Criminal Appeals Nos 130 and 131 of 1954
Appeals by special leave from the judgment and order dated September 11 1953 of the former Madhya Bharat High Court in Appeals Nos
42 and 43 of 1953
Shiv Dayal and R H Dhebar for the appellant
B C Misra amicus curiae for the respondent
April 5
The Judgment of the Court was delivered by GOVINDA MENON J
The State of Madhya Bharat G which after November 1 1956 had become merged in the present State of Madhya Pradesh had obtained special leave from this court on April 11 1954 to appeal against the judgment and order of acquittal passed in favour of the respondent herein by the High Court of Judicature of Madhya Bharat on September 11 1953 in two consolidated Criminal Appeals Nos
42 and 43 of 1953 by the identical appellant before that court
The question for decision in these two appeals is how far the High Court was justified in ordering the acquittal
The respondent herein was a Tax Collector in the Municipal Committee of Lashkar Gwalior and was prosecuted in the court of the City Magistrate and Additional District Magistrate Lashkar firstly by means of a challan dated October 23 1951 for offences under sections 468 477 A and 409 of the Indian Penal Code and section 5 2 of the Prevention of Corruption Act II of 1947 in that he misappropriated a sum of more than Rs 7000 entrusted to him in the capacity of Tax Collector and during the course of the said transaction committed various offences
On July 4 1952 a second complaint was filed against him in the same court under the identical sections for having misappropriated in 1950 a sum of Rs 3500 in all under similar circumstances
While these two complaints were pending in the trial court on July 28 1952 the Criminal 112 870 Law Amendment Act Act No 46 of 1952 came into force and by section 6 of that statute the State Government was authorised to appoint a Special Judge for the trial of an offence under sub section
2 of section 5 of the Prevention of Corruption Act 11 of 1947
Section 7 of the same statute laid down that notwithstanding any
thing contained in the Criminal Procedure Code or any other law for the time being in force an offence under section 5 2 of the Prevention of Corruption Act could be tried only by a Special Judge appointed under section 6 of the Criminal Law Amendment Act
Sub cl
b of section 7 laid down that when trying a case triable exclusively by a Special Judge under this statute he may also try any other offence with which the accused may under the Code of Criminal Procedure be charged at the same trial
The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under section 7 which immediately before the commencement of the Act were pending before any Magistrate shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases
In accordance with the above mentioned provisions of the statute the cases pending before the City Magistrate and Additional District Magistrate Lashkar were transferred to a Special Judge constituted for the purpose before whom they were numbered as Case No 3 of 1953 and No 6 of 1953
After the prosecution evidence was over on March 10 1953 the Special Judge framed charges under all the sections complained against
By separate judgments dated June 5 1953 the Special Judge found the respondent guilty of an offence under section 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years
He however passed an order of acquittal under sections 468 and 477 A of the Indian Penal Code
As regards the charge under section 5 2 of Act II of 1947 the learned Special Judge was of the view that since the provisions of subs
4 of section 5 of the Prevention of Corruption Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub section
2 871 of section 5 of the Prevention of Corruption Act without an order of a 1st Class Magistrate had not been complied with the foundation for preferring a complaint had not been established and therefore there was an illegality which affected the jurisdiction of the court to try the case the result being that the accused could not be tried for that offence
Such being the case no formal order of acquittal was passed by the trial court
Aggrieved by the convictions under section 409 of the Indian Penal Code the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that court and by a common judgment that court applying the doctrine of autrefois acquit held that when once on the same facts the trial Judge found that the respondent could not be found guilty of an offence under section 5 2 of the Prevention of Corruption Act it was tantamount to an acquittal for that offence in which case no conviction could be had under section 409 of the Indian Penal Code
The respondent was therefore acquitted
As mentioned already the State has been granted special leave to appeal against the orders of acquittal
The correctness of the conclusion of the High Court has been challenged in more ways than one by the appellant s counsel
