M.N. Chandurkar, J.@mdashThe appellant, who was a Junior Clerk in the Government College of Education at Bhandara, has filed this appeal challenging his conviction u/s 5 (1)(d) read with section 5 (2) of the Prevention of Corruption Act, 1947. He was originally charged for the offence u/s 161 of the Indian Penal Code also but he has been acquitted of that charge. According to the prosecution, Hariram (P.W. 2) had passed his B. A. Examination in 1969 and was residing in the Shukrawari Ward at Bhandara, in which Chintaman (P.W.3), a peon in the Government College of Education where the accused was employed, was also living. It is alleged that Chintaman suggested to complainant Hariram that he should seek admission to the College of Education, and on 31-3-1970 the complainant and Chintaman met the accused near the State Bank of India when the complainant was introduced to the accused and the accused is alleged to have told Chintaman that he would help the complainant for getting admitted to the college. An admission form (Ex. 11) was obtained by the complainant on 1-4-1970 from the office of the College and was presented at the College on 13-4-1970. The prosecution alleged that on 10-4-1970 Chintaman told the complainant that the accused would help him to get admission provided he paid Rs. 50/- to him. On 14-4-1970, i. e. the day after the form was submitted, the complainant is alleged to have gone to the College and the accused is alleged to have taken him and Chintaman by the side of the well and demanded Rs. 50. Though the complainant initially expressed his inability to raise such a large amount, he is said to have agreed finally, and it was then settled that the amount would be paid in the house of Chintaman the next day at about 11 a.m. or 12 noon. The complainant then approached the Anti-Corruption Department at 8 p.m. on the same day and narrated this complaint to P. S. I. Kothe (P.W.6) who recorded it and the complaint is Ex. 14. It was decided that a trap would be laid the next morning. P. S. I. Kothe obtained permission of the Judicial Magistrate First Glass, for investigating this offence. He collected two panchas-Sudhakar (P. W. 4) and one Bhayyalal who is not examined. The amount of Rs. 50 was made available by P. S. I. Kothe himself and the currency notes were coated with phenolphthalein powder and the usual formalities which were gone through were recorded in the first Panchanama (Ex. 15). The complainant was instructed to go to the house of Chintaman and sit in the front room and pay the amount if it was demanded by the accused. If the amount was accepted, the agreed signal to be given was that the complainant was to cough thrice. Behind the front room of the house of Chintaman there is another room, and according to the prosecution, P. S. I. Kothe, along with the two panchas Sudhakar and Bhayyalal, sat in the rear room with the connecting door closed. It is alleged that the connecting door had a hole and chinks through which the panchas and the Sub-Inspector could see what was going on in the front room. The office in which the accused and Chintaman were employed used to work in the morning hours and admittedly Chintaman and the accused came to the house of Chintaman at about noon time when they found the complainant in the room. The complainant is alleged to have asked the accused if he would do his work, on which the accused is said to have assured the complainant that he was the wholesale authority in the College and he could get it confirmed from the other Lecturers in the College, and thereafter the accused demanded the amount of Rs. 50 which was paid by the complainant. It is not in dispute that the currency notes of Rs. 50 were placed on the thigh of the accused, and after the money was placed on the thigh by the accused after counting the currency notes, on the agreed signal being given, the two panchas and P. S. I. Kothe appeared on the scene and the accused was apprehended. The accused was told not to move or touch the currency notes which were on his thigh. Then the usual formalities of comparing the numbers of the currency notes as originally noted in the first panchanama (Ex. 15) and testing the hands of the panchas, the Sub-Inspector and the accused were gone through. It is also admitted that on the accused putting his hands in the solution of washing soda, the colour turned purple. The part of the pyjama where the currency notes were placed was also tested by sprinkling the solution of washing soda and it turned purple. The currency notes were seized and the second panchanama drawn up is Ex. 16. Thus, according to the prosecution the accused had accepted Rs. 50 as illegal gratification as a motive or reward for showing to the complainant the favour of getting him admitted to the College and that he had received this bribe money by corrupt and illegal means or otherwise by abusing his position as a public servant. Accordingly charges u/s 161 of the Indian Penal Code and section 5 (1)(d) read with section 5 (2) of the Prevention of Corruption Act were framed against the accused.
