PETITIONER:
SHREEKANTIAH RAMAYYA MUNIPALLI
Vs.
RESPONDENT:
THE STATE OF BOMBAY(With Connected Appeal)
DATE OF JUDGMENT:
22/12/1954
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
1955 AIR 287 1955 SCR (1)1177
ACT:
Criminal Procedure Code, (Act V of 1898), s. 197-Prevention
of Corruption Act, 1947 (II of 1947), s. 5(2)-Charge
thereunder and charge under s. 409 of the Indian Penal Code
(Act XLV of 1860)Separated from each other-Sanction granted
under s. 5(2) of the Prevention of Corruption Act-Whether
could be extended as to cover prosecution under s. 409 of
the Indian Penal Code-S. 197 of the Code of Criminal
Procedure-Scope and construction of-Indian Penal Code, s.
34-Essence of-Whether the person must be physically present
at the actual commission of the crime.
HEADNOTE:
The three accused-Government servants-were jointly charged
with an offence punishable under s. 5(2) of the Prevention
of Corruption Act, 1947 and all three were further jointly
charged with having committed breach of trust in furtherance
of the common intention of all under s. 409 of the Indian
Penal Code read with s. 34. Then followed a number of
alternative charges in which each was separately charged
with having committed criminal breach of trust personally
under s. 409. As a further alternative, all three were
1178
jointly charged under s. 409 read with s. 109 for having
abetted each other in the commission of a criminal breach of
trust under s. 409. On objection taken to these charges,
the trial for the offence under s. 5(2) of the Prevention of
Corruption Act was separated from the trial under s. 409 of
the Indian Penal Code. The charges were reframed. One
under s. 5(2) was dropped while others remained. On 27-10-
1949 the Governor-General acting under s. 197 of the Code of
Criminal Procedure sanctioned the prosecution of the first
accused (appellant No. 1) for offences under ss. 120-B, 409,
109 for having conspired with the other two to commit
criminal breach of trust in respect of properties belonging
to Government and for having thus abetted the commission of
that offence and also for having committed it. Similar
sanction was not given against the other two accused and was
limited only to the first accused. On the same date
sanction was given for the prosecution of the first accused
under s. 5(2) of the Prevention of Corruption Act, 1947 and
a similar sanction was given against the second accused.
The question was whether this sanction against the second
accused could be extended to cover his prosecution under s.
409 and whether his trial was valid.
Held, (answering the question in the negative) that under s.
197 of the Code of Criminal Procedure the sanctioning
authority was the Governor-General. Under the Prevention of
Corruption Act, 1947 the sanctioning authority was the
Central Government. Either one, or two, Government
authorities were given the right and invested with the duty
of making an election. If two Government authorities are
given the right to choose and neither can encroach upon the
preserve of the other, then the Governor-General has not
sanctioned the present prosecution against the second
accused (appellant No. 2) and no other authority has the
power to do so. Therefore the sanction given to prosecute
under s. 5(2) of Act II of 1947, could not be used to cover
the present trial, because it was given by an authority not
competent to give it.
If, on the other hand, the two authorities are really one,
then the election has been made clearly. The sanction under
s. 5(2) of the Prevention of Corruption Act, 1947 as amended
by Act LIX of 1952 and Act XLVI of 1952 is to proceed in
special courts with a special procedure so the present trial
against the second accused was incompetent.
It is well-settled that a defect of this nature is fatal and
cannot be cured when s. 197 applies and, as it did, sanction
was necessary so the trial was vitiated from the start. The
proceeding,,; were accordingly quashed.
If s. 197 of the Code of Criminal Procedure is construed too
narrowly it can never be applied for it is no part of an
official’s duty to commit an offence and never can be. But
it is not the duty of an official which has to be examined
so much as his act, because an official act can be performed
in the discharge of official duty as well as in dereliction
of it. The section has content and its language must be
given meaning.
1179
In the case of the first accused there was misdirection in
the charge to the Jury under s. 34. The essence of the
misdirection consisted in the Sessions Judge’s direction to
the jury that even though a person may not be present when
the offence is actually committed and even if he remains
“behind the screen” he can be convicted under s. 34 provided
it is proved that the offence was committed in furtherance
of the common intention. This is wrong because the essence
of the section is that the person must be physically present
at the actual commission of the crime.
