Section 116 of Code is reproduced below :-Illustration (a) of the section is reproduced below :-A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of Bs official functions. B refuses to accept the bribe. A is punishable under this section. " thus, it is clear that bribe is offered to a public servant as a reward for showing some favour in discharge of his official function. On refusal of public servant, to accept bribe, the person-offering bribe is punishable under this section. The language of Section 165-A of Code and that of Section 12 of the Act are identical in nature. Since the definition of abetment is not given in the Act, therefore, considering the provisions of illustration (a) of Section 116 of the code, it is established that person offering bribe which is refused by public servant, is also guilty of abetting offence and is liable to be punished under Section 12 of the Act. Since the definition of abetment is not given in the Act, therefore, considering the provisions of illustration (a) of Section 116 of the code, it is established that person offering bribe which is refused by public servant, is also guilty of abetting offence and is liable to be punished under Section 12 of the Act. Thus, in the facts and circumstances of the case, prosecution has established that the appellant has offered bribe to a public servant therefore, there is no force in the arguments of appellant that conviction under section 12 of the Act is not maintainable. 8. On going through the evidence on record, concurrent finding is recorded by the Trial Court and the Appellate Court that the appellant has offered bribe to a public servant. Thus, considering the illustration (a) of Section 116 of Code, offence under Section 12 of the Act is proved against appellant. No infirmity is committed by the Trial Court in framing charges under Section 12 of the Act. The appellant has rightly been punished under Section 12 of the act. The appeal has no merit and is dismissed". ( 5. ) IN Bhajahari Mandals case (supra), conviction under section 165-A of the Code was set aside for want of jurisdiction as the Government notification allotting the case to the Special Court for trial did not contain any reference thereto. It was, in this context, that the Supreme Court proceeded to observe that Section 165-A of the Code creates a specific offence of abetment of offence under Sections 161 and 165, which is distinct and separate from the offence under Section 116 of the Code. But, the question, in essence, that we are faced with is as to whether, in absence of an express repeal, the illustration has to be regarded as redundant or nugatory consequent to the deletion of Sections 161,165 and 165-A of the Code. ( 6. ) THERE is always a presumption against a repeal by implication and the reason of this rule is based on the theory that the legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter and therefore when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The presumption is, however, rebutted and a repeal is inferred by necessary implication only when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act "that the two cannot stand together" (Municipal Council, Palai Vs. T. J. Joseph AIR 1963 SC 1561 referred to. In that case, the Supreme Court had the occasion to deal with the question as to whether the offences under Sections 272 and 273 of the Code dealing with adulteration of food or drink intended for sale or sale of noxious food or drink stood impliedly repealed by the Prevention of Food Adulteration Act. The Court reaffirmed the principle that repugnancy only exists when: (1) there is a direct conflict between the two provisions. (2) When the legislature intended to lay down an exhaustive code in respect of the same subject-matter replacing the earlier law. (3) When the two laws occupy the same field. ( 7. ) THE relevant extracts of the statement of objects and reasons for bringing the Act on the statute book read as under :- 1. The bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions. 2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam committee. There are provisions in Chapter IX of the indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants. 3. The bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under Sections 161 to 165-A of the Indian Penal code, enhancement of penalties provided for these offences and. . . . . . . . . . . 4. . . . . . . . . . . 5. . . . . . . . . . . ( 8. ) THE Apex Court in P. Nallammal Vs. State rep. . . . . . . . . . . 4. . . . . . . . . . . 5. . . . . . . . . . . ( 8. ) THE Apex Court in P. Nallammal Vs. State rep. by Inspector of police AIR 1999 SC 2556 , while taking note of the fact that the Act does not contemplate abetment of any of the offences specified in Section 13 thereof, proceeded to hold that the abettor of any such offence could also be prosecuted along with the delinquent public servant for the offences read with Section 109 of the Code. Accordingly, the general provisions of Chapter V of the Code still serve as supplemental provisions for the offence of abetment punishable under the Act. ( 9. ) IT is, therefore, apparent that the legislature did not intend to make the illustration a mere surplusage or otiose. Further, the illustration is not, in any way, repugnant to Section 12 of the Act. It only serves as an example of abetment of an offence punishable under Section 7 of the Act. There are many other ways of instigating a public servant to commit this offence besides by means of a direct offer of bribe (See. Amiruddin Salebhoy Tyabjee, (1922) 24 Bom. LR 534; vanu Ramchandriah, (1927) 53 MLJ 723 ; Puran Singh, (1928) 29 Crlj 601 ). ( 10. ) THERE is yet another aspect of the matter. An illustration to a section, unlike marginal note, is to be considered as part of the section itself and is to be accepted as being both relevant and valuable for the construction of the section. ( 11. ) THE Judicial Committee of the Privy Council explained the significance to the attached to an illustration appended to a section in the following words :- "it is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the next. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired. " (Quoted with approval by the Apex Court in Jumma Masjid, mercara Vs. Kodimaniandra Deviah AIR 1962 SC 847 ). ( 12. ) HOWEVER, as further elucidated in Bengal Nagpur Railway Co. Ltd. Vs. Ruttanji Ramji AIR 1938 PC 67, illustration cannot have the effect of modifying the language and cannot curtail or expand the ambit of the Section, which alone forms the enactment. This rule of construction was affirmed by the apex Court in Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 104 wherein vivian Bose, J. , while referring to illustration to Section 106 of the Indian evidence Act, 1872, stated the principle in the following terms :- "we recognize that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially within the knowledge of the accused". ( 13. ) THUS, viewed from any angle, implied repeal of the illustration as suggested by the learned Senior Counsel can not be inferred. ( 14. ) ADVERTING to the decision in Rajarams case (above), it may be seen that the learned Judge has not taken any view inconsistent with the ratio propounded in Bhajahari Mandals case (supra ). He has nowhere laid down that any legal or mandatory presumption can be drawn from the facts mentioned in the illustration. What the learned Single Judge meant to say was that in absence of any definition of abetment in the Special Act and any illustration to exemplify the same, reference may be made to the provisions of general Act viz. He has nowhere laid down that any legal or mandatory presumption can be drawn from the facts mentioned in the illustration. What the learned Single Judge meant to say was that in absence of any definition of abetment in the Special Act and any illustration to exemplify the same, reference may be made to the provisions of general Act viz. the IPC including the illustration so as to understand as to what the word abetment means and includes? In other words, learned Single Judge has simply referred to the illustration to arrive at the conclusion that on the fact as found proved from the evidence the offence of abetment was made out. ( 15. ) FOR these reasons, we are of the considered view that the decision in Rajarams case (above) does not suffer from any incorrectness. ( 16. ) TO sum up, our answers are :- (i) that the cases falling under Sections 7 and 12 of the Act may be decided by taking aid of illustration (a) to section 116 of the Code. (ii) The case of Rajaram (supra) was correctly decided. ( 17. ) THE matter shall now be placed before learned Single Judge for proceeding further in accordance with the aforesaid opinion expressed by us. Reference answered accordingly.