- (1.) I have had the advantage of reading the judgment of my learned brother, Mulla J.
(2.) OM Prakash, who has come up in revision, was a divisional accountant in the Sarda Canal, sitapur section, and in that capacity he was entrusted with Government monies. On an inspection of the accounts by the Accounts Officer, it was discovered that certain sums of money amounting to Rs. 1,491/9/- had been embezzled by the applicant. He reported the matter to the officers of the canat department, who handed over the case to the police with the result that, after investigation, the applicant was prosecuted for offences under Section 409 and other sections of the Indian Penal Code. He was tried in the Court of Sri Abul Maqtadir, a Magistrate of the first class, Sitapur. At the trial, the applicant pleaded that he should have been prosecuted and tried for an offence under Section 5 (1) (c), Prevention of Corruption Act (2 of 1947) and not under the general law. The other plea raised was that the applicant could not be prosecuted without previous sanction of the Accountanl General, and as no sanction had been obtained, it vitiated the trial. The defence plea found favour with the trial Court, who discharged the accused holding that the applicant should have been prosecuted under the Prevention of Corruption Act 2 of 1947, and that the trial under the general law was, therefore, improper, On behalf of the State the matter was taken up in revision and the learned Additional Sessions Judge who heard the revision held that the prosecution of the applicant under the provisions of Section 409, I. P. C. , was quite valid. The result was that the Additional Sessions Judge directed the Magistrate to proceed with the enquiry of the case in accordance with law. Dissatisfied with the order, the applicant filed a revision to this Court. When the revision came up for hearing before a Division bench of this Court, it decided to refer the case to a Full Bench in view of the importance of the questions involved in the case.
(3.) THE points that arise for consideration are three: " (I) Whether Section 5 (l) (c) of the Special Act 2 of 1947, 'pro tanto' repealed Section 409, I. P. C. , in its application to" public servants. (2) Whether Article 14 of the Constitution is infringed if the accused is tried under the general law. (3) Whether the applicant could not be prosecuted for an offence under Section 409, I. P. C. , without the erevious sanction of the proper authority. ";