11 January 1957
Supreme Court

OM PRAKASH GUPTA Vs STATE OF U. P.(with connected appeals)

Case number: Appeal (crl.) 42 of 1954





RESPONDENT: STATE OF U. P.(with connected appeals)

DATE OF JUDGMENT: 11/01/1957


CITATION:  1957 AIR  458            1957 SCR  423

ACT: Implied  repeal-Whether s. 409 of the Indian Penal  Code  is impliedly  repealed  by  s. 5(I)(c)  of  the  Prevention  of Corruption Act, 1947 (11 Of 1947)-Whether the application of s.  4o9  of  the  Indian Penal  Code  to  a  public  servant infringes  Art.  14  of  the  Constitution  Sanction-Whether sanction  under  s. 6 of the Prevention  of  Corruption  Act necessary  for prosecution under s. 409 of the Indian  Penal Code.

HEADNOTE: The  offences under s. 409 Of the Indian Penal Code  and  s. 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. 1. R. [1955] Cal.  236, approved. 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. 5(I)(c) of the Prevention  of  Corruption Act  are distinct and separate there is no  infringement  of Art. 14 Of the 55 424 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  Act, 1947 is not necessary for a prosecution under s. 409 of  the Indian Penal Code. State  v. Pandurang Baburao, A. I. R. (1955) Bom. 451,  Bhup Narain Saxena v. State, A. 1. R. (1952) All. 35 and State v. Gulab Singh, A. 1. R. (1954) Raj. 211, approved. State v. Gurcharan Singh, (,952) Punj. 89, overruled.



JUDGMENT: 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  judgment  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. Agarwala, 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, J. B. Dadachanji, 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. 425 Porus  A.  Mehta  and R. H. Dhebar, for  the  respondent  in Criminal Appeal No. 97 of 1955. 1957.  January 11.  The Judgment of the Court was  delivered by GOVINDA MENON J.-Though these three appeals have been  filed against  the  decisions  of different  courts  and  are  not connected  either  as regards community or  purpose  or  the identity  of  the  accused they have  beer  heard  together, because  the points of law raised in them are identical  and the  arguments  of counsel have proceeded on  common  lines. Hence a common judgment dealing with the legal aspect  would be apt in the circumstances. Criminal  Appeal  No. 42 of 1954 has been  preferred  by  Om Prakash Gupta against the dismissal of his Revision Petition by  the  High  Court of  Allahabad,  thereby  affirming  the appellate  decision of the Sessions Judge of Kumaun  who  in his  turn maintained the sentence of  rigorous  imprisonment for  one year and a fine of Rs. 500 passed on the  appellant by the Special 1st Class Magistrate of Nainital on April 30, 1953, under s. 409 of the Indian Penal Code.  This appellant was a clerk in the Electric Department of Haldwani Municipal Board and the charge against him was that he received  three sums of money: Rs. 242/5/9(Ex.  P. 14) on July 28, 1951, Rs. 70/-  (Ex.  P. 17) on October 19, 1951, Rs. 135/- (Ex.  P. 13) on October 23, 1951. aggregating  to  Rs. 447/5/9 and misappropriated  the  whole amount,  though  his defence was that  having  received  the money,  he  gave  it to his  official  superior,  Electrical Engineer  Pandey; and did not have anything more to do  with the  money.  The Police charge sheet was under ss.  409  and 467  of the Indian Penal Code, but the conviction  was  only under  the  former  section.  The  conviction  and  sentence imposed upon him by the trial court having been confirmed in appeal by the learned Sessions Judge and further having been



