P (PLP)

At the time of hearing before the Division Bench, learned counsel for the accused respondent did not rely on the second argument which he originally thought was deducible from the first as a corollary. On the contrary, he relied on those decisions according to which the words save as otherwise provided by this Code " in section 369 made it possible to alter or review a judgment under subsection (6) of section

439. The learned Advocate‑General contended, on the other hand, that the saving clause applied only to express provisions for review or appeal, not to subsection (6) of section 439, where there is no actual provision for review or alteration of judgment but which might possibly lead to such result if not properly interpreted. Thus under section 434 (which was repealed in 1943), where a, Single judge in the exercise of original juris diction convicted a person but referred any question of law to a larger Bench, such Bench, could review the entire case and alter the sentence. Again, under section 449, where the High Court tries a case by jury, a regular appeal lies from its decision to a Bench of two judges. So also, section 411‑A provides for an appeal from a Single judge exercising criminal jurisdiction to a Division Bench. No such provision was made in subsection (6) of section 439, which merely gave a right to the accused to show cause against his conviction if he were called upon, to show, cause why his sentence should not be enhanced ; but if he has already enjoyed that right, the matter ends there. Authorities exist on both sides, and I propose examining those on which the parties placed reliance. In Emperor v. Mangal Naran (49 Bombay 450), the High Court had, while admitting a jail appeal, issued notice of enhancement, and when the case came up for hearing before a Division Bench, Macleod, C. J., observed that it was undesirable to issue notice of en hancement before hearing the appeal and dismissing it, for a sentence is enhanced in the exercise of revisional jurisdiction. "If, after an appeal has been heard on its merits and dis missed, a notice .to enhance the sentence is issued, the accused ‑has still the right to show cause against his conviction." The point was not elaborated any further and no reference was made to section

369. In Emperor v. Jorabhai (50 Bombay 783), the High Court had dismissed the appeal and‑ then issued notice of enhancement at the instance of the Government Advocate. It was objected for the accused that the notice was incompetent as it would practically amount to reviewing or revising the judgment already delivered, or that at least the accused had, under section 439 (6). a right to have his appeal reheard on merits. Repelling this contention, the learned Judges pointed out that the opening words of subsection (6)" notwithstanding anything contained in this section "‑‑clearly indicated that the subsection in question was intended to provide an exception to the other contents of section 439, particularly subsection (5), which prevents a person from seeking relief in revision in cases where an appeal lies but where no appeal has been brought, and that it could not possibly have been intended to reopen the appeal afresh. It would appear that some argument was also raised on the language of section 430, which provides that judgments passed by the Appellate Court on appeal shall be final except in the cases provided in section 417 (where Government may appeal against an acquittal) and Chapter XXXII, (which relates to revisional jurisdiction), for it was appointed out that since section 430 was in the Code long before the addition of sub section (6) to section 439 in 1923, the exception in section 430 " merely referred to the liability of a judgment or order of the Appellate Court to revision in accordance with the pro visions of that chapter ". Reliance was then placed on section 369, which forbade a review or alteration of a judgment after it had been signed, and it was pointed out that although technically the accused can say he has a right to show cause against his conviction, yet the moment the Court is cognizant of the fact that his appeal against that conviction has been dismissed by an Appellate Bench of this Court, then in my opinion he is debarred from seeking another Bench to go into the merits of the conviction ". The learned judges dissented from Emperor v. Mangal Naran and further pointed out that this view not only destroyed the principle of finality of justice, but may also lead to the, very inconvenient position on one Bench possibly taking a different view to another, to say nothing of the waste of time involved in a fresh hearing. This, in my opinion, is not very different from saying that although the accused possesses a right, it can be denied to him on grounds of convenience and propriety. Jorbhai's case was followed in Emperor v. Koya Partab (54 Bombay 822), where, however, the appeal, which from jail, had been dismissed summarily, notice of enhancement having been issued at the same time. . Beaumont, C. J., relied upon the language of section 430 which gave finality to an appellate judgment except to the extent provided by Chapter XXXII relating to revi sion and pointed out that the opening words of subsection (6) of section 439 being "notwithstanding anything contained in this Code ", they do not entitle the accused to go behind section

430. Referring to the fact that in Jorabhai's case the appeal had been heard on merits and not dismissed summarily, he observed that the distinction was not one of principle. It will be noticed that in these two cases the judgments under discussion were judgments in appeal, and. that stress was laid on the finality of an appellate judgment in pursuance of .the language employed in section

