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Smart Summary

Judgment Summary: Criminal Appeals Nos. 365 & 376 of 1953

Factual and Procedural Background

Both appellants were convicted under Section 161 of the Penal Code. Nil Madhab Patnaik (Criminal Appeal No. 365 of 1953), an Assistant Sub‑Inspector attached to Kandra Police Outpost, was sentenced to rigorous imprisonment for one year. Md. Yasin Ahmad Khan (Criminal Appeal No. 376 of 1953), a constable attached to the same outpost, was sentenced to rigorous imprisonment for six months. The events occurred in and around the village of Bikaneepur, within the jurisdiction of the Kandra outpost.

The prosecution case was that villagers suspected witchcraft in connection with the illness of the wife of Phagu Manjhi and had assembled to consult a man who drove out evil spirits. On 10 October 1952, Patnaik and Yasin came to Bikaneepur, gathered approximately twenty‑eight residents, threatened them with police action, and extracted money from the assembled villagers (the collection amounted to Rs. 62/4/-, of which Rs. 50 went to Patnaik and Rs. 12/4 to Yasin). Two villagers (Bikram and Phagu) were detained further and demanded larger sums for release; these were negotiated down.

On 11 October 1952 the Sub‑Divisional Officer (Mr. Mandal) learned of the matter, made enquiries, examined witnesses and found interpolations in the station diary. He prepared a report submitted to the Deputy Commissioner on 19 October 1952. Trial before the Special Judge commenced on 31 October 1952 and charges were framed on 21 December 1952. It was discovered that the sanction required under Section 6 of the Prevention of Corruption Act, 1947, had not been obtained; the original case was dismissed and the accused discharged, but fresh cognizance was taken on the basis of a sanction (Ex. 1/1) dated 31 January 1953 from the Deputy Inspector‑General of Police.

Legal Issues Presented

  1. Whether the sanction accorded by the Deputy Inspector‑General of Police complied with legal requirements (i.e., whether the facts constituting the offence were before the sanctioning authority or whether extraneous evidence can be relied upon).
  2. Whether the Special Judge's act of taking cognizance (after discharge and on fresh sanction) was vitiated for want of compliance with Sections 190 and 191 of the Code of Criminal Procedure when proceedings were before a Special Judge under the Criminal Law Amendment Act.
  3. Whether the Criminal Law Amendment Act could be applied in the area in question given the contention invoking Clause 5 of the Fifth Schedule of the Constitution (i.e., whether a Governor's notification was necessary before applying such law to a scheduled area).
  4. On the merits, whether the appellants received, or were involved in obtaining, illegal gratification in exchange for forbearance from taking action under Section 107 CrPC (and which offences were proved against each appellant).

Arguments of the Parties

Appellant(s)' Arguments (Mr. Mukherji for Patnaik)

  • Challenged the validity of the sanction from the Deputy Inspector‑General: contended the sanction did not show that the relevant facts of the case were before the sanctioning authority; relied on Privy Council authority Gokulchand Dwarkadas v. The King (AIR 1948 PC 82 (A)).
  • Contended that the Special Judge purported to take cognizance under Section 8(1) of the Criminal Law Amendment Act but that cognizance must be governed by Section 190 CrPC; if cognizance was under Section 190(1)(c) CrPC, Section 191 required the judge to inform the accused of their right to trial by another court and such omission vitiated the trial.
  • Argued that the place of occurrence was in a scheduled area and that Clause 5, Fifth Schedule, required a notification by the Governor before applying laws to that area.
  • On merits: contended that Patnaik acted bona fide to prevent a breach of the peace and intended to take steps under Section 107 CrPC; also contended that the prosecution had not proved that bribes were given to the appellants.

Respondent / State's Arguments

  • The Additional Standing Counsel argued that the act of taking cognizance by the Special Judge is not referable to Section 190 CrPC because the Special Judge is not a Magistrate but a Sessions Judge trying cases without jury or assessors under the Criminal Law Amendment Act; sub‑section (1) of Section 8 must be read with Section 193 CrPC and Section 7 of the Criminal Law Amendment Act governs trial jurisdiction.
  • Implicitly, the prosecution relied on the content of the Deputy Commissioner's letter and the Sub‑Divisional Officer's report being before the Deputy Inspector‑General to justify the validity of the sanction (the court reviews and accepts the extraneous evidence showing the facts had been placed before the sanctioning authority).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gokulchand Dwarkadas v. The King, AIR 1948 PC 82 (A) Sanctioning authority must give sanction in respect of the facts constituting the offence; if facts are not on the face of the sanction, prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The court accepted the precedent's rule but held that in the present case the facts (via the Deputy Commissioner's letter and the Sub‑Divisional Officer's report) were shown by extraneous evidence to have been before the Deputy Inspector‑General. Therefore the sanction (Ex. 1/1) was treated as valid and the point raised by the defence failed.