affirmed  by dismissal of his revision by the High Court  of Allahabad, have now become the subject of 126 appeal, as special leave has been granted on the question of law raised. Om Prakash, the appellant in Criminal Appeal No. 3 of  1955, had  obtained  leave  to  appeal  from  the  High  Court  of Allahabad against the opinion of a Full Bench of that  court in  Criminal Revision No. 141 of 1951, by which it  affirmed the  order  of the Civil and Sessions Judge  of  Sitapur  in Criminal  Revision No. 5 ,if 1951, holding that  Om  Prakash was  improperly discharged by the learned Magistrate  of  an offence tinder s. 409, Indian Penal Code, and directing  the Magistrate to make a further inquiry into the matter of that offence.   It  may be mentioned that the learned  1st  Class Magistrate   held  that  sanction  was  essential  for   the prosecution  of  Om  Prakash and as the same  had  not  been granted,  the prosecution was not maintainable.   This  view did not find acceptance at the hands of the learned Sessions Judge,  whose  decision was affirmed by the  High  Court  of Allahabad.   The  charge  against him was that  as  a  canal accountant  in a Divisional Engineer’s office  he  committed criminal breach of trust of a certain sum of money. Lal  Ramagovind Singh, the appellant in Criminal Appeal  No. 97  of 1955, was the Director of Agriculture in  the  Indian State  of  Rewa  and for the  offence  of  having  committed criminal  breach  of trust of an amount of Rs.  586/10/-  on December  4,  1948, he was prosecuted under s.  409  of  the Indian  Penal Code, on August 13, 1949, and  after  inquiry, charges  were  framed  against him  on  February  24,  1950, resulting in a judgment of conviction by the trial court  on September  29, 1950, and a sentence of one  year’s  rigorous imprisonment  and  a  fine of Rs. 500.  His  appeal  to  the Sessions  Judge was dismissed on September 29,1951, and  the revision  to the Judicial Commissioner shared the same  fate on  January 16, 1952.  Special leave having been granted  to him, Criminal Appeal No. 97 of 10-55 was the outcome. The first question for consideration is whethers. 409 of the Indian Penal Code, in so far as it applies to     a   public servant  (in this case the three appellants were  admittedly public servants), has been impliedly                             427 repealed by the enactment of ss. 5 (1) (c) and 5 (2) of  the Prevention of Corruption Act II of 1947, and if ’that is so, whether  a prosecution of the appellants for an  offence  of criminal breach of trust without the requisite sanction  and without  conforming to the provisions of the  Prevention  of Corruption  Act,  can  be  legally  sustained.   Two   other questions  have  also  been urged before us  and  they  are: Assuming  that there was no such implied repeal,  would  the application  of s. 409 of the Indian Penal Code to a  public servant  infringe Art. 14 of the Constitution, now that  the provisions  of  the  Prevention of Corruption  Act  and  the procedure laid down thereunder are available to deal with  a breach  of  trust  by a public servant; ’and  next,  if  the appellants  do not succeed on the first two points,  whether the  provision  for sanction required by the  Prevention  of Corruption  Act would also similarly apply to a  prosecution under s. 409 of the Indian Penal Code. What  is  first to be determined is whether s.  409  of  the Indian  Penal  Code,  deals with the same  offence  as  that contemplated under ss. 5(1)(c) and 5(2) of the Prevention of Corruption Act, and if so, has there been an overlapping  of legislation  over  the same field; and has  the  latter  one impliedly  repealed  the  earlier.   For  that  purpose  the