The misdirection is plain and goes to the root of the case
because the jury returned a verdict of guilty under s. 409
read with s. 34 alone and not under s. 409 read with s.
109, I.P.C.
Held, that in cases which raise questions of substance and
importance the High Courts should not pass summary orders of
rejection without giving some indication of their views on
the points raised before them.
Mushtak Hussein v. The State of Bombay ([1953] S.C.R. 809),
The State v. Gurucharan Singh (A.I.R. [1952] Punjab 89),
Gokulchand Dwarkadas v. The King (A.I.R. [1948] P.C. 82),
Hori Ram Singh v. The Crown ([1939] F.C.R. 159), Madan Mohan
v. The State of Uttar Pradesh (A.I.R. [1954] S.C. 637),
Lieutenant Hector Thomas Huntley v. The King-Emperor ([1944]
F.C.R. 262), and Barendra Kumar Ghosh v. The King-Emperor
([1924] L.R. 52 I-A. 40), referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 89
and 90 of. 1954.
Appeals by Special Leave from the Judgment and Order dated
the 23rd November 1953 of the High Court of Judicature ‘at
Bombay in Criminal Appeal No. 1213 of 1953, and from the
Judgment and Order dated the 25th August 1953 of the High
Court of Judicature at Bombay in Criminal Appeal No. 1121 of
1953 arising out of the judgment and decree dated the 6th
August 1953 of the Court of Sessions Case No. 36 of 1952.
S. Narayanaiah and Dr. C. V.L. Narayan, for the appellant
in Criminal Appeal No. 89 of 1954.
C. Sanjeevarow Nayadu and R. Ganapathy Ayyar, for the
appellant in Criminal Appeal No. 90 of 1954.
M.C. Setalvad, Attorney-General of India (G. N. Joshi and
Porus A. Mehta, with him) for the respondent.
151
1180
1954. December 22. The Judgment of the Court was delivered
by
BOSE, J.-These two appeals arise out of the same trial. The
two appellants, Shreekantiah (the first accused in the trial
Court and the appellant in Appeal No. 89 of 1954) and
Parasuram (the second accused and the appellant in Appeal
No. 90 of 1954) were tried with a third accused Dawson on a
number of different charges centering round section 409 of
the Indian Penal Code: criminal breach of trust by a public
servant. The trial was by jury and all three were found
guilty of an offence under section 409 read with section 34.
They were convicted and sentenced as under:
Accused No. 1. Shreekantiah to one year and a fine of Rs.
500 with four months in default;
Accused No. 2. Parasuram to two years and a fine of Rs. 500
with six months in default; and
Accused No. 3. Dawson to six months and a fine of Rs. 200
with two months in default.
The appeal of the second accused to the High Court was
dismissed summarily on 25-8-1953 with the one word
“dismissed”. The first and third accused appealed
separately. Their appeal was heard by another Bench and was
admitted, and a reasoned judgment followed on 23-11-1953.
This, to. say the least, was, in the circumstances of this
case, anomalous. The ap.peals arise out of the same trial
and are from one judgment and relate to the same charge to
the jury, and what is more they raise substantially the same
points. This Court was constrained to express its
disapproval of the summary rejections of appeals which raise
issues of substance and importance. We draw attention to
the remarks in Mushtak Hussein v. The State of Bombay(1).
Those observations apply with even greater force in the
present case.
The three accused are Government servants. At all material
times, the first was the Officer Commanding, the Military
Engineering Stores Depot at Dehu Road near Poona. He was in
over-all charge. The
(1) [1953] S.C.R. 809, 820.
1181
second was under him as the officer in charge of the
Receipts and Issue control section. The third worked
directly under the second as the Assistant Stores Officer.