Court's Reasoning and Analysis

The court addressed the key points raised by defence counsel sequentially and applied statutory text and evidence from the record to each:

  1. Sanction under Prevention of Corruption Act:
    • The sanction (Ex. 1/1) did not recite the facts on its face. The court examined the letter from the Deputy Commissioner (Ex. 1/2) which referred to the Sub‑Divisional Officer's report (Ex. 4) that contained detailed evidence collected on 11 and 12 October 1952. Applying the principle from Gokulchand Dwarkadas, the court held that the prosecution proved by extraneous evidence that all facts necessary for the sanctioning authority to decide were before him. The court concluded there was no reason to think the Deputy Inspector‑General did not consider those matters and dismissed the objection to the sanction.
  2. Cognizance and application of CrPC provisions:
    • Defence argued the Special Judge's act of taking cognizance should be governed by Section 190 CrPC and, if by Section 190(1)(c), Section 191 required informing accused of right to trial by another court. The Additional Standing Counsel replied that the Special Judge is a Sessions Judge under the Criminal Law Amendment Act, and different provisions apply.
    • The court relied on the Criminal Law Amendment Act: Section 7(2) provides that offences specified in Section 6(1) must be tried by the Special Judge for the area. Sub‑section (3) of Section 8 states that the provisions of the Code of Criminal Procedure apply to proceedings before a Special Judge only if not inconsistent with the Act. The court reasoned it would be inconsistent with Section 7(2) to allow an accused the opportunity to be tried by a Court other than the Special Judge. Consequently, Section 191 CrPC had no application in this context even if Section 190 were assumed to apply, and the trial was not vitiated on that ground.
  3. Applicability of Parliamentary enactments in scheduled areas (Fifth Schedule, Clause 5):
    • Defence contended that Clause 5 of the Fifth Schedule required a Governor's notification before applying the law in a scheduled area. The court analyzed Clause 5 and Article 245(1) of the Constitution and held that an Act of Parliament applies to every part of India, and a State Act to every part of the State, including scheduled areas. The court found nothing in Clause 5 to require the Governor to issue a notification before enforcement; therefore the Criminal Law Amendment Act applied to the area of occurrence.
  4. Merits — whether illegal gratification was taken and liability of each appellant:
    • The court accepted that Patnaik and Yasin were present in the village from late afternoon to about midnight and that the prosecution's account of the witchcraft consultation was not challenged. On the central factual question, the court concluded that the money collected from villagers (via P.W.2) and handed to Patnaik and Yasin constituted illegal gratification given so that Patnaik would forbear from making a report for action under Section 107 CrPC. The court held the witnesses had told the truth and that Patnaik received illegal gratification from several persons, including identified witnesses.
    • As to Yasin, the Special Judge had given an alternative finding (guilty under S.161 or at least guilty of abetment). The appellate court stated that, although charges may be framed in the alternative, the final finding must be definite. The court analyzed the evidence and concluded that Yasin had been proved to have aided and abetted Patnaik in realising illegal gratification, even though it was not established that he personally received the illegal gratification. Accordingly, his conviction was altered to one under Section 161 read with Section 109 Penal Code (S.161/109).
    • The court declined to interfere with the sentences imposed, noting the sentence on Yasin was not severe and therefore required no change.

Holding and Implications

Core Ruling:

The appeals are dismissed. More specifically:

  • Criminal Appeal No. 365 (Nil Madhab Patnaik) is dismissed; his conviction under Section 161 Penal Code and sentence of rigorous imprisonment for one year are upheld.
  • Criminal Appeal No. 376 (Md. Yasin Ahmad Khan) is dismissed but the conviction is modified: his conviction is altered to one under Section 161 read with Section 109 Penal Code (S.161/109). The sentence (rigorous imprisonment for six months) remains unaltered.

Implications:

  • Direct effect on the parties: both appellants remain convicted; Patnaik's conviction and sentence are sustained; Yasin's conviction is changed to abetment (S.161/109) but his sentence is not varied.
  • On procedural questions raised (sanction, cognizance, applicability in scheduled areas), the court resolved those issues against the appellants on the facts and statutory interpretation provided; the decision applies the principle that extraneous evidence may be used to show that relevant facts were placed before a sanctioning authority where the sanction itself does not recite the facts.
  • The opinion does not state that it establishes any new legal precedent beyond applying existing authority and legislative provisions to the facts; therefore no novel precedent is announced by this judgment beyond its application to these appeals.