provisions  of  the  two  statutes  have  to  be  succinctly analysed to understand the full scope and the import of  the two. The fasciculus of sections contained in Chapter XVII of  the Indian Penal Code beginning with s. 405 of the Indian  Penal Code  and ending with section 409 of the Indian  Penal  Code deals  with  criminal breach of trust.  Section 405  of  the Indian  Penal Code defines criminal breach of trust  and  s. 409  of  the  -Indian Penal Code is an  aggravated  form  of criminal  breach  of trust when the same is committed  by  a public servant, banker, merchant, etc.  Analysing s. 405  of the Indian Penal Code, into its component ingredients, it is seen that the following essential ingredients are absolutely necessary to attract the operation of the section: (i)  The accused must be entrusted with property or dominion over property; 428 (ii) The   person   so  entrusted  must   (a,)   dishonestly misappropriate or convert to his own use that property, or (b)  dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation (1)  of any direction of law prescribing the mode in which  such trust is to be discharged, or (11) of  any legal contract made touching the  discharge  of such trust. In the above cases he is said to commit a criminal breach of trust. Section  409  of  the  Indian  Penal  Code  lays  down   the punishment  when such criminal breach of trust is  committed by a public-servant, banker, merchant, etc. Now we have to ascertain the provisions of the Prevention of Corruption Act dealing with criminal misconduct. The  preamble of the Act makes it clear that  the  intention was to make more effective provisions for the prevention  of bribery and corruption.  From this itself, it is clear  that the  legislature was alive to the fact that  something  more stringent  and drastic than s. 409 of the Indian Penal  Code was  necessary  in  the case of bribery  and  corruption  by Public servants and it was to effectuate that intention that the  Act was put on the statute book.  The duration of  this piece  of legislation in the first instance was only  for  a period  of five years which later on was extended by Act  II of  1952 for ten years which would mean  that  automatically the Act would expire by about the middle of 1957. Section  3  lays down that offences under ss. 161,  165  and 165-A of the Indian Penal Code which under the provisions of the  Criminal  Procedure Code were not cognizable  are  made cognizable.   Section 5 enacts that where a  public  servant accepts, agrees to or obtains gratification other than legal remuneration, then it shall be presumed unless the  contrary is proved, that he accepted, obtained or agreed to accept or attempted to obtain that gratification or valuable thing  as a  ’motive or reward such as is mentioned in  ,section  161, etc., etc.  Sub-section 2 of s. 4 also deals                             429 with  this presumption.  We are concerned in  these  appeals with  s. 5. Sub-sections I (a) and 1 (b) of s. 5,  which  is designated  as criminal misconduct in discharge of  official duty  by a public servant, deal with persons who  habitually accept or obtain or agree to obtain gratification other than legal remuneration as a motive or reward as mentioned in  s. 161 of the Indian Penal Code.  It is -not necessary to  deal with  these  two subclauses in detail because  there  is  no question  of any acceptance of illegal gratification in  the present  cases  but one thing that has to be  remembered  is



that  these  sub-sections deal with habitual  acceptance  or obtaining,  etc., whereas ss. 161 and 165 deal with  even  a single  acceptance or obtaining.  The result is  that  under ss.  161 and 165 of the Indian Penal Code a prosecution  can be  laid even in the case of a single act by which a  public servant has accepted an illegal gratification, but in  order to  attract  cls.  5 (1) (a) and 5(1)  (b),  there  must  be habitual  commission  of the crime.  Any stray or  a  single instance would not suffice to bring within the ambit of  the section  the offence as contemplated in ss. 5 (1) (a) and  5 (1)  (b).  The result is that the offences under ss.  5  (1) (a)  and  5 (1) (b) are an aggravated form  of  the  offence under ss. 161 and 165 of the Indian Penal Code. As  we  are  concerned with s. 5 (1) (c), the  same  may  be quoted in extenso: "If  he  dishonestly  or  fraudulently  misappropriates   or otherwise converts for his own use any property entrusted to him  or under his control as a public servant or allows  any other person so to do." Section  5  (1) (d) lays down that if a  public  servant  by corrupt  or  illegal  means  or  by  otherwise  abusing  his position as a public servant, obtains for himself or for any other  person any valuable thing or pecuniary advantage,  he commits the offence. Section  5(2)  makes  the  offence  of  criminal  misconduct punishable with imprisonment which may extend to seven years or with fine or with both.  Sub-section (3) is an  important piece  of legislation to the effect that where a  person  is charged  under  s.  5(1) and it is found  that  the  accused person cannot satisfactorily 430 account  for  the  pecuniary  resources  or  property   dis- proportionate to his known sources of income, then  the fact that  he has such extensive pecuniary resources or  property is sufficient to presume, until the contrary is proved, that the accused person was guilty of criminal misconduct in  the discharge  of  his official duty and a conviction  for  that offence shall not be invalid by reason only that it is based solely  on such presumption.  It is clear,  therefore,  that where a person is charged with criminal misconduct and it is seen  that he is in possession of property or  income  which could  not  have  been amassed or  earned  by  the  official remuneration  which  he  had obtained,  then  the  court  is entitled to come to the conclusion that the amassing of such wealth  was due to bribery or corruption and the  person  is guilty  of  an  offence  of  criminal  misconduct.   Such  a presumption  cannot  be drawn in the case of  a  prosecution under ss. 161, 165 and 409 of the Indian Penal Code. Section 6 provides that for the prosecution of an offence of criminal misconduct under s. 5(2) or for an offence under s. 161  or 165 of the Indian Penal Code, previous  sanction  is necessary  of  either the Central Government  or  the  State Government   or  the  authority  competent  to  remove   the Government  servant.  The last section of the statute  is  a departure   or  deviation  from  the  procedure  till   then obtaining  in a criminal case and thereby an accused  person is  held competent to be a witness on his  behalf.   Whereas under  s.  342, Indian Penal Code, as it  stood  before  the recent  amendment,  no  accused person was  entitled  to  be administered  on oath and thereby competent to testify in  a court  of law in a case in which he is accused; under  s.  7 any  person charged with an offence punishable under s’  161 or s. 165 or 165-A of the Indian Penal Code, or under sub-s. (2)  of  s.  5 of the Prevention of  Corruption  Act,  is  a competent  witness for the defence and may give evidence  on



