1. The petitioner in this case Harendra Chandra Barori was a Sub-Deputy Magistrate at Dacca acting at the tirne also as a Special Magistrate under Ordinance 2 of 1942. He has been convicted under Section 161, Penal Code for having taken a bribe of Rs. 10,000 from Rabindra Kumar Das (P.W. 1) on 12-4-1943. The bribe was given, according to the prosecution, to secure the acquittal of Rai Bahadur Satyendra Kumar Das and Hemendra Kumar Das, the father and uncle of the briber Rabindra Kumar Das, who at the time weje under trial before the petitioner in a case under the defence of india rules. The accused has been sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 1000 in default to suffer further three months' rigorous imprisonment.

2. The accused was previously tried by the Additional District Magistrate of Mymensingh and convicted but on appeal the conviction and sentence were set aside by the Additional Sessions Judge of Mymensingh on the ground that the proceedings were void as there was no proper sanction for the prosecution.

3. Mr. Santosh Kumar Basu appearing on behalf of the petitioner has attacked the conviction on certain legal grounds and secondly by an argument which was substantially an argument applicable in our opinion to an appeal on facts against the conviction relating solely to the merits of the case and to the evidence. We will first dispose of the latter and then consider the more strictly legal points raised by the argument.

4. The prosecution case very briefly is that Rabindra Kumar Das (P.W. 1) was approached by the accused through his Peshkar Tarani Dhar Dutt (P.W. 20). Rabindra Kumar Das is known throughout the case as Putu and we will use this name for him. According to his evidence Putu saw the accused on the evening of 9-4-1943 when the latter demanded Rs. 15,000 as a bribe for acquitting his father and uncle the accused explaining how potent was his position in view of the extraordinary powers given to him as a Special Magistrate.

5. On 10th April Putu saw the Government Pleader, Babu Pankaj Kumar Ghose P.W. 8, who was acting as defence lawyer in the case before the accused. He got Putu to record history in writing (Ex. A) and informed the District Magistrate Mr. John (P.W. 7). It was arranged that a watcher of the Intelligence Branch should be posted to see Putu that night when he went to visit the accused to discuss the matter further. At an interview with the accused at about 9 o'clock Putu agreed to pay Rs. 10,000 on the following Monday, 12th April. According to Pankaj Babu Putu came to his house at 10 O'clock that night and informed him that arrangement had been made. On 12th of April, the Magistrate was informed and arrangements were made to provide Rs. 10,000 in five and ten rupee notes, the numbers of which were taken, for a watch to be kept on Putu when he went to pay the bribe, and for the house to be surrounded so that the money might be seized. Accordingly Putu went with Sub-Inspector Ambika Charan Sarkar (P.W. 9) and D.I.B. Inspector Shanti Bhusan Roy Chowdhury (P.W. 10) in a car towards the direction of the accused's house. Putu started to walk with a suit case with the notes followed by Shanti Bhusan Roy Chowdhury who, to make sure, tested and examined the suit case to see that the notes were still there while they were on their way. He then followed Putu at some distance, saw him meet the accused and enter through the gate of the accused's house. The other Sub-Inspector Ambika Charan also saw the accused strolling on the street with another man and saw Putu enter the accused's house. He waited for about 10 or 15 minutes till he saw flash of a torch and then met Putu with the empty suit case. By the time he entered the compound Mr. Chitham (P.W. 14), the Superintendent of Police, had already arrived there with Mr. Allen (P.W. 19). They had been informed by Shanti Bhusan Roy Chowdhury (P.W. 10) who ran in that direction when he saw flash of the torch. The house was surrounded and eventually the accused who was in the compound apparently when the police party came in the house told his wife to hand over the money. His story to the police was that Putu had come to the house and left or thrown the notes at him and left the place. According to Mr. John, the District Magistrate, the accused said that an unknown person had thrown the notes.

6. The accused's defence is that he knew nothing about the matter until at about 8-80 on the night of the 12th when Putu suddenly came to the door of his north eastern room, threw some bundles of notes from suit case at him saying "here is Rs. 10,000" and immediately ran away. He was perplexed, he hurriedly told his wife about what had happened, asked her to look after the money and was going to tell Pankaj Babu, the Deputy Superintendent of Police, about the incident and see what action should be taken when the police party came and he reported the matter to them. The accused has called a doctor to establish an alibi to show that he could not have met Putu on 9th April as he states, and he has also called his wife to support his story as to the circumstances in which the notes were left at his house.

