Criminal Application No.2400 of 2006

10th November, 2006

Petitioner Counsel: Mr. ALOK C. CHOUDHARI
Respondent Counsel: Mr. AHIRKAR

Cases Cited:
Amarendra Nath Roy Vs. State, AIR 1955 CALCUTTA 236 [Para 7,10]
State of M.P. Vs. Veereshwar Rao Agnihotri, AIR 1957 SC 592 [Para 8,11,12,13]
State Vs. Navjot Sandhu, 2005 ALL MR (Cri) 2805 (S.C.)=2005 Cri.L.J. 3950 [Para 8,11,13]

JUDGMENT

JUDGMENT :- Heard Mr. Alok C. Choudhari, learned counsel for the applicant & Mr. Ahirkar, learned counsel for Respondent.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

3. By this application under Section 482 of Cr.P.C., the applicant contends that the order passed by the Special Court, C.B.I., Nagpur, dated 3rd May, 2006, in Special Case No.11/95, by which it rejected the application of the applicant/accused under Section 216 of Cr.P.C., calling for the direction to the prosecution to opt for trial of the accused for one offence i.e. either for 13(1)(C) of the Prevention of Corruption Act or Section 409 of I.P.C., relying on the provisions of Section 26 of the General Clauses Act.

4. The facts giving rise to the filing of this application may be stated thus-

The applicant is the accused being tried for the offence punishable under Section 13(1)(C) of the Prevention of Corruption Act and offence punishable under Section 409 of I.P.C. in Special Case No.11/95, pending before the Special Court for C.B.I., Nagpur. When the trial was proceeded and the charge was framed, the charge was for both these offences. The accused/applicant then moved an application under Section 216 of Cr.P.C. calling for the amendment to the charge by altering it either for Section 13(1)(C) r/w Section 13(2) of the Prevention of Corruption Act or under Section 409 of I.P.C.

5. The prosecution C.B.I. objected the said application by filing its detail say.

6. Learned Special Judge after hearing the parties, came to the conclusion that he cannot direct the prosecution to opt for one of the offences for trial. According to him, considering the nature of Section 26 of the General Clauses Act, question of punishment can be considered if the offence is proved and at this stage prosecution cannot be compelled to give option. It is this order which is challenged here in this application.

7. Learned counsel for the applicant/accused has submitted that in view of Section 26 of the General Clauses Act, the prosecution has to give the details of the offences for which the accused is to be tried. If the omission or act constitutes an offence under two or more enactments, the offender is liable to be prosecuted only under one enactment and therefore, it was for the prosecution to give option as to whether it wants to prosecute the accused/applicant, for the offence punishable under Prevention of Corruption Act or offence under Indian Penal Code. He has relied on the decision of the Calcutta High Court in AIR 1955 CALCUTTA 236 (Amarendra Nath Roy Vs. The State) in support of his submission.

8. As against this, learned counsel for the respondent has submitted that in view of the decision of the Apex Court in AIR 1957 SC 592 (State of M.P. Vs. Veereshwar Rao Agnihotri) and 2005 Cr.L.J. 3950 : [2005 ALL MR (Cri) 2805 (S.C.)] (State Vs. Navjot Sandhu), the offence under the Prevention of Corruption Act and Section 409 of I.P.C. are not identical and therefore, the prosecution cannot be directed to exercise option as to the prosecution of the accused for any one of these offences.

9. For appreciating the contentions of the learned counsel for the parties, it is necessary to peruse the provisions of Section 26 of the General Clauses Act.

Section 26 of the General Clauses Act reads as under:-

"26. Provision as to offence punishable under two or more enactments- When 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 of any of those enactments, but shall not be liable to be punished twice for the same offence.

It clearly appears that the prosecution has to consider an option required under Section 26 of the General Clauses Act only if act or omission by the accused constitutes an offence under two or more enactments. Here is the case where prosecution contends that both these offences i.e. under Prevention of Corruption Act and Indian Penal Code are different offences.

10. In AIR 1955 CALCUTTA 236 (Amarendra Nath Roy Vs. The State), the Division Bench of Calcutta High Court has observed thus-

"Section 26 of the General Clauses Act runs 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 for the said offence.

The choice lies with the prosecutor as to whether the offender should be prosecuted and punished under one or other of the two enactments under both of which the act or omission complained of might fall. This choice of the prosecutor is always there and if the authorities in any particular case decide on a prosecution under the Prevention of Corruption Act then and then only the question of sanction would arise and not otherwise...."

11. Although the above observations, some what support the contentions of the learned counsel for the applicants, the observations of the Apex Court in AIR 1957 SC 592 (State of M.P. Vs. Veereshwar Rao Agnihotri) and 2005 Cr.L.J. 3950 : [2005 ALL MR (Cri) 2805 (S.C.)] (State Vs. Navjot Sandhu) which are binding on this Court fortify the contentions raised by the prosecution.

12. It is observed by the Apex Court in para 5 & 6 in AIR 1957 SC 592 (State of M.P. Vs. Veereshwar Rao Agnihotri) thus-

"5. This Court has recently held in Om Prakash Gupta Vs. State of U.P. Criminal Appeals No.42 of 1954 and 3 and 97 of 1955 : ((s) A.I.R. 1957 S.C. 458) (A), that the offence of criminal misconduct punishable under S.5(2) of the Prevention of Corruption Act II of 1947 is not identical in essence, import and content with an offence under S.409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate S.409 of the Indian Penal Code. In the common judgment in those appeals the conclusion has been expressed in the following words:

"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.409 I.P.C. and, therefore, there can be no question of S.5(1)(c) repealing S.409, I.P.C."

(6) In view of the above pronouncement, the view taken by the learned Judge of the High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under S.409 of the Indian Penal Code even if the respondent has been acquitted of an offence under S.5(2) of the Prevention of Corruption Act 2 of 1947."

13. It has been clearly pointed out that the offence under Prevention of Corruption Act is not similar to that of offence under Section 409 of I.P.C. The same are not identical, they have different essence, merit and contents. The observations of the Apex Court in AIR 1957 SC 592 (State of M.P. Vs. Veereshwar Rao Agnihotri) have been followed in 2005 Cri.L.J. 3950 : [2005 ALL MR (Cri) 2805 (S.C.)] (State Vs. Navjot Sandhu).

14. Here is the case where accused was prosecuted for the offence under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, which is similar to one under Section 5(2) of the Prevention of Corruption Act and Section 409 of the Indian Penal Code. Therefore, in my opinion, these two offences will be distinct offences for which the charge can be framed together. Of course, the applicant is at liberty to raise the contentions that both these offences are not established or any one of the offence is established, at the time of final hearing in the trial.

15. It further needs to be noted that by framing two charges together, the accused/applicant will not be prejudiced in any way. It is contended by the learned counsel for the applicant that he would be loosing the facility of the trial in the Court of J.M.F.C. and one appeal in the Sessions Court if the charge against him is framed only for Section 409 of I.P.C. But that fact by itself will not compel the prosecution to exercise an option as regards the prosecution of the applicant/accused for one offence i.e. offence under Section 13(1)(c) of the Prevention of Corruption Act or under Section 409 of Indian Penal Code.

16. In the circumstances, I do not find any substance in the application and therefore, it is liable to be rejected. Accordingly it is rejected.

Rule is discharged.

Application rejected.