oath  in  disproof of the charges made against  him  or  any person  charged  together with him at the  same  trial;  and there are also certain safeguards provided in the matter  of giving such testimony. 431 We have now referred to the relevant provision of Act II  of 1947  in  which  the  most important  one  for  our  present consideration is s. 5(1)(c).  It will be useful to institute a comparison between s. 405 of the Indian Penal Code -and s. 5(1)(c)  of Act II of 1947.  The question of entrustment  is common  under s. 405 of the Indian Penal Code and  under  s. 5(1)(c) of the Prevention of Corruption Act.  Whereas  under section 405 of the Indian Penal Code dishonest misappropria- tion or conversion to his own use of that property would  be the  necessary  criterion,  with regard to  s.  5(1)(c)  the misappropriation or conversion may be either dishonestly  or fraudulently or otherwise. Then again there is a further fact under s. 5(1)(d) that  if the public servant by corrupt or illegal means or  otherwise abuses  his  position as a public servant  and  obtains  for himself  or  for  any other person  any  valuable  thing  or pecuniary: advantage, then he will be guilty of the offence. We  may,  therefore, give below the ingredients of  the  two sections:- Section 405 of the Indian Penal Code. 1.Entrusting  any person with property or with any  dominion over property. 2.   The person entrusted (a)  dishonestly  misappropriating or converting to his  own use that property. (b)  dishonestly  using  or disposing of  that  property  or wilfully suffering any other person to do so in violation- (i)of  any direction of law prescribing the, mode  in  which such  trust  is  to  be discharged, or (ii)  of any legal contract made touching the  discharge  of such trust. Prevention of Corruption Act II of 1947: Section 5(1): (c)   dishonestly   or  fraudulently   misappropriating   or otherwise converting for his own use any property  entrusted to him, or under his control as a public servant or allowing any other person to do so. (d)  If  he  by  corrupt or illegal means  or  by  otherwise abusing his position as a public servant, 56 432 obtains  for  himself or for any other person  any  valuable thing or pecuniary advantage. Now  dishonestly’  as defined in s. 24 of the  Indian  Penal Code  connotes the doing of anything with the  intention  of causing  wrongful  gain to one person or  wrongful  loss  to another  person and s. 25 defines I fraudulently as doing  a thing  with  intent to defraud but lot, otherwise.   It  is, therefore,  clear that s. 5 (1) (e) is wider in  ambit  than section 405 of the Indian Penal Code. The  argument of the learned counsel for the  appellants  is that  though  the  offences under  the  two  provisions  are identical,  there  are some advantages where  the  trial  is under  s. 5 (1) (e) and certain disadvantages as well.   The advantages are:- (1)  The punishment for criminal misconduct is less than the punishment for breach of trust by a public servant; (2)  It  is  necessary  to obtain previous  sanction  for  a prosecution  under  s.  5 (1) (c), whereas in  the  case  of breach  of trust by a public servant, such sanction  may  or may not be necessary;