The depot is maintained by the Central Government and covers
an area of some 150 acres. Government stores worth several
lacs of rupees are kept there. On 11-9-1948 iron stores
worth about Rs. 4,000 were illegally passed out of the depot
and were handed over to one Ibrahim Fida Hussain, an agent
of the approver Mohsinbhai (P.W. 1). The case for the
prosecution is that the three accused, who were in charge of
these stores and to whom they had been entrusted in various
capacities, entered into a conspiracy to defraud Government
of these properties and that in pursuance of this conspiracy
they arranged to sell them to the approver (P.W. 1) for a
sum of Rs. 4,000. The money is said to have been paid and
then the stores were passed out of the depot. The money is
said to have been pocketed by the three accused and not
credited to Government.
On these facts a number of charges were framed. The first
set was drawn up on 9-7-1953. All three accused were
jointly charged with an offence punishable under section
5(2) of the Prevention of Corruption Act, 1947 and all three
were further jointly charged with having committed criminal
breach of trust in furtherance of the common intention of
all under section 409 of the Indian Penal Code read with
section 34.
Then followed a number of alternative charges in which each
was separately charged with having committed criminal breach
of trust personally under section 409.
As a further alternative., all three were jointly charged
under section 409, Indian Penal Code read with section 109
for having abetted each other in the commission of a
criminal breach of trust under section 409.
Objection was at once taken to these charges and the one
which concerns us now was couched in the following terms;
1182
“It is further submitted that the trial under section 5(2),
Corruption Act, 1947 with Indian Penal Code section 409 is
likely to embarrass the accused in their defence as it would
be difficult to efface the evidence (if any) of the accused
persons given on oath from the minds of the Jurors when
considering the charge under section 409, Indian Penal Code.
It is therefore prayed that the charges under sec409, Indian
Penal Code and section 5(2) of the Corruption Act may not be
tried together in one trial”.
The Assistant Public Prosecutor said he had no objection to
separating the charges and leaving the one under section
5(2) for another trial. The Court then made the following
order on 10-7-1953:
“Thus, though a joint trial for offence under section 5(2)
of the Prevention of Corruption Act and the offences under
the Indian Penal Code is legal and valid,, I think, in view
of the circumstances mentioned above, it would be in the
interest of justice and also in the interests of the accused
themselves if the trial for the offence under section 5(2)
of the Prevention of Corruption Act is separated. I
therefore grant the application to this extent and order
that the charge should be amended accordingly”.
In view of this the charges were re-framed on 11-7-1953.
The only difference of substance is that the charge under
section 5(2) was dropped. The others remained.
Now it will be observed that the accused are all public
servants and they contend that as, according to the
prosecution, they purported to act in the discharge of their
official duties, sanction was necessary under section 197 of
the Criminal Procedure Code. There is sanction so far as
the first accused is concerned but the -second accused
contends that there is none in his case to justify the
present trial, so his trial,, conviction and sentence are
bad.
The position about this is as follows: On 27-10-1949 the
Governor-General, acting under section 197 of the Code of
Criminal Procedure, sanctioned the prosecution of the first
accused for offences tinder sections
1183
120-B, 409, 109 and so forth, for having conspired with the
other two to commit criminal breach of trust in respect of
the properties with which this case is concerned and thus
for having abetted the commission of that offence, and also
for having committed it. Similar sanction could easily have
been given against the other two accused but it was not.
The sanction for these offences was limited to the first
accused.
On the same date sanction was also given for the prosecution
of the first accused under section 5(2) of the Prevention of
Corruption Act and a similar sanction was given against the
second accused. The question is whether this sanction
against the second accused can be extended to cover his
prosecution under section 409 of the Indian Penal Code. In
our opinion, it cannot.
At the date of the sanction the unamended Prevention of
Corruption Act (II of 1947) was in force. Criminal breach
of trust under section 409 of the Indian Penal Code was
included in the definition of “criminal misconduct” under
section 5(1)(c) of the Act of 1947. Therefore, an offence
under section 409 could be tried under the Act of 1947 and
the question arose whether it would have to be tried under
that Act, or whether it could also be tried in the ordinary
way by the ordinary Courts. The Punjab High Court held in
The State v. Gurucharan Sinah(1) that it could not. Because
of this the Act of 1947 was amended in 1952 by Act LIX of
1952 and section 4 of the amending Act makes it clear that
the trial can be under either law. But in the same year the
Criminal Law Amendment Act, 1952 (Act XLVI of 1952) was
passed and because of this Act trials under section 5(2) of
the Prevention of Corruption Act must be before a Special
Court and a special procedure must be followed. Therefore,
the position which these various Acts created was this.