Firstly it is argued that the offence under section 5 2 of the Prevention of Corruption Act and that under section 409 of the Indian Penal Code are not the same and such being the case granting that the order of the Special Judge amounted to an acquittal under section 5 2 of the Prevention of Corruption Act still that would not bar the conviction of the respondent under section 409 of the Indian Penal Code
Secondly it is pointed out that when at the same trial there are two alternative charges like those with which we are now concerned acquittal of the accused under one charge is no impediment to his conviction on the other and lastly it is contended that any defect in the investigation would not amount to an illegality which would invalidate the trial and conviction if the proceedings culminate that way
872 This court has recently held in Om Prakash Gupta vs The State of U P1 that the offence of criminal misconduct punishable under section 5 2 of the Prevention of Corruption Act II of 1947 is not identical in essence import and content with an offence under section 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 section 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 section 51c of the Prevention of Corruption Act is distinct and separate from the one under section 405 IPC and therefore there can be no question of s51c repealing section 405 IPC 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 a 409 of the Indian Penal Code even if the respondent has been acquitted of an offence under section 52 of the Prevention of Corruption Act II of 1947
Section 4031 of the Criminal Procedure Code only prohibits a subsequent trial for the same offence or on the same facts for any other offence for which a different charge from the one made against an accused person might have been made under section 236 of the Criminal Procedure Code or for which he might have been convicted under section 237 when the earlier conviction or acquittal for such an offence remains in force
It is obvious that section 4031 has no application to the facts of the present case where there was only one trial for several offences of some of which the accused person was acquitted while being convicted of one
On this ground alone the order of the High Court is liable to be set aside
The High Court also relied on article 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and therefore the 1 1957 SCR423
873 well known maxim  Nemo debet bis vexari si constat curice quod sit pro una et eadem causa No man shall be twice punished if it appears to the court that it is for one and the same cause  embodied in article 20 cannot apply
The next argument on behalf of the appellant is that where there are two alternate charges in the same trial the fact that the accused is acquitted of one of them will not prevent the conviction on the other is also well founded
Section 26 of the General Clauses Act can be called in aid in support of this proposition
There is no question of double jeopardy
Section 26 runs as follows Provisions as to offences punishable under two or more enactments 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
 We are therefore of the opinion that the learned Judge s view on this aspect of the case is also unsound
In view of what has been stated above it is unnecessary to deal with the last contention of the learned counsel for the appellant except merely to state that the Special Judge had jurisdiction to try the accused person under section 7 of the Prevention of Corruption Act 1947
The result is that the appeals succeed the order of the High Court acquitting the respondent of an offence under section 409 of the Indian Penal Code is set aside and the appeals are remanded to the High Court of Madhya Pradesh for re hearing on the merits


Summary:
The accused was tried by a Special Judge for offences under section 409 Of the Indian Penal Code and section 52 of the Prevention of Corruption Act
He was convicted under section 409 but the judge held that the accused could not be tried under section 52 as there had been no investigation by a police officer not below the rank of a Deputy Superintendent of Police
Upon appeal by the accused against the conviction under section 409 the High Court applying the doctrine of autrefois acquit held that the order of the judge in respect of the charge under section 52 was tantamount to an acquittal for that offence and on the same facts no conviction could be had under section 409  Held that the offences under section 409 of the Indian Penal Code and under section 52 of the Prevention of Corruption Act were distinct and separate and there could be no objection to a trial and conviction under section 469 even if the accused had been acquitted under section 52
Om Prakash Gupta vs The State Of UP   applied
Section 4031 of the Code of Criminal Procedure has no application where there is only one trial for several offences of some of which the accused person is acquitted though convicted of one
Article 20 of the Constitution also does not apply where the accused had not already been tried and acquitted for the same offence in an earlier trial 869 Where there are two alternate charges in the same trial the fact that the accused is acquitted of one of them will not prevent the conviction on the other