430. The argument used, however; found favour in this Court even where the case had come up in revision and notice of enhancement had been issued after the petition for revision had been dismissed. Thus, in Crown v. Sher (8 Lahore 521), Harrison, J.. sitting alone, followed Emperor v. Jorabhai in preference to Emperor v. Mangal Naran without further argument, except that he observed that the principle involved in Jorabhai's case applies as much to a previous order in revision as to a previous order in appeal. A fuller recognition of Jorabhai's case, however, will be found in a Division Bench case entitled Crown v. Dhanna Lal (10 Lahore 241). The facts of that case are that Dhanna Lal's appeal from his conviction .under section 420 Indian Penal Code having been dismissed by the Sessions Judge, he .had brought a petition to the High Court in revision, and this petition had also been dismissed after his counsel had been heard. At the same time, the Sessions judge, while dismissing the appeal had referred the case to the High Court for enhancement of the sentence, and this reference was heard after the revision petition had been dismissed. Addison, J., with whom Coldstream, I., agreed, emphasised the opening words of subsection (6) of section 439, which, in his opinion, related wholly and solely to subsection (5), and were intended to provide an exception for a case where because of the pettiness of the sentence, the accused had not considered it worth while to appeal or to file a petition in revision, so that, should a notice of enhancement be issued to him, he may have an opportunity also of showing cause against his conviction. He also relied on the fact that section 369 was a provision against the alteration of a judgment once delivered except to correct a clerical error. Jorabhal's case and Crown v. Sher were mentioned with approval. Favourable notice was also taken of a Mad. case In re. Saiyed Anif Sahib and others (1925 Mad. 993), where a petition for revision having been dismissed by the High Court previously to the institution of the enhancement petition, it was argued that the Court, having disposed of the former, was functus officio in respect of the latter. It was held in that case, however, that since the judge disposing of the revision petition had not adjusticated on the question of sentence, a petition for enhance ment could proceed. It was further held, though, obiter, that the words "unless he has already done so " must be assumed to be implied at the end of subsection (6), so as to take away from the accused the right of being heard against his convic tion if he has already been heard. This was because of " the ordinary presumption as to the finality of orders in criminal revision proceedings". I may point out respectfully that the decision to entertain a petition for enhancement after a revision petition by the accused has been dismissed by itself destroy the finality of a judgment in revision, and if it could be reopened for the benefit of the Crown, it might well be reopened for the benefit of the accused. Addison, J., addressed, himself to the contention that proceed ings in revision are different from those in appeal, as in the former the High Court does not go into findings of fact, and repelling that contention, pointed out that the High Court has the power of going into facts and in proper cases does go into them, for under section 439, it can exercise in revision all the powers conferred on a Court of Appeal. He further held that there was no distinction, on the one hand, between dismissing a revision petition in limine and after notice, and on the other hand, between a revision petition and a memorandum of appeal: an appeal may like a revision petition, be dismissed summarily after perusal of the petition of appeal and the copy of the judgment. In conclusion, it was held that "owing to the inherent incapacity of one judge, of the High Court to reconsider the decision of another, whether arrived at on appeal or on revision, the accused is no longer entitled under section 439 (6) of the Criminal Procedure Code to reopen the question of his guilt in the face of previous finding by the High Court". So far as decisions in limine go, these contentions have been set at rest by the decision of a Full Bench of this Court in Crown v. Atta Mohammad (25 Lah. 391). In that case the High Court had dismissed the revision petition in limine under section 435, and thereafter a reference was made by the Sessions judge for enhancement of the sentence. Blacker, J., Sitting alone, doubted the correctness of the decision in Crown v. Dhanna Lal and referred the following question to the Full Bench: "whether a convicted person, whose petition for revision has been dismissed in limine, has the right, on showing cause on a notice, issued subsequently to that dismissal, why his sentence should not be enhanced, also to show cause against his conviction". The answer of the Bench was in the affirmative. To this extent, the opinion is binding oil us, but the question before the present Bench goes a step further, whether it would make any difference if the petition has been dismissed, not in limine under section 435, but under section 439, after hearing counsel. Now although the Full Bench was confined to cases where a petition has been dismissed in limine, the arguments used by it are applicable equally to petitions which have been dismissed after a full hearing, In brief; it was held that an order under section 435 and for that matter, an order under section 435‑was not a judgment within the meaning of section 369, that an order of acquittal under section 439 (6) did not amount to a review of an order of dismissal under section 435 or section 439, but was virtually an order in appeal, and that, in any case, the rights of the accused under section 439 (6) were expressly saved by the opening words of section 369, " save as otherwise provided by this Code". Blacker J., writing the main judgment, further held that (a) section 369 was in any case overridden by subsection (6) of section 439, which was enacted subsequently, and that (b) even if there be an inherent incapacity in the High Court to review its own decision, it can be removed by the Legislature in a specific case. The argument that an order in revision was not a judgment has not been examined in the previous cases, Blacker, J., pointed out that an order in revision may often consist of the one word "Dismissed", in which case it could not necessarily be taken as a judicial pronouncement that in the opinion of the judge: the accused was rightly convicted upon the evidence. An order of dismissal ire limine was merely a refusal to proceed any further, and even the language of the Code indicates that an order passed in revision was not a judgment lie particularly pointed out the difference in the language of section 425, which r6quires the High Court to certify its "judgment or order" in appeal to the Court below, and section 442, which requires the Court of revision to certify its "decision or order" to the lower Court, thus avoiding the word "judgment" in the latter case. He slso observed that Chapter XXVI, in which section 369 occurred, related primarily to tire judgment of the original Court and that although by section 424 the provisions of this Chapter had been extended to judgments of subordiate Appellate Courts, there was no provision extending them to revisional proceedings. While I respectfully agree generally with some of these conclusions, I have to confess that a perusal of the "order" various provisions of the Code in which the terms "judgment" or "decision" occur he is left the with an impression that "judgment" has not always been used to convey a meaning particularly in contradistinction to an "order" and that on one occasion at least both terms have been used together in the alternative where only one of them could have been used alone. Thus, according to section 415-A, "when more persons than one are con victed, in one trial and an Appealable judgment or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right of appeal. Now it was clear that whet a judge or Magistrate tries an accused person and convicts him, he does so by writing or dictating a judgment so that it should have been unnecessary to use the word "order" also concomitantly. It may have been used; however, because a judgment is merely the formal expression of an "order" of conviction or acquittal, for it will be presently noticed that the phrases "judgment of acquittal " and "order of acquittal" have been used as interchangeable terms. Thus, while in sections 245 arid 258, which respectively fall in the Chapters relating to the trial of summons cases and warrant cases, the Magistrate is required to record " an order of acquittal" if he finds the accused not guilty, under section 306, which relates to trial by jury, the Sessions Judge, in similar circumstances, records a (It is interesting to note that in England an acquittal by justices was not regarded as a judgment for the purpose of appeal to the Quarter Sessions. See gtroude's Judicial Dictionary, page 521.) ''judgment of acquittal". It is certainly not arguable that what was a mere order wheel written by a Magistrate became exalted to the status of a judgment when it received the attention of a superior Court. It is true that the phrase used in section 442, in relation to the exercise of revisional jurisdiction by the High Court, is " decision or order ", as against the phrase " judgment or order " used in section 425 in relation to the exercise of appellate jurisdiction, but that may not necessarily be intentional, for when under section 434 (repealed in 1943), a Single Judge, of the High Court, acting in the exercise of original jurisdiction, referred a question of law to a Bench, the Bench, although it acted in the exercise of revisional jurisdiction (for section , 434 occurred in Chapter XXXII, which relates to Reference and Revision), had the power to review the case and "to pass such ` judgment ' or order " as appeared to it proper. In other words, a judgment was passed even in the exercise of revisional juris diction. At the same time, there is considerable force in the argument, if I may respectfully say so, that Chapter XXVI, in which section 369 occurs, is concerned primarily with the judgment of the original Court. Section 366, which is the opening section of this Chapter, refers specifically to " the judgment in every trial in any Criminal Court of original jurisdiction" and deals with the mode of delivering it. Section 367 deals with the language and contents of the judgment. Section 368 contains instructions in relation to judgments by which a sentence of death nor transportation is passed. Then follows section 369, which enjoins Courts not to alter or review their, judgments after signing them. To its details I shall return later. Next comes section 370, which deals with the contents of '‑a Presidency Magistrate's judgment. Section 371 requires that an accused person shall be supplied with a copy of the judgment free of cost, except in summons cases, and that where the sentence is one of death the, accused shall be informed of the period within which he can prefer an appeal. Section 372 provides for the translation of the judgment in certain cases. Lastly, section 373 requires the Court of Session to forward a copy of its finding and sentence to the District Magistrate. And that exhausts Chapter XXVI. Then there is a section in Chapter XXXI (relating to Appeals), section 424, which says that " the rules contained in Chapter XXVI as to the judgment of a criminal Court of original jurisdiction shall apply, so far as may, be practicable, to the judgment of an Appellate Court other than the High Court"; other than the High Court, because, apparently, there is no other Court for whose benefit the High Court might reproduce " the point or points for determination, the decision thereon and the reasons for the decision", as required by section 367 in Chapter XXVI. Thus, as Blacker, J., pointed out; while the provisions of Chapter XXVI have been made expressly applicable by, section 424 to judgments in appeal, there is no such provision in respect, of judgments or order in revision. But even in the case of appellate judgments. I may be permitted to add, the judgment of the High Court is expressly exempted by section