First, a choice was conferred on some authority to choose
whether any given accused should be tried in a special Court
with a special procedure and be subject to a lesser
punishment under section 5(2) or whether he should be tried
in the ordi-
(1) A.I.R. 1952 Punjab 89,
1184
nary way under section 409 of the Indian Penal Code with the
risk of a higher punishment.
The question then is who is to do the choosing. Under
section 197 of the Code of Criminal Procedure the Governor-
General was at that date the sanctioning authority though
the words “exercising his individual judgment” had by that
time been deleted. Under the Prevention of Corruption Act
the sanctioning authority was the “Central Government”. Now
it may well be that the two mean the same thing because of
section 8(a) of the General Clauses Act but that makes no
difference at the moment. The fact remains that either one,
or two, Government authorities were given the right, and
invested with the duty, of making an election. They had the
right to say whether a certain class of public servant who
had committed criminal breach of trust should be tried for
that offence under section 409 of the Indian Penal Code in
the ordinary courts of the land according to the normal
procedure obtaining there and be subject to a maximum
penalty of ten years plus an unlimited fine or be tried for
the same offence under another name in a special court by a
special procedure and be subject to no more than seven years
plus a fine which is also unlimited.
At this stage of the arguments we asked the learned counsel
for the appellants whether they intended to challenge the
vires of this law under article 14 of the Constitution
because, if they did, the matter would have to go to a
Constitution Bench as we, being only three Judges, would
have no power to decide it. The learned Attorney-General at
once objected because the point had not been raised at any
stage and was not to be found even in the grounds of appeal
to this Court. The learned counsel for the appellants
replied that they did not wish to take the point.
Accordingly, we have to proceed in this case on the
assumption that the amending Act of 1952 (Act LIX of 1952)
is valid. That results in the position we have outlined
above. There is a choice, not only of forum, but also of
procedure and the extent of the maximum penalty. If two
separate authorities are given the right to
1185
choose and neither can encroach upon the preserve of the
other, then the Governor-General has not sanctioned the
present prosecution against the second accused and no other
authority has the power to do so. Therefore, in that event,
the sanction given to prosecute under section 5(2) cannot be
used to cover the present trial because it is given by
another authority not competent to give it.
On the other hand , if the two authorities are really one,
then the election has been made clearly and unequivocally.
The sanction is to proceed in the special courts with the
special procedure and the second accused is not to be
exposed to the risk of the higher penalty. In that event,
the present trial against the second accused is incompetent.
That a defect of this kind is fatal and cannot be cured is
well settled. See the Privy Council in Gokulchand Dwarkadas
v. The King(1), the observations of Varadachariar, J. in
Hori Ram Singh v. The Crown(1) and the decision of this
Court in Madan Mohan v. The State of Uttar Pradesh(1). But
the learned Attorney General argued that no sanction was
necessary because, according to him, despite what the second
accused says, by no stretch of imagination can he be said to
have been acting, or even purporting to act, in the
discharge of his official duty. The argument ran as
follows:-The act complained of here is the breach of trust
and the prior abetment of it: the breach occurred as soon as
the goods were loaded on Mohsinbhai’s lorries: it was no
part of this accused’s official duties to permit an
unauthorised removal of the goods: therefore., when he
allowed that he neither acted. nor purported to act, in the
discharge of his official duties. Reference was made to the
decision of the Federal Court in Lieutenant Hector Thomas
Huntley v. The King-Emperor(1) where Zafrullah Khan, J. held
that “it must be established that the act complained of was
an official act”, and to the observations of Varadachariar,
J. in Hori Ram Singh v. The Crown(1)
(1) A.I.R. 1948 P.C. 82.
(3) A.I.R. 1954 S.C. 637, 641.
(2) [1939] F.C.R. 159, 184.
(4) [1944] F.C.R. 262, 269.
(5) [1939] F.C.R. 159, 186.