7. The question for decision is a simple one, whether Putu's story is true that the accused demanded bribe and he accordingly went on the night of the 12th as requested by the accused and paid the money or whether Putu and the Government Pleader Pankaj Babu were a party to a conspiracy to implicate the accused and Putu has played a trick on the District Magistrate and the Superintendent of Police by managing to dump the notes in the house of the accused although the latter had made no arrangement whatever to receive them. Mr. Basu in the course of his argument has taken us through a good deal of the evidence, and our own view is that there cannot be any possible doubt that the case is a genuine one and that the accused's story is quite unacceptable. (After discussing the evidence his Lordship concluded.)

8. In the lower appellate Court the accused endeavoured to make some ingenious use of the difficulties arising out of Section 197, Criminal P.C. In the first trial he argued on the ground that the sanction given was defective, The learned Sessions Judge in this trial appears to have accepted the defence contention that the accused had been previously acquitted on that ground and there was some discussion then by him as to whether the second trial was barred under Section 403, Criminal P.C. We find, however, on examining the judgment of the Additional Sessions Judge dated 14th February 1944 in the first appeal that the order passed was:

In the result the appeal be allowed on the preliminary ground of want of a proper sanction against the accused by competent authority as required under amended Section 197, Criminal P.C., and the conviction and sentence of the appellant be accordingly quashed and set aside and he be discharged from his bail.

In other words, no order of acquittal was passed. This appears to be the correct order to pass in such circumstances. The finding is that the whole proceedings are, without jurisdiction and null and void and, therefore, the only thing to do is to declare the fact and to let the accused depart from Court. The Court has no more jurisdiction to aquit than to convict. This has been pointed out by the Federal Court and we may draw attention to the order passed in a case of this type by the Federal Court in Basdeo Agarwalla v. Emperor . Mr. Basu has drawn our attention to one or two cases where orders of acquittal were not passed in cases where the only and proper order to be passed was one of acquittal, and where subsequently it had been held that the protection of Section 403, Criminal P.C., was not avoided by the previous defective order. The cases have no application in the circumstances to the present case in our opinion. If in fact an order of acquittal had been passed, erroneously, then some question might have arisen as to whether that could or could not be ignored for the purpose of Section 403, Criminal P.C.

9. The next contention is that although sanction has in fact been given in the present case no sanction is required, that Section 197, Criminal P.C. has no application to a case under Section 161, Penal Code and therefore the provisions of Section 197(2), Criminal P.C. giving the power to the Governor to specify the Court before which the trial is to be held are also not applicable. In the present case along with the sanction an order was passed by the Governor that the trial should be held at Mymensingh although the offence was alleged to have been committed at Dacca. We think this matter might be disposed of shortly by saying that even assuming that Section 197 is not applicable in the present case, the fact that the trial was held in a wrong district is no ground for setting aside the conviction in view of the provisions of Section 531, Criminal P.C., unless it appears that the error has in fact occasioned a failure of justice, and that in this case it is abundantly clear, that the error, if any, has not occasioned any failure of justice. It is clear that the order was passed very fairly for the benefit of the accused because, owing to the very circumstances of the case, the local officers might be thought to be too closely connected with the matter for a fair trial to be held at Dacca. Mymensingh is the adjacent district with a large staff and the trial was held there under orders of the Governor by the Additional District Magistrate. We may go further and say that if no question of sanction had arisen, if the trial had begun at Dacca, we have little doubt the accused would have come to this Court with a prayer for a transfer and almost certainly the suggestion would have been that the best place for the trial would be Mymensingh. In any case the only suggestion made on behalf of the accused that there has been a failure of justice appears to amount to this, that by the order of the Governor, owing to the operation of Section 526(7) and Section 531, Criminal P.C., the accused in some way has been deprived of a grievance. No suggestion of substance in the merits has been made. There was a suggestion that the accused might have had some difficulty in conducting his defence at Mymensingh as he had a sick son who needed attention, but as we have said, it is very clear here that there was much to be said in the accused's interest for a trial in some place other than Dacca, and any such trial must have led to some inconvenience to him. We note in this connection that in his petition before this Court it is part of his defence that this case has been concocted against him because he had been taking strong line, that he had become very unpopular both with the bar as well as the public. He had a quarrel with Babu Pankaj Kumar Ghosh who though as the Government pleader usually conducted criminal cases for the Crown appeared for the accused in a number of important cases under the defence of india rules which made the position of the prosecution awkward and this had been reported by your petitioner to the District Magistrate. In another place he refers to the fact that the accused in the case before him, that is to say Putu's father and uncle, were very influential persons at Dacca. These are points which would have received great emphasis if the accused had come before this Court for a transfer under Section 526, Criminal P.C.