2. The prosecution story rests on the evidence of Hariram (P. W. 2), Chintaman (P. W. 3), Sudhakar (P. W. 4) and P. S. I. Kothe (P. W. 6). The Special Judge, Bhandara, accepted the evidence of all the witnesses and came to the conclusion that the accused who was a public servant had obtained bribe by wielding his position as a public servant and by making a representation that he was the wholesale authority in the College and that he could help candidates who wanted admission to the College. He was, therefore, convicted of the offence u/s 5 (1)(d)read with section 5 (2) of the Prevention of Corruption Act, But having found that the accused did not have the power to admit any candidate, the Special Judge took the view that the bribe was not in connection with the exercise of an official function and, therefore, it was not proved that he was guilty of the offence u/s 161 of the Indian Penal Code. He was accordingly acquitted of that offence. He was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100, or in default, to suffer further Rigorous imprisonment for one month, for the offence u/s 5 (1)(d) read with section 5 (2) of the Prevention of Corruption Act. This appeal has now been filed by the accused challenging his conviction.
3. At the outset, Mr. Pendse, learned counsel appearing on behalf of the accused, contended that the accused could not have been convicted of the offence u/s 5 (1)(d) read with section 5 (2) of the Prevention of Corruption Act because he cannot be said to be a "public servant" as contemplated by section 2 of the said Act. The argument is that u/s 2 of the said Act, "public servant" is defined as meaning a public servant as defined in section 21 of the Indian Penal Code, and since no further amendments have been made in section 2, the only person who could be prosecuted for an offence under that Act would be a public servant as defined in section 21 of the Indian Penal Code as it stood on the date on which the Prevention of Corruption Act, 1947, came into operation. The Prevention of Corruption Act came into operation in March 1947, and according to Mr. Pendse, what must be found out is whether the accused could be held to be a public servant within the meaning of section 21 of the Indian Penal Code as it stood in March 1947. The basis of this argument is the decision of the Privy Council in
Where certain provisions from an existing Act have been Incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.
Now, section 21 of the Indian Penal Code, as it originally stood, consisted of 11 clauses. Section 21 provided that the words "public servant" denotes a person falling under any of the descriptions given in the several clauses in that section. For the purposes of the present controversy, only the ninth and the Twelfth clauses are material. The ninth clause originally read as follows :
Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the Government) or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty.
(Italics is mine).
The portion underlined, however, came to be deleted by Act 40 of 1964. But prior to that section 21 came to be amended by introduction of the Twelfth clause which was as follows:
Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as defined in section 617 of the Companies Act, 1956.
Parliament passed Act 40 of 1964 which was known as the Anti-Corruption Laws (Amendment) Act, 1964. By this Act not only the provisions of section 21 of the Indian Penal Code were sought to be amended but the provisions of the Criminal Law Amendment Ordinance, 1944; the Delhi Special Police Establishment Act, 1945; the Prevention of Corruption Act, 1947, and the Criminal Law Amendment Act, 1952, were also sought to be amended. Certain amendments were made in the third and the fourth clauses, to which it is not necessary to refer. The material amendments were made in the ninth clause and for the existing twelfth clause, a new twelfth clause was substituted. The amendment in the ninth clause consisted of deleting the portion underlined above. The twelfth clause which was substituted was as follows:
Twelfth.-Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a Corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956.
The effect of the substitution of the twelfth clause was that what was deleted from the ninth clause was re-enacted as sub-clause (a) with the modification that for the word "officer" the word "person" was substituted, and what was originally the twelfth clause was re-enacted as sub-clause (b) of the twelth clause.