Result recorded in the judgment: "Appeals dismissed."

V.S.B
Show full summary ...

    Nil Madhab Patnaik And Another v. The State

    1. Both the appellants have been convicted under S. 161, Penal Code. Appellant Nil Madhab Patnaik, who has Sled Criminal Appeal No. 365 of 1953, has been sentenced to undergo rigorous imprisonment for one year and appellant Md. Yasin Ahmad Khan, who has filed Criminal Appeal No. 376 of 1953, has been sentenced to undergo rigorous imprisonment for six months. As both the appeals are directed against the same judgment, this judgment will govern them both. Appellant Nil Madhab Patnaik was attached to Kandra Police outpost in Singhbhum distinct as an assistant Sub-Inspector of Police. Yasin Ahmad Khan was attached to the same police outpost as a constable. Village Bikaneepur lies within the jurisdiction of that outpost.

    2. The prosecution case is that the wife of Phagu Manjhi (P.W 15), a resident of village Bikaneepur, was indisposed from 30-9-1952. It was suspected that she was a victim of witchcraft. The villagers, thereupon, went to village Dhatnidih in order to consult Gura Manjhi, who acted as a ‘sakha’ (a man who drives out evil spirits). Gura Manjhi said that a ghost living in the ‘bari’ of an old woman who was the elder wife of a man and who was living close to the house of Phagu Manjhi was responsible for the illness. The villagers identified Champa Manjhin (P.W 28) as the woman described by Guru Manjhi. Three fowls were sacrificed in order to propitiate the evil spirit. Appellant Nil Madhab Patnaik learnt about this affair two days later on 10-10-1952. He sent for Thikadar Shimanta Mahato (P.W 16) and made enquiries from him.

    3. It may be mentioned that a ‘thikadar’ performs the functions of a chaukidar in the locality where the occurrence in question took place. The assistant Sub-Inspector then went to village Bikaneepur on the same date, i.e, the 10th October, arriving there at about 5 p.m He had already sent Constable Yasin Ahmad Khan to the village and he had arrived there at about 4.30 p.m Under the directions of appellant Patnaik, Shimanta Mahato (P.W 16) brought together about twenty eight residents of village Bikaneepur and other neighbouring villages on the village road. Appellant Patnaik then threatened them by saying that he would chalan them. In due, course, he put forward the suggestion that he might let them off if he was paid Rs. 500. There was a good deal of higgling and, ultimately, it was agreed that the villagers should pay the appellant at the rate of Rs. 2/8 per head.

    4. Rukmini Kumar Chatterji (P.W 2), who is also known as Thakur, lives in village Bikaneepur as he is an employee in the Kandra Glass Factory close by. He began realising money from the assembled villagers and, with the exception of four persons, all paid him at the rate of Rs. 2/8. One of the remaining four paid him Rs. 2/4/-. The total collection came to Rs. 62/4/-, out of, which P.W 2 handed over Rs. 50 to appellant Patnaik and Rs. 12/4 to appellant Yasin Ahmad Khan. Thereafter, appellant Patnaik allowed all except Bikram (P.W 13) and Phagu (P.W 15) to go. He demanded a further sum of Rs. 100 each from these two witnesses for their release. After some negotiation, it was settled that they would pay him Rs. 30 each and they would also give him a goat each next day. At about midnight, both the appellants went back to their outpost.

    5. Mr. Mandal (P.W 8) was then the Sub-Divisional Officer of Saraikela. Kandra outpost lies in that Sub-Division. On 11-10-1952, he learnt from Banamali Mahato (P.W 27) that appellant Patnaik had realised bribe from the villagers of Bikaneepur. He immediately sent a slip to the Inspector to follow him and he proceeded to Bikaneepur. He made enquiries there and examined several witnesses. Thereafter, he went to Kandra Police outpost and examined the station diary as well as the personal diary of appellant Patnaik. He again visited Bikaneepur next day along with the Inspector (P.W 14) and examined seven more witnesses who were not available on the first day. Both the officers came to the outpost and there the Inspector looked into the station diary and said that he found in the relevant station diary entry something more than what the Sub-Divisional Officer was saying it contained. On looking into it, the Sub-Divisional Officer found that some additions and alterations had been made in the station diary entry (Ex. 3), Ext. 3/1 being the interpolated portion.