(3)  The  investigation  of an offence under s.  5  (1)  (c) should  be by an officer of a higher grade though that  does not obtain so far as the present appeals are concerned; and (4)  The accused person has the right of giving evidence  on his behalf. The  disadvantages are that in such a trial the  presumption referred  to in s. 4(3) can be drawn against the accused  if it  is  found that he has pecuniary resources  for  property disproportionate to his known sources of income and also the two  presumptions  regarding the acceptance  of  a  valuable thing from any person by a public servant as contemplated in sub-ss. (1) and (2) of s. 4. These differences, according to the  learned  counsel for the appellant, do not in  any  way make  the  offence  under s. 5  (1)(c)  different  from  the offence under s. 409 of the Indian Penal Code, but that only another  method of procedure is prescribed and  a  different mode  of  approach is laid down when an offence under  s.  5 (1)(c) is enquired into or tried. 433 Mr. Isaacs strenuously urges that if there are two different statutes, one enacted later than the other, and if the later statute  deals with the same subject matter, the two  cannot stand  together  and  the earlier  one  being  redundant  or repugnant must be deemed to have been repealed.  The  result is  that  whereas  in this case  there  are  penal  statutes dealing with the same subject matter’ and the penalties  and procedure  prescribed  by the, statutes are  different  from each  other, then the later one must be taken to  repeal  or supersede the earlier. Reliance  is  placed on certain  observations  contained  in Zaverbhai Amaidas v. The State of Bombay (1) containing some quotations  from  the  judgment of Goddard J.  in  Smith  v. Benabo  (2)  to  the following,  effect:-"That  if  a  later statute  again  describes an offence created by  a  previous one,  and     imposes a different punishment, or varies  the procedure,  the  earlier statute is repealed  by  the  later statute: see Michell v. Brown(3), per Lord Campbell and also Attorney-General  for  Ontario v. Attorney-General  for  the Dominion(4 ). On  the  footing that s. 5 (1) (c) of Act II of  1947  deals with  the  same subject with regard to, public  servants  as that portion of s. 409 of the Indian Penal Code, Mr.  Isaacs drew  our attention to The State v. Gurcharan Singh(5).   In that  case Falshaw J. in delivering the judgment of a  Bench consisting of him-self and Khosla J. held that so long as s. 5 of Act 11 of 1947 remained in force, the provisions of  s. 409  of  the  Indian Penal Code, so far  as  it  related  to offences  by public, servants, stood repealed.  The  learned Judge  after  referring  to the various  provisions  of  the Prevention  of Corruption Act came to the above  conclusion. After adverting to s. 26 of the General Clauses Act and  its counterpart,  s.  33  of the  Interpretation  Act  and  also passages  from  Maxwell on Interpretation of  Statutes,  the learned  Judge  was of opinion that it is  not  possible  to infer that there was no implied repeal. Before  we advert to the Indian cases, the first thing  that has to be remembered in this, connection is that (1)  [1955]  1 S.C.R. 799 at pp. 807-809.  (4)  [1896]  A.C. 348. (2) [1937] 1 K.B. 518.             (5) 1952 Punj. 89. (3)  [1858] 1 E. & E. 267,274; 117 R.R. 206. 134 he, Prevention of Corruption Act being a temporary one,  the legislature would not have intended in the normal course  of