424. Under section 369, however, it will be noticed, even the High Court cannot " review or alter" its judgment, ex cept as otherwise provided by any law or by its Letters Patent, but as the rest of the Chapter clearly deals with original judgments, it is reasonable to presume that the judgments, of the High Court to which section 369 refers are judgments on the original side such as are contemplated by sections 411‑A and 449 and by clauses 18 and 19 of the Letters Patent. But while I am‑ definitely inclined to the opinion that in drafting Chapter XXVI the Legislature had in mind only the judgment of the original Court. I cannot hold, merely because there is no express provision relating to the finality of orders in revision, that they can normally be reviewed or altered. Judgments in appeal have been made final by section 430, except to the extent provided for in section 41; (appeal by Government against acquittal) and Chapter XXXII, which relates to proceedings in revision. It follows that when a Court acts in revision, the finality of the judgment in appeal is transferred or postponed to the order in revision. But it cannot follow that once the Court of Revision exercises its jurisdiction, it can go on revising and re‑revising its orders. I may venture to the extent of suggesting that it is unnecessary to enact a special provision declaring the finality of a proceeding after it has been provided in detail how an appeal lies from a judgment of the trial Court and on what points an appellate or original judgment is revisable. If no further remedy is provided, the order made last of all is by its very nature final. Further, the way I look at Chapter XXVI ("of the judgment ") is that it was intended to deal mainly with the form of the judgment, and that, situated as section 369 is in this context, it can only mean that you cannot alter its form so as to make it read differently, except to correct a clerical mistake. Thus a judge might like to insert another reason for his belief or delete a reason which subsequently appears to him unconvincing. It is true that the word " review ", as we understand it, implies the alteration of the conviction or sentence also. At the same time, it is clear that section 423 which deals with the Appellate Court's power in disposing of an appeal and which power is exercisable in revision also makes use of substantially different phraseology, such as " the Appellate Court may reverse "the finding and sentence or alter the finding, maintaining the sentence", and those terms are either not used in section 369 or used in a different setting. Thus section 369 speaks of the alteration or review of judgment, not of finding, and it does not speak of the reversal of judgment. Although I am not quite sure that there was any intention behind the avoidance of the terms used in section 423, the difference in the words used encourages the belief that section 369 was interest ed merely in the judgment in its formal aspect, not in the finding or sentence, or in the alteration of the finding or sentence after a hearing of the case expressly provided for by law. It might be that in forbidding the alteration of its form, it consequentially forbade an alteration of the finding and sentence, but that result may not have been expressly present to the mind of the Legis lature when enacting section