4. Now, the argument is that though it is true that the accused was a person who was covered by sub-clause (a) of clause Twelfth of section 21 of the Indian Penal Code, this twelfth clause having come on the statute Book only in 1964, the inclusion of that clause in section 21 cannot have the effect of that clause being read as a part of the definition of "Public servant" in section 2 of the Prevention of Corruption Act. Therefore, according to the learned counsel a charge u/s 5 (1)(d) read with section 5 (2) of the said Act could not have been framed against him at all. The question whether this addition of the twelfth clause in section 21 of the Indian Penal Code automatically becomes a part of the definition in section 2 of the Prevention of Corruption Act has been exhaustively argued by Mr. Pendse primarily on the authority of the decision of the Privy Council referred to earlier. It is, however, contended on behalf of the State that even assuming that the contention of the learned counsel for the appellant is accepted, the accused would be covered squarely by the ninth clause as it stood in 1947. The latter part of the ninth clause fell for consideration before the Supreme Court in
(1) whether he is in the service or pay of the Government, and
(2) whether he is entrusted with the performance of any public duty, and it was observed that if both these requirements were satisfied it matters not the least what was the nature of his office, whether the duties he was performing were of an exalted character or very humble indeed. The decision in Monterio''s case, therefore, lays down that the test laid down in the decision of this Court in Beg v. Ramajirao Jivbaji (cit. supra) was a narrow one and Wherever the two tests referred to above are satisfied, a person would be a public servant within the meaning of the term as defined in the ninth clause of section 21. It is important to point out that a decision of the Calcutta High Court in Nazamuddin v. Queen Empress ILR 28 Cal. 344 in which a peon attached to the office of the Superintendent of the Salt Department in the district of Mazaffarpur was held to be a public servant within the meaning of the terms of the close portion of the ninth clause of section 21, has been cited with approval. In that case the Calcutta High Court held that an "officer in the service or pay of Government" within the terms of section 21, Indian Penal Code, was one who was appointed to some office for the performance of some public duty, and in that sense the peon was held to fall within the ninth clause of section 21. Now, even assuming, therefore, that the learned counsel for the appellant is right in his contention that for the purposes of the instant case section 21 must be read as it stood in 1947, which meant that the latter part of the ninth clause stood as it was, it is difficult to see why the appellant could not be a public servant within the meaning of the ninth clause. It is not disputed that the appellant was employed in the College which was a Government College, and when he held the office of a clerk in that College, be was obviously employed for the performance of a public duty. The two tests laid down by the Supreme Court in Monterio''s case were, therefore, satisfied.
5. Even otherwise, it is not possible to accept the contention that the twelth clause of section 21 must be left out of consideration for the purpose of deciding the question whether the accused was a public servant or not. The process by which a part of the ninth clause was deleted and it was re-enacted with some modification in the form of sub-clause (a) of the twelfth clause and the original twelfth clause was also deleted and was re-enacted in the form of sub-clause (b) of the twelfth clause, was, in my view, a process to which the principle contained in section 8 of the General Clauses Act, 1897, would clearly be attracted. Sub-section (1) of section 8 of the General Clauses Act provides:
Where this Act, or any Central Act or Regulation made alter the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be constructed as references to the provision so re-enacted.