    6. The Sub-divisional Officer drew up his report (Ex. 4) and submitted it to the Deputy Commissioner on 19-10-1952. Both the appellants were put upon their trial and it commenced before the Special Judge on 31-10-1952. Charges were framed on 21-12-1952. It was, however, discovered that the sanction as required under Section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947) had not been obtained. On 5-2-1953, the Public Prosecutor filed an application praying to the Special Judge to dismiss the case and to discharge the accused persons as there was no sanction and to start a fresh case against them on the same facts. The Special Judge, accordingly, dismissed the original case and discharged the accused but took fresh cognizane of the offence on the basis of a sanction (Ex. 1/1) which was accorded by the Deputy Inspector-General of Police, Southern Range.

    7. Mr. Mukherji, who has appeared on behalf of appellant Patnaik, has not challenged the allegation that there was a witchcraft case in Bikaneepur, as alleged by the prosecution, nor has he challenged the allegation that the two appellants were in village Bikaneepur from about 4-30 and 5 P.M to about midnight. Indeed, these allegations do not appear to have been challenged even in the trial Court and there is plenty of evidence to support them. Mr. Mukherji has raised several points of law and has further contended that the prosecution case that bribe was given to the appellants has not been proved. I propose to consider first the points of law which he has raised.

    8. The first point which Mr. Mukherji has raised is that the sanction accorded by the Deputy Inspector-General of Police does not comply with legal requirements because it does not show that the facts of the present case were before the Deputy Inspector-General and that he took them into consideration before he accorded the sanction. In support of his contention, he has relied upon the decision of the Privy Council in the case of — ‘Gokulchand Dwarkadas v. The King’, AIR 1948 PC 82 (A). This was a case in which sanction for prosecution was required under cl. 23 of the Cotton Cloth and Yarn (Control) Order, 1943. Sir John Beaumont, who delivered the judgment of the Board, observed as follows:

    “In their Lordships' view, in order to comply with the provisions of cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.”

    9. In the present case, the sanction (Ex. 1/1) runs as follows:

    “Whereas I, B.B Banerji, Deputy Inspector-General of Police, Southern Range, Ranchi, on consideration of the facts and evidence disclosed in letter No. 68-C dated 30th January, 1953 from the Deputy Commissioner, Singhbhum (a copy whereof is enclosed), have reasons to believe that A.S.I.N.M Patnaik and Constable Yasin Khan of Kandra Outpost, Seraikella, district Singhbhum have committed an offence under S. 161, Penal Code.

    Now, therefore, in exercise of the powers conferred, on me by S. 6 of Act II of 1947, I consent to the initiation of proceedings for the prosecution of the aforesaid accused for an offence under the aforesaid section of the Indian Penal Code.

    Sd. B.B Banerji 31-1-53

    Deputy Inspector-General of Police, Southern Range, Ranchi.”

    10. Thus, the facts of the case have clearly not been referred to on the face of the sanction. The letter written by the Deputy Commissioner to the Deputy Inspector-General, however, has been referred to and that letter is Ex. 1/2. The last paragraph of that letter shows that a copy of the Sub-Divisional Officer's report was enclosed with it when it was being despatched to the Deputy Inspector-General. The report, as I have said, is Exhibit 4. It is a very exhaustive document and it clearly refers to the evidence which the Sub-Divisional Officer collected at village Bikaneepur and Kandra outpost on the 11th and 12th of October 1952 in connection with this case. That being so, it is clear that the prosecution has proved in this case by extraneous evidence that all the facts necessary to enable the sanctioning authority to decide whether sanction should be accorded or not were before him. I have, therefore, no reason to think that the Deputy Inspector-General of Police did not consider all these matters before he accorded the sanction. The point raised by Mr. Mukherji, therefore, fails.

    11. The second point which Mr. Mukherji has raised is that the Special Judge purports to have taken cognizance of this case on 5-2-1953 under Section 8(1) of the Criminal Law Amendment Act, (Act XLVI of 1952), but the act of taking cognizance must be referred to Section 190 of the Cr PC, which is the only section which provides for cognizance of an offence being taken. Mr. Mukherji has further contended that the Special Judge must be deemed to have taken cognizance under Section 190(1)(c) of the Cr PC, as neither a complaint was filed in this case nor was a report in writing submitted by any police officer. His contention is that, if the Special judge took cognizance under S. 190(1)(c) he had, under Section 191 of the Cr PC, to inform the appellants that they were entitled to have the case tried by another Court and that the trial is vitiated because the Special Judge gave no such information to the appellants.