369. It thus seems to me possible that the supposed conflict between sections 369 and 439 (6) is apparent only, for their objects are different and the language of each is restricted to its own object. The review or alteration contemplated by section 369 could not have been contemplated to have resulted from the exercise of a special jurisdiction which section 439 (6) creates. " That section 439 (6) creates a special jurisdiction which clearly exceeds mere revisional jurisdiction cannot be a matter for doubt. Thus, although section 440 expressly says that " no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision ", there is a proviso to it equally express that " nothing in this section shall be deemed to affect section 439, subsection (2) ", and since sub section (6) relates back to subsection (2), tile proviso in actual practice operates with reference to subsection (6), thus distinguish ing it from ordinary proceedings in revision where the judge merely exercises discretion as much in hearing the party or his pleader as in altering the conviction or sentence. Assuming that an order of acquittal under subsection (6) of section 439 amounts to an alteration or review of the judgment already passed under subsection (1) and that such a result is repug nant to section 369, then since subsection (6) is a subsequent enactment and since leges posteriores priores contraries abrogant, to that extent section 369 should be held to lave been repealed Pro tanto. " That result, however, is not inevitable. As observed on page 147 of Maxwell on the Interpretation of Statutes, " It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the statute book ..Such an interpretation, therefore, is not to be adopted, unless it is inevit able. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention". And it seems to me that the saving clause in section 369 provides such an escape. The words used are " save as otherwise provided by this Code ", not " save as otherwise expressly provided ", so that it need not necessarily apply to section 449 or section 411‑A only, but should also apply to cases where, as result of an express provision of the Code, the judgment has to be altered or reviewed. I say "express provision" because the insertion of the words "unless he has already done so " at the end of subsection (6) which was assumed in Saiyed Anif Sahib's case and approved in Crown v. Dhanna Mal will lead to the violation of " a most elementary rule of construction ", namely, that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and secondly, that the " phrases and sentences are to be construed according to the rules of grammar. From these presumptions it is not allowable to depart where the language admits of no other meaning ". (Maxwell, page 2). It is only when the language under consideration is susceptible of another meaning that we are permitted to consider the conse quences which would flow from the literal interpretation and when such consequences do not harmonise with the literal interpretation, we are permitted to say that that interpretation does not give the real intention of the Legislature. There now remain three other points‑now rendered of minor importance‑on which argument was built in Jarabai's case and the cases that, followed it. Firstly, it was argued that a reopen ing of the case would destroy the finality of judgments as con templated by section

