Case ID: 482

Judgment:
: 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. 7	000	 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. 3	500 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 sub.s. (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. P.(1)	 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 5(1)(c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 I.P.C. and	 therefore	 there can be no question of s.5(1)(c) repealing section 405 I.P.C." 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 5(2) of the Prevention of Corruption Act II of 1947. Section 403(1) 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 403(1) 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] S.C.R.423. 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 5(2) 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 5(2) 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 5(2) 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 5(2) 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 5(2). Om Prakash Gupta vs The State Of U.P.	 ; 	 applied. Section 403(1) 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.