Fazl Ali, J. - (1.) This is an appeal by State of M. P. by certificate granted by the High Court of Madhya Pradesh under Art. 134 (1) (c) of the Constitution against its judgment and order dated April 12, 1973 by which the respondent, who was convicted by the Special Judge, Indore, under, Section 420 I.P.C, and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and sentenced to one year rigorous imprisonment on each count, was acquitted by the High Court. Briefly put, the prosecution case against the respondent was that he was an employee in the Heavy Electricals (India) Ltd, Bhopal, which is a Government company and was working at the relevant time as Personal Assistant to Shri K. C. Rae, Manager, Purchasing and Main Stores of the Company. Mr. Rae was allotted a new Fiat Car at Bombay on priority basis and the respondent and Mr. Rae had arrived at Bombay to Sake delivery of the car on March 10, 1965 and they stayed there till March 13, 1965. Mr. Rae, however, left on the morning of March 13, 1965 directing the respondent to obtain delivery of the Fiat Car on March 14, 1965 and then proceed to Indore. Ultimately the car was brought to Bhopal on March 16, 1965 at about 2-30 P.M. On March 23, 1965 the respondent submitted his T.A. bill Ext. P-21 showing his departure from Bombay on March 16, 1965 by car at 2-00 P.M. and arrival at Bhopal on March 17, 1965 at 6-30 P.M. and claimed daily allowance at the rate of Rs. 12/- per day for halt at Bombay. The respondent accordingly received the full amount of the T.A. Bill on April 3, 1965. The allegation against the respondent was that he had prepared a false T.A. Bill and had cheated the Government Company and was guilty of serious criminal misconduct as envisaged by the Prevention of Corruption Act. The learned Special Judge, Indore, accepted the prosecution case and convicted the respondent as indicated above. The respondent then filed an appeal before the High Court of Madhya Pradesh which allowed the appeal, mainly on the ground that as the respondent was not a public servant as contemplated by the provisions of the Prevention of Corruption Act, his trial under the said Act was without jurisdiction. The High Court, however, left it open to the Government to prosecute the respondent under the relevant law, if necessary. It is against this order of the High Court that the state of M.P. has filed this appeal before us after obtaining certificate of fitness from the High Court.
(2.) The short point taken by the respondent before the High Court was that as the word "public servant" has not been expressly defined in the Prevention of Corruption Act, 1947, it has borrowed the definition from Section 21 of the Indian Penal Code, such a definition amounts to legislation by incorporation, and therefore any subsequent amendment, addition or alteration in the Indian Penal Code would not at all affect the incorporated provision in the Prevention of Corruption Act. The High Court seems to have readily accepted this contention and has accordingly held that as the various amendments to Section 21 of the Indian Penal Code cannot apply to the provisions of the Prevention of Corruption Act, and therefore the respondent being only an employee of the Government Company does not fall within the ambit of public servant as defined in Section 21 of the Indian Penal Code prior to the amendment. In order to appreciate this point, it may be necessary to set out the scheme of the Prevention of Corruption Act - hereinafter referred to as 'the Act' - with particular reference to Section 21 of the Indian Penal Code - hereinafter referred to as 'the Penal Code' - which has been incorporated in the Act. To begin with, the preamble to the Act clearly shows that the Act has been passed for more effective prevention of bribery and corruption, bribery being a form of corruption. Section 2 of the Act runs thus: "For the purposes of this Act "public servant" means a public servant as defined in Section 21 of the Indian Penal Code." It would be seen that Section 2 of the Act completely incorporates the provision of Section 21 of the Penal Code in order to define a "public servant". The Legislature in its wisdom did not think it necessary to give a separate definition of "public servant" in the Act, but in order to achieve brevity in legislation it incorporated the provision of Section 21 of the Penal Code into it. Before the Criminal Law (Amendment) Act, 1958 (Act No. II of 1958) was passed Section 21 of the Penal Code consisted only of eleven clauses and an employee under the Corporation or a Government Company did not fall within the purview of any of the clauses of S. 21 of the Penal Code. Thus when the Legislature incorporated the provisions of Section 21 of the Penal Code in the Act in the year 1947, clause 12 was not there at all on the statute book of the Penal Code. The High Court took the view that as the Act had incorporated the definition of the Penal Code prior to its amendment, therefore, it became an integral and independent part of the Act and would remain unaffected by any repeal or change in the previous Act, namely the Penal Code. It appears, however, that by virtue of the Criminal Law (Amendment) Act, 1958, twelfth clause was inserted in S. 21 of the Penal Code, which runs as follows: "Twelfth. -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." This Act also amended certain provisions of the Prevention of Corruption Act, 1947 in enlarging the concept of criminal misconduct but it did not at all amend any portion of Section 2 of the Act, perhaps the reason being that in view of the enlargement of the definition of "public servant" in Section 21 of the Penal Code express amendment of S. 2 of the Act was not necessary.
(3.) By virtue of the Anti-Corruption Laws. (Amendment) Act, 1964 (Act No. XL of 1964) clause 12 of Section 21 of the Penal Code was substituted 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.";