430. That section, it has been noticed, makes the finality object to the provisions of Chapter XXXII, which relates to Reference and Revision, and by introducing this very exception, limits the finality of judgments. Realizing that section 439 (6) was also in this Chapter, the learned judges in Jorabhai's case were forced to the argument that sub section (6) was enacted long after section 430, and in arguing thus, I say with respect, they ignored the fact that as the Code stands at present, section 430 is subject to section 439, including sub section (6): Further, as I have already observed, the very fact that a notice of enhancement may issue even after the petition has been dismissed in limine and the case may be reopened, at least to the extent of the sentence, destroys the finality of the judgment, whether in appeal or revision. Secondly, the words "notwithstanding anything contained in this section with which subsection (6) opens, were supposed to make it an exception to subsection (5) or to other provisions of section 439, but not to the Code in general. That, as Blacker, J., remarked, does not mean that it cannot be an exception to any other provision of the Code.. On that point I cannot add usefully to the judgments of Blacker and Mehr Chand Mahajan, JJ., in The Crows v. Atta Mohammad. But one clear result that should follow from this language is that if you have done any thing under subsection (1), you will have to undo it for the sake of subsection (6). In other words, if you have dismissed a petition under the former provision, you will proceed to hear the accused afresh notwithstanding that dismissal. The third point relates to the inherent incapacity of one judge of the High Court to reconsider the decision of another. That, as observed by Blacker, J., can be removed by legislation. My answer to the reference, therefore, is that subsection (6) of section 439 gives a fresh right to the accused to question his conviction even after his petition has been dismissed under section 439 (1). The case will go back to Single Bench, but as I have already expressed an opinion on merits, it should be placed before another judge. A. MUHAMMAD JAN.‑

I agree. S, Zafarullah, for Petitioner.

