Report No. 60
14.13. Mysore case, section 161, I.P.C. and section 5, Penal Code.-
The absence of the requirement of "same offence" is illustrated by a Mysore case, Gandhi v. State of Mysore, AIR 1960 Mys 111 (DB). The appellant in both the appeals was the same person. He had been convicted under section 161, Indian Penal Code of having accepted a bribe of Rs. 250 and sentenced to fine and imprisonment. He was also (at a subsequent trial) tried for the offence of criminal misconduct as defined in section 5 of the Prevention of Corruption Act, 1947 and convicted under section 5 of the Act, and sentenced to fine and imprisonment. The Special Judge had ordered that the sentence of imprisonment on the second conviction should run concurrently with the earlier. This was an appeal against this conviction and sentence.
It was urged by counsel for the appellant that since the accused was convicted under section 161, I.P.C. for the acceptance of the bribe of Rs. 250, he could not again be convicted under section 5 of the Prevention of Corruption Act. Reliance was placed in support of this argument on section 26 of the General Clauses Act and on Article 20(2) of the Constitution. The argument was rejected, and it was held by the Mysore High Court that the "prohibition is not against punishment more than once, for different offences". In that connection, the court added:
"The offence punishable under section 161 of the Indian Penal Code is different from the offence of criminal misconduct punishable under section 5(2) of Prevention of Corruption Act, though it may be that some of the ingredients of these two offences are common".
Following a Supreme Court case,1 the High Court held that the offence created by section 5 of the Prevention of Corruption Act was "an offence unknown to any of the provisions of the Indian Penal Code dealing with bribery or corruption." Therefore, the offence under section 5(1)(d) was quite distinct from the offence under section 161, I.P.C. And, since they were distinct offences, section 26 of the General Clauses Act, was held not to apply.
On this reasoning, conviction under section 5 was upheld.
1. Venkatctraman v. State, AIR 1959 SC 107.
14.14. It may be pointed out that this Mysore case would fall within the second category1 of offences which, being not the same but being distinct, could be punished separately. In this case, for the conviction under section 161, I.P.C. (which provides for imprisonment of either description upto 3 years or fine or both), the accused had been sentenced to one year's rigorous imprisonment and a fine of Rs. 5,000. On the conviction under section 5(2) of the Prevention of Corruption Act (which provides for imprisonment of upto 7 years and fine), he had been sentenced to one year's rigorous imprisonment and a fine of Rs. 75,000. Therefore, the aggregate did not exceed the punishment that could be awarded for any one of such offences.
1. Paras. 14.7 and 14.8, supra.