Section 8, therefore, contemplates that the principle contained therein applies in a case not only where the whole enactment has been repealed and re-enacted with or without modification, but also where any provision of a former enactment is repealed and is re-enacted. In Act 40 of 1964 there is no indication of an intention contrary to the principle contained in section 8 of the General Clauses Act. On the contrary, the intention positively appears to be that the Legislature wanted the amendments to the several enactments to be carried out with a view to make adequate provisions relating to prevention of corruption. The Act itself is styled as "The Anti-Corruption Laws (Amendment) Act, 1964". It could not, therefore, have been the intention of the Legislature while enacting the Anti-Corruption Laws (Amendment) Act that when section 21 of the Indian Penal Code was being amended by providing that every person who was in the service or pay of the Government was to be a public servant, that amendment was not to ensure for working out the provisions of the Prevention of Corruption Act. The object appears to be to give effect to the decision of the Supreme Court in Monterio''s case, and by substituting the word "person" for the word "officer" the law as declared by the Supreme Court in Monterio''s case has been given effect to. It is no doubt true that in the Privy Council decision relied upon it has been held that in case of a referential legislation any amendment made in the prior Act does not necessarily come to be incorporated in the latter Act in which for certain purposes a reference is made to the earlier Act. The decision of the Privy Council is clearly distinguishable because that was a case in which a question about the applicability of the principle in section 8 of the General Clauses Act was not involved. The context in which the decision of the Privy Council was given was examined by the Supreme Court in
But their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of State, and their Lordships are not prepared to hold that the sub-section in question, which was not enacted till 1921, can be regarded as incorporated in the local Act of 1911. It was not part of the Land Acquisition Act when the local Act was passed, nor in adopting the provisions of the Land Acquisition Act is there anything to suggest that the Bengal Legislature intended to bind themselves to any future addition which might be made to that Act. It is at least conceivable that new provisions might have been added to the Land Acquisition Act which would be wholly unsuitable to the local code. Nor, again, does Act 19 of 1921 contain any provision that the amendments enacted by it are to be treated as in any way retrospective, or are to be regarded as affecting any other enactment than the Land Acquisition Act itself. Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt.
...........In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second: see the cases collected in ''Craies on Statute Low'', Edn. 3, pp. 349-50, This doctrine finds expression in a common form section which regularly appears in the Amending and Repealing Acts which are passed from time to time in India.
X X X X X
It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.
It is on this last part of the observations that heavy reliance was placed before me. But so far as the present case is concerned, I have already pointed out that the decision in the instant case turns on the applicability of the principle in section 8 of the General Clauses Act because this is not a case where merely sub-clause (a) of the twelfth clause has been added for the first time but that that part of the clause was already there in the ninth clause and it has only been re-enacted with slight modification as a part of the twelfth clause. There is further a clear intention on the part of the Legislature by enacting the Anti-Corruption Laws (Amendment) Act, 1964, to provide that the definition of "public servant" in section 21 of the Penal Code had to be applied as amended in section 2 of the Prevention of Corruption Act. In view of the positive enactment of the Anti-Corruption Laws (Amendment) Act, the decision of the Privy Council can be of no assistance to the appellant.
6. There are two other decisions on which reliance is placed, in which the principle enunciated in the Privy Council decision has been given effect to. These are
Any person making any payment in compliance with a notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the income tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.
The question which fell for determination before the High Court was whether sub-section (5A) of section 46 which was incorporated in 1948 in the income tax Act applied to the Excess Profits Tax Act and whether the Excess Profits Tax Officer was empowered to recover arrears of excess profits tax by the mode provided therein. In that context it was held, relying on the decision of the Privy Council, that the Amendment Act of 1948 did not expressly apply the amendment of section 46 to the Excess Profits Tax Act and the Excess Profits Tax Act could function and did function effectually without the addition introduced by sub-section (5A), and, therefore, sub-section (5A) of section 46 of the income tax Act did not apply to the Excess Profits Tax Act and the Excess Profits Tax Officer had no authority to call upon the defendant in that case to pay the amount due to the plaintiff and the payment by the defendant to the Union of India of the debt due to the plaintiff towards the liability of the plaintiff to the Union of India for excess profits tax did not discharge the defendant from its debt due to the plaintiff under the contract. The decision in Chhaganlal Rathi''s case also held that sub-section (5A) of section 46 of the income tax Act having been enacted only in 1948 did not become incorporated into the Excess Profits Tax Act and, therefore, could not apply to the Excess Profits Tax Act, Now, both these decisions involve the application of the principle laid down by the Privy Council, but as already pointed out above, the principle laid down in the Privy Council decision is of no assistance to the appellant in the instant case and consequently the two decisions relied upon will also not be of any assistance. Therefore, the contention that the appellant was not a "public servant" within the meaning of section 2 of the Prevention of Corruption Act must be negatived.