141. Anwar, for Respondent. M. KHURSHID ZAMAN, J.‑

Ghulam Muhammad respondent was convicted by Mr. Muhammad Sharif, section 30 Magistrate, Lahore, under section 5 of the Prevention of Corruption Act, 1947, and on three‑ counts under section 161, Pakistan Penal Code. On the former charge he was sentenced to undergo rigorous imprison ment for a period of three years and under section 161 he was sentenced to one years rigorous imprisonment on each count. The sentences were ordered to run concurrently. On appeal, the learned Additional Sessions judge maintained the convictions but reduced the sentence under section 5 of the Prevention of Corruption Act from three years to six months' rigorous imprison ment and under section 161 from one year to four months' rigorous imprisonment on each count. The petitioner came up in revision to this Court and it was contended on his behalf that the trial was illegal because it contravened the provisions of section 234 of the Code of Criminal Procedure. Under the provisions of the Punjab Public Safety Act the procedure prescribed for the trial of summons cases was followed in this case. At the commencement of the trial the particulars of the offences with which the respondent was charged were stated to him in the following terms :‑ The police report shows that you as a Revenue Patwari of Jia Bagga habitually received on different occasions in September 1947 or thereabouts illegal gratification from refugees in connection with the allotment of houses and agricultural land ; that you are stated to have received Rs. 30 from Dost Muhammad P. W: Rs. 50 from Ilam Din P. W. and Rs. 100 from Ghulam Muhammad P. W. as illegal gratification. You are further stated to have received various sums of money as illegal gratification from Piran Ditta, Munshi, Sardara, Rura and Khair‑ud‑Din P. Ws. Thus you have committed offences of criminal misconduct as defined in section 5 of the Prevention of Corruption Act of 1947. You have also committed offences of receiving illegal gratification under section 161 of the Pakistan Penal Code. You are, therefore, required to show cause why you should .not be punished". The statement of particulars of offences quoted above does not clearly show whether the respondent was being tried for three offences of illegal gratification or for all the eight offences of illegal gratification mentioned therein. But, perhaps, because in passing the sentences the learned Magistrate bad confined himself to only three offences under section 161, the attention of the learned Additional Sessions judge does not seem to have been directed towards this impropriety; nor any objection appears to have been taken before him on the ground that more than three offences were tried at the same time in contravention of the provisions of section 234 of the Code of Criminal Procedure. This point was, however, taken by the petitioner's counsel when the case came up in revision before this Court. Kayani, J., who heard the petition, took the view that the trial, so far as it related to offences under section 161, Pakistan Penal Code, was illegal as it contravened the provisions of section 234 of the Code. He accordingly set aside the convictions and sentences under section 161 of the Penal Code, but maintained the conviction under section 5 of the Prevention of Corruption Act, 1947, and issued a notice to the respondent to show cause why his sentence under that section should not be enhanced. Under section 5 (1) (a), a public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Indian Penal Code. Under subsection (2) any public servant who commits criminal misconduct in the discharge of his duty, shall be punishable for a term which may extend to seven years, or with fine, or with both. When the case again came up before Kayani, J., learned counsel for the respondent attempted to argue it on merits. The question arose whether the respondent was entitled after the rejection of his petition on merits to show cause against his conviction under subsection, (6) of section 439 of the Code of Criminal Procedure when he appeared to show cause why his sentence should not be enhanced. As the question raised was of considerable importance, it was referred to a Division Bench for an authoritative pronouncement. A Division Bench consisting of A M. Jan and Kayani, JJ., came to the conclusion that subsection (6) of section 439 gives a fresh right to the accused to question his conviction even after his petition has been Ghulam dismissed under section 439, subsection (1). In the concluding paragraph of the judgment Kayani, J. observed that as he had already expressed his opinion on merits, the case should be placed Muhammad before another judge. This is how the case has come to me for Zaman disposal. Learned counsel for the respondent has repeated before me his objection as to the legality of the trial. This objection is based on two grounds, firstly, that, in view of the provisions of section 234 of the Code of Criminal Procedure, the whole trial was illegal for misjoinder of charges and that the trial could not be split up for the purpose of holding that it was partly good and partly bad for misjoinder of charges, and secondly, that the offence under section.. 5 of, the Prevention of Corruption Act, 1947, is a distinct offence by itself and should have been tried separately under section 233 of the Code of Criminal Procedure. There is considerable force in both of these pleas. Kayani, J., was of the view that the provisions of the Code of Criminal Procedure relating to trials did not apply to offences under section 5 of the Act inasmuch as section 5, subsection (2) of the Code "permits the adoption of any special procedure in the trial of offences 'under any law other than the Indian Penal Code by providing that such offences shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences". It is true that subsection (2) of section 5 of the Code of Criminal Procedure expressly provides that if a special form of procedure has been prescribed by any special or local law for the‑time being in force, it is that procedure which must be followed, but if no such procedure has been prescribed, the trial must be regulated by the procedure prescribed by the Criminal Procedure Code. So far as I can see, no special procedure has been prescribed by the Prevention of Corruption Act, 1947, for the trial of offences of criminal misconduct under section 5 of the Act. It is, therefore, obvious that the provisions of the Code of Criminal Procedure relating to trials also apply to offences falling under that section. Therefore, even if it be assumed that the offence of criminal misconduct as defined in section 5 is covered by the expression "offences of the same kind" in relation to offences under section 161, there was a trial of more than three such offences and consequently the whole of the trial was illegal. I, however, find it extremely difficult to hold that an offence under section 5 of the Act is an offence of the same kind in relation to offences under section