1186
where, dealing with section 409 of the Indian Penal Code, he
says-
“Though a reference to the capacity of the accused as a
-public servant is involved both in the charge under section
409 and in the charge under section 477-A, there is an
important difference between the two cases, when one comes
to deal with the act complained of. In the first, the
official capacity is material only in connection with the
‘entrustment’ and does not necessarily enter into the later
act of misappropriation or conversion, which is the act com-
plained of”.
What this argument overlooks is that the stress in the
passage quoted is on the word “necessarily” which we have
underlined. A later passage at page 187 explains this:
“I would observe at the outset that the question is
substantially one of fact, to be determined with reference
to the act complained of and the attendant circumstances; it
seems neither useful nor desirable to paraphrase the
language of the section in attempting to lay down hard and
fast tests”.
With that we respectfully agree. There are cases and cases
and each must be decided on its own facts.
Now it is obvious that if section 197 of the Code of
Criminal Procedure is construed too narrowly it can never be
applied, for of course it is no part of an official’s duty
to commit an offence and never can be. But it is not the
duty we have to examine so much as the act, because an
official act can be performed in the discharge of official
duty as well as in dereliction of it. The section has
content and its language must be given meaning. What it
says is-
” when any public servant…….. is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official
duty……
We have therefore first to concentrate on the word
“offence”.
Now an offence seldom consists of a single act. It is
usually composed of several elements and, as a rule, a whole
series of acts must be proved before it can be
1187
established. In the present case, the elements alleged
against the second accused are, first, that there was an
“entrustment” and/or “dominion”; second, that the
entrustment and/or dominion was “in his capacity as a public
servant”; third, that there was a “disposal”; and fourth,
that the disposal was “dishonest”. Now it is evident that
the entrustment and/ or dominion here were in an official
capacity, and it is equally evident that there could in this
case be no disposal, lawful or otherwise, save by an act
done or purporting to be done in an official capacity.
Therefore, the act complained of, namely the disposal, could
not have been done in any other way. If it was innocent, it
was an official act; if dishonest, it was the dishonest
doing of an official act, but in either event the act was
official because the second accused could not dispose of the
goods save by the doing of an official act, namely
officially permitting their disposal; and that he did. He
actually permitted their release and purported to do it in
an official capacity, and apart from the fact that he did
not pretend to act privately, there was no other way in
which he could have done it. Therefore, whatever the
intention or motive behind the act may have been, the
physical part of it remained unaltered, so if it was
official in the one case it was equally official in the
other, and the only difference would lie in the intention
with which it was done: in the one event, it would be done
in the discharge of an official duty and in the other, in
the purported discharge of it.
The act of abetment alleged against him stands on the same
footing, for his part in the abetment was to permit the
disposal of the goods by the doing of an official act and
thus “wilfully suffer” another person to use them
dishonestly: section 405 of the Indian Penal Code. In both
cases, the -’offence” in his case would be incomplete
without proving the official act.
We therefore hold that section 197 of the Code of Criminal
Procedure applies and that sanction was necessary, and as
there was none the trial is vitiated from the start. We
therefore quash the proceedings
152
1188
against the second accused as also his conviction and
sentence.
We now turn to the appeal of the first accused. He has been
convicted under section 409 of the Indian Penal Code read
with section 34. The main point here concerns a vital
misdirection in the charge to the jury about section 34.
The learned Additional Sessions Judge misunderstood the
scope and content of this section and so misdirected the
jury about the law.
The section was expounded at length in paragraphs 15 and 16
of the charge and though some of the illustrations given are
on the right lines, there is much there that is wrong and
which, if acted on, would cause a miscarriage of justice.
The essence of the misdirection consists in his direction to
the jury that even though a person “may not be present when
the offence is actually committed” and even if he remains
“behind the screen” he can be convicted under section 34
provided it is proved that the offence was committed in
furtherance of the common intention. This is wrong, for it
is the essence of the section that the person must be
physically present at the actual commission of the crime.