things  that  a temporary statute like the one  in  question should  supersede  an enactment of antiquity,  even  if  the matter covered the same field.  Under s. 6(a) of the General Clauses  Act if by efflux of time the period of a  temporary statute which had repealed an earlier statute expires, there would not be a, revival of the earlier one by the expiry  of the temporary statute. A  Full  Bench  of the Bombay High Court  in  The  State  v. Pandurang  Baburao  (1) held that the language used  by  the legislature in s. 5 (4) of the Prevention of Corruption  Act clearly  negatived  any  suggestion  that  the   legislature intended  to repeal the provisions of s. 409 of  the  Indian Penal  Code.   It  cannot also be held that s.  409  of  the Indian  Penal Code if; impliedly repealed by the  Prevention of  Corruption Act because it is impossible to say that  the provisions  of the two are wholly incompatible or  that  the two   statutes   together  would  lead  to   wholly   absurd consequences.  Therefore, it was open to the prosecution  to proceed  with a trial under s. 409 of the Indian Penal  Code or  under s. 5(2) of the Prevention of Corruption  Act  even before  the Amendment of the latter Act by Act LlX  of  1952 and of the prosecution was launched under s. 409 and if  the status of the accused was such that no sanction was required under  the provisions of the Criminal Procedure  Code,  then the  prosecution  is  good  and  the  conviction  Is  proper notwithstanding  the fact that if the prosecution  had  been launched   under  s.  5(2),  a  sanction  would  have   been necessary.   The learned Judges dissented from  the  opinion expressed  by  Falshaw J. in The state  v.  Gurcharan  Singh (supra)  and  also overruled certain earlier  Bombay  cases. This court is in agreement with the expression of opinion by the  learned Chief Justice of the Bombay High Court  in  the above Full Bench decision. Ramaswami  J.  of  the  Madras  High  Court  in  Be.  V.  V. Satyanarayanamurthy(2)  came  to  the  conclusion  that   s. 5(1)(c) of the Prevention of Corruption Act (1) A.I.R. [1955] Bom.451. (2) A.L.R. [1953] Mad. 137. 435 does  not  repeal s. 409 of the Indian Penal  Code,  and  he accordingly dissented from the view taken in the of case The State v. Gurcharan Singh (supra). The  Calcutta High Court in Amarendra Nath Roy v. The  State (1)  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 lone voice of  the  -Punjab High  Court in State v. Garcharan 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. 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  constituting  the two  offences and a clear comparison and contrast  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 and 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 (1)  A.I.R. [1955] Cal. 236. (2)  A.I.R. [1953] Cal. 681. (3)  A.I.R. [1952] All. 35. (4)  A.I.R. [1954] All.  80. 436 than  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 in s. 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 ins. 405 of the   Indian   Penal  Code.   The   words   ’dominion’   and ’entrustment’  connote  two different things.   The  word  I dominion’ is not in s. 5(1)(c).  We have already stated that the word ’.fraudulently’ is not present in s. 405 and in  s. 5(1)(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  I  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  positive  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  contemplates "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.  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. 405 of the Indian Penal  Code. In  this connection it is useful to compare ss. 5(1)(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 437 offence  by  the  creation of the new  offence.   These  two offences can co-exist and the one will not be considered  as overlapping  the other.  A course of’ conduct can be  proved when  a person is arraigned under ss. 5(1)(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 let 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 conscious 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  Judges, 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  last  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 438 (a)  The State v. Pandurang Baburao (supra), (b) Bhup Narain Saxena v. State (supra),        and (c) State v. Gulab Singh(1). We  are  in  agreement with the view  expressed  by  Hari  ) Shankar and Randhir Singh JJ. that no sanction is  necessary and  the view expressed by Mulla J. to the contrary  is  not correct. Criminal Appeal No. 3 of 1955 will accordinly be  dismissed. Criminal  Appeals  Nos. 42 of 1954 and 97 of  1955  will  be heard on merits.