161. The various instances of offences under section 161, some of which formed the subject of charges against the respondent, when put together, may have proved the offence of criminal misconduct as defined in section 5 of the Prevention of Corruption Act, 1947, but taken individually each offence under section 161 cannot be regarded as an offence of the same kind in relation to the offence falling under section

5. Therefore the trial of criminal misconduct under section 5 and the several offences under section 161, Penal Code, at the same time offends against the provisions of section 233 of the Code of Criminal Procedure which lays down that "for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239". In. my judgment none of the exceptions mentioned in sections 234, 235, 236 and 239 covers the present case. In the matter of the Petition of Uttamkoondoo (I. L. R. 8 Cal. 634), it was held that the accused could not be tried at the same trial for receiving or retaining (section 411) and habitually receiving or dealing in (section 413), stolen property, these two offences not being offences of the same kind. It was further observed by the learned judges that "the proper course would have been to try the accused first for the offences under section 411, and then, if he were convicted, to try him for the offence under section 413, putting in as evidence the previous conviction under section 411, and proving the finding of the rest of the property in respect of which no separate charge, under section 411, could be made or tried by reason of the provisions of section 453, Code of Criminal Procedure". I am in respectful agreement with the view expressed by the learned judges. In the present case also the respondent was tried under section 5 of the Prevention of Corruption Act for habitually receiving illegal gratification as well as for specific offences of receiving illegal gratification. As pointed out by the learned judges in I. L. R , 8 Cal. 634, the proper course would have been to try the accused person first for the offences alleged to have been committed by him under section 161, Penal Code, and then, if he were convicted, to try him for the offence under section 5 of the Prevention of Corruption Act, putting in as evidence his previous conviction under section 161, Penal Code. I am of the opinion that on both the grounds stated above, the trial must be held to be illegal as the provisions of sections 233 and 234 of the Code of Criminal Procedure hove been disregarded. In Subrahmania Ayyar v. King‑Emperor (I. L. R. 25 Mad. 61) their Lordships of the Privy Council observed :‑ "Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being appeared over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant". At another place their Lordships observed :‑ Upon the assumption that the trial was illegally conducted it is idle to suggest that there is enough left upon the indictment upon which a conviction might have been supported if the accused has been properly tried . For the reasons stated above, I am constrained to set aside the conviction and sentence of the respondent under section 5 of the Prevention of Corruption Act, 1947. The question whether I should order a fresh trial remains to be considered. There is a serious objection to this course being adopted. Subsection (3) of section 1 of the Prevention of Corruption Act, 1947, enacts that "section 5 shall remain in force for a period of three years from the commencement of this Act". The Act came into force on the 11th March 1947, and the 11th March 1947, and the provisions of section 5 automatically ceased to be in force on the 10th March 1950. In view of the temporary nature of the provisions of section 5, it was contended by the learned counsel for the respondent that no action can now be taken against the respondent for the offences alleged to have been committed by him under that section. In support of this contention, learned counsel has cited a Full Bench decision of the Allahabad High Court reported as B. Banagopal v. Emperor (A. I. R. 1933 All. 669.) It was held in that case that as a general rule, unless there is some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. An offence therefore committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires, any proceedings which are being taken against a person will ipso facto terminate. It is true that in the present case the whole of the Act has not expired, but it was not contended by the learned counsel who appeared for the Crown that different principles apply to temporary provisions in an Act as distinguished from temporary Acts. Indeed; he saw the force of the contention or the learned counsel for the respondent and conceded that no fresh trial could be ordered for an offence committed under section 5 of the Prevention of Corruption Act, 1947, which was no longer in force. In my view this is the correct legal position. Ii is really most unfortunate that the respondent has escaped a substantial term of imprisonment which he richly deserved by the mishandling of the case by those who were in charge of it in the trial Court. In the view I have taken of the matter, no question of enhancement of sentence arises. Consequently the Rule issued to the respondent to show cause why his sentence should not be enhanced is hereby discharged. A. H. Rule discharged.