He need not be present in the actual room; he can, for
instance, stand guard by a gate outside ready to warn his
companions about any approach of danger or wait in a car on
a nearby road ready to facilitate their escape, but he must
be physically present at the scene of the occurrence and
must actually participate in the commission of the offence
in some way or other at the time the crime is actually being
committed. The antithesis is between the preliminary
stages, the agreement, the preparation, the planning, which
is covered by section 109, and the stage of commission when
the plans are put into effect and carried out. Section 34
is concerned with the latter. It is true there must be some
sort of preliminary planning which may or may not be at the
scene of the crime and which may have taken place long
beforehand, but there must be added to it the element of
physical presence at the scene of occurrence coupled with
actual participation which, of
1189
course, can be of a passive character such as standing by a
door, provided that is done with the intention of assisting
in furtherance of the common intention of them all and there
is a readiness to play his part in the pre-arranged plan
when the time comes for him to act.
The emphasis in section 34 is on the word “done”: “When a
criminal act is done by several persons………. It is
essential that they join in the actual doing of the act and
not merely in planning its perpetration. The section has
been elaborately explained by Lord Sumner in Barendra Kumar
Ghosh v. The King-Emperor(1). At page 52, he explains that
“participation in action” is the leading feature of section
34. And at page 53 in explaining section 114 of the Indian
Penal Code, he says-
“Because participation de facto (as this case shows) may
sometimes be obscure in detail, it is established by the
presumption juris et de jure that actual presence plus prior
abetment can mean nothing else, but participation. The
presumption raised by section 114 brings the case within the
ambit of section 34″.
At page 55 he says about section 34 that-
“participation and joint action in the actual commission of
crime are, in substance, matters which stand in antithesis
to abetments or attempts”.
The misdirection is plain and it goes to the root of the
matter because the jury returned a verdict of guilty under
section 409 of the Indian Penal Code read with section 34
alone and not under section 409 read with section 109.
It is part of the defence of the first accused that he was
not present when the goods were loaded nor was be present
when they were allowed to pass out of the gates, that is to
say, that he was not present when the offence was committed.
It is true there is evidence to show that he was there when
the lorries left but apart from the fact that there is a
small discrepancy on the point, there is nothing to indicate
that this evidence was believed. If he was not present he
(1) [1924) L.R. 52 I.A. 40.
1190
cannot be convicted with the aid of section 34. He could
have been convicted of the abetment had the jury returned a
verdict to that effect because there is evidence of abetment
and the charge about abetment is right in law. But the jury
ignored the abetment part of the charge and we have no means
of knowing whether they believed this part of the evidence
or not.
There is also non-direction on an important point which may
have caused a miscarriage of justice. The case for the
prosecution is that the accused disposed of the goods to
Mohsinbhai for a sum of Rs. 4,000 which was duly paid to the
second accused on the 10th. The learned trial Judge told
the jury that-
“the evidence led by the prosecution about the payment of
the Rs. 4,000 is proved to be utterly useless”,
and in telling them why he gave them a number of reasons.
But he omitted to follow this up by telling them that if
they rejected this part of the prosecution case, as he
invited them to do, then the strongest part of the case
against the accused collapsed because officers. in the
position of the accused do not commit illegal acts like this
and expose themselves to a prosecution and possible disgrace
unless they are prompted by some strong motive, usually self
interest; and though a conviction can be based on evidence
which does not disclose a motive if the facts proved justify
such a course, yet it would ordinarily be unsafe to convict
in a case like the present in the absence of proof
indicating an adequate reason for criminal behavior on the
part of the accused. Had the jury been told this, as they
should have been, it is possible they would not have
returned a verdict of guilty.
In the circumstances, we have no alternative but to quash
this conviction also.
We have now to consider whether there should be a retrial.
As the present trial cannot proceed against the second
accused, and as all the accused are said to have acted in
concert each playing an appointed part in a common plan, we
do not think it would be right
1191
to direct a retrial though this is the normal course when a
jury trial is set aside on the grounds of misdirection and
non-direction. We therefore discharge (not acquit) both the
appellants leaving it to Government either to drop the
entire matter or to proceed in such manner as it may be
advised. We do this because the accused expressly asked
that the charge under the Prevention of Corruption Act
should be left over for a separate trial. The two
convictions are therefore quashed and also the sentences.
We are told that the first accused has already served out
his sentence. The fine if paid, will be refunded. The bail
bond of the second accused will be cancelled.