    12. The learned Additional Standing Counsel has, however, replied that the act of taking cognizance, is not referable to Section 190 of the Cr PC, because the Special Judge is not a Magistrate but is a Sessions Judge trying cases without the aid of jury or assessors as provided in sub-section (3) of Section 8 of the Criminal Law Amendment Act. He has contended that sub-s. (1) of that section has to be read with Section 193 of the Cr PC because that sub-section merely lifts the ban imposed by S. 193 against a Sessions Judge taking cognizance of a case as a Court of original jurisdiction without its being committed to him. In my opinion, it is unnecessary to consider these arguments because the point can be disposed of very shortly. Sub-section (2), Section 7 of the Criminal Law Amendment Act, provides as follows:

    “Every offence specified in sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.”

    13. There is only one Special Judge who exercises jurisdiction over the area in which the occurrence in question took place and he has tried the present case. Under S. 7(2) read with S. 7(1), no one else could try it. Sub-section (3) of S. 8 provides that the provisions of the Code of Criminal Procedure shall apply to the proceedings before a Special Judge, if they are not inconsistent with this Act. It would be inconsistent with S. 7(2) of the Act to allow an opportunity to an accused to be tried by a Court other than that of a Special, Judge. That being so, Section 191 of the Cr PC has no application to the facts of this case even if it is assumed that S. 190 applies. The trial cannot, therefore, be held to be vitiated.

    14. The next point raised by Mr. Mukherji is based upon cl. 5 of the Fifth Schedule of the Constitution. He has contended that the place where the occurrence in question took place is situated in a scheduled area and that, in view of cl. 5 of the Fifth Schedule, no law could be made applicable to such an area without a notification by the Governor of Bihar. In my opinion, this contention is quite unsound. Clause 5 of the Fifth Schedule makes a provision for the Governor to make a notification directing that any particular Act of Parliament or of the Legislature of the State shall not apply to a scheduled area or shall apply with such and such modifications and exceptions. An Act of Parliament is applicable to every part of the territory of India and an Act of the Legislature of the State is applicable to every part of the State including scheduled areas under Article 245(1) of the Constitution. There is nothing in cl. 5 of the Fifth Schedule to show that the Governor must issue a notification before any such Act can be enforced in a scheduled area. There can, therefore, be no doubt that the Criminal Law Amendment Act which has been passed by the Parliament is applicable to the area in which the occurrence in question took place.

    15. It is necessary now to consider the merits of the case against Patnaik. Mr. Mukherji has stated that the situation in village Bikaneepur on the date on which appellant Patnaik was there was such that a breach of the peace could be apprehended at any moment and that appellant Patnaik, therefore, intended to take steps for action under Section 107 of the Cr PC, against some residents of that village. According to him, appellant Patnaik was acting in a bona fide manner. In support of this argument, he has drawn my attention to the station diary entry (Ex. 3) dated the 10th October. (After reviewing the evidence his Lordship, came:to the conclusion:) I am clearly of the view that the money collected by P.W 2 from P.Ws 13, 15 and 16 as well as others was paid to appellant Patnaik as illegal gratification so that he should forbear from making a report for action under Section 107 of the Cr PC, against them. I hold, therefore, that the witnesses have told the truth and;that appellant Patnaik received illegal gratification from several persons including P.Ws 13, 15 and 16.

    16. So far as appellant Yasin Khan is concerned, the learned Special Judge has given a finding in the alternative. He has held that this appellant is guilty of an offence under S. 161, Penal Code, or he is, at least, guilty of abetment. This is not at all permissible. Although charges may be framed in the alternative, the finding has to be definite. He could convict this appellant either under S. 161 or under S. 161/109, Penal Code, in accordance with whatever finding he could arrive at. It is, therefore, necessary to consider which offence has been established against this appellant. (After considering the circumstances his Lordship concluded:) In these circumstances, I am of opinion that he has been proved to be guilty of having aided and thereby abetted appellant Patnaik in realising illegal gratification, though it has not been established that he actually received illegal gratification himself. His conviction has, therefore, to be altered to one under S. 161/109, Penal Code. No interference with the sentence imposed upon him is called for because the sentence which has been imposed is not at all severe. The result is that Criminal Appeal No. 365 filed by appellant Patnaik is dismissed and Criminal Appeal No. 376 filed by appellant Yasin Khan is dismissed with the modification that his conviction is altered to one under S. 161/109, Penal Code.

    V.S.B

    17. Appeals dismissed.

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    Comments

    Nil Madhab Patnaik And Another v. The State
    (Aug 12, 1954)