OM PRAKASH GUPTA v. STATE OF U. P.
Citation: [1957] 1 S.C.R. 423; 1957 INSC 2
Court: Supreme Court of India
Bench: SUDHI RANJAN DAS , NATWARLAL HARILAL BHAGWATI, T.L. VENKATARAMA AIYYAR, S.K. DAS, P. GOVINDA MENON
Judgment date:
Case summary
1957 INSC 2. Supreme Court of India judgment dated 1957-01-11. OM PRAKASH GUPTA v. STATE OF U. P. Read the judgment and case details on LawSphereX.
Judgment 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 well-founded. 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 ) Implied repeal-Whether s. 409 of the Indian Penal Code is impliedly repealed by s. 5(J)(c) of the Prevention of Corruption Act, 1947 (II of 1947)-Whether the application of s.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 Constitution- Sanction-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 • 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. Porus A. Mehta an rruption Act (1) A. l. R. [1955] BoCD. ~51. (2) A. L. R.
[1953) Mad. 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 1 v. The State( ) 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 constitut-ing 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 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 contemp-lates "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. (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. 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 offence by the creation of the new offence. These tw6 offences can co-exist and the one will not be Om Prakash Gupta o. considered as overlapping the other. A course . of State of U. P.
conduct can be proved when a person is arraigned G vinda Menon J. 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 (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 allowed- Action in trover-When 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.
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