10. As the point has been examined at some length in argument we may express our view on the question whether sanction was necessary in this case or not. We are clearly of opinion that prosecution for an offence under Section 161, Penal Code does require sanction of the Provincial Government under Section 197, Criminal P.C. In this view, we are unfortunately in disagreement with that expressed in Khurshed Ahmed v. Amanulla , where it has been said that a member of a Debt Settlement Board who would so turn his back on his duty as to take bribes cannot be said to be acting or purporting to act in the discharge of the duties of a member of the Board. Prior to the amendment of Section 197, Criminal P.C. in 1923 there had been some differences of opinion in the Courts as to how far the protection given by the old section extended, but in all the cases we have examined it was undisputed that protection was given in all cases where an essential element of the offence to be established was the fact that the offender was a public servant; in other words, that it was applicable in all the offences in chap. IX, Penal Code involving public servants and in the case of such offences as those under Sections 217, 218 and 219 etc. Under the old section sanction was necessary where "When any Judge or any public servant... is accused as such Judge or public servant of any offence" and the sanction could be given by the Local Government or by some Court or other authority to which the Judge or public servant was subordinate. In view of the wording of the section, as it then stood, no trouble at all arose in regard to offences where the definition began as in Section 161, Penal Code, "whoever, being a pubic Servant." For instance in Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852 it was pointed out that under the old Code of 1861 a Circular Order had been issued by this Court (C.O. 20 of 1864) for the guidance of inferior Courts as to the scope of Section 167 of that Code, the section corresponding to Section 197 of the Code of 1898. It was then pointed out that the section related to offences which could be committed by public servants as such, and which are specified in Chap. IX, Penal Code.

The Judgment continues:

This explanation of the law was adopted by the Bombay High Court in Reg. v. Parshram Keshab ('70) 7 Bom. H.C.R. Cr. 61, with a modification not, however, involving any matter of principle. The learned Judges said in relation to this Circular Order : 'If the Circular referred to be correctly quoted we cannot fully concur in it, for it seems to us impossible to hold that Section 167 does not relate to such offences as those specified in Sections 217 to 223, Penal Code, which are not contained in Chap. IX of the Code. But we agree with the view which was no doubt intended to be expressed in the Circular, namely, that Section 167 relates only to those acts and omissions which are declared in the Penal Code to be offences when they are committed by a public servant.

Further quotations from other cases are given in the judgment in Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852. We may mention only one, the opinion of Field J. that, the first paragraph of Section 466 (of the Code of 1872) was intended to apply to those cases in which the offence charged is an offence which can be committed by a public servant only, cases, that is, in which he being a public servant is a necessary element in the offence.

In Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852 it was held that sanction was not necessary in respect of the prosecution of a Magistrate for some alleged offensive remarks made by him to a lawyer in Court.

11. Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852 was referred to in In re Abdul Kadir Saheb ('17) 4 A.I.R. 1917 Mad. 344 by Coutts-Trotter J. as he then was, in considering the question of the sanction in a case under Section 409, Penal Code. The opinion of Field J. quoted above is quoted in this case and the learned Judge stated "I accept that as a perfectly accurate statement of the law; but it does not solve the difficulty here." He then proceeded to draw a distinction between the position of a public servant accused under Section 409, Penal Code, and a public servant accused in an offence under Chap. IX or under Section 217, Penal Code, and held that sanction was not necessary. We may also refer to Baisnab Charan v. Sukhomoy ('21) 8 A.I.R. 1921 Cal. 388. It is there held that sanction was necessary for prosecution of an Honorary Magistrate alleged illegally to have wrongfully confined the Muktear. Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852 was referred to and distinguished. In the argument a distinction was drawn between Section 342, Penal Code and other eases where the accused "being a public servant?' was a necessary element in the offence. In this particular ease, however, the distinction was not accepted by the Court. But for our purpose the point is that there was no dispute that such cases did require sanction.

12. In 1923 the section was amended and the number of authorities who could veto prosecution, that is to say who were given power to sanction or refuse sanction, was reduced, the sole authority being the Local Government. At the same time, the wording was altered to what we now have, and it was provided that sanction is required where an offence is alleged to have been committed by the accused "while acting or purporting to act in the discharge of his official duty." We think there can be no doubt that the intention at the time, while restricting the number of authorities that could veto sanction, was to widen the number of cases in which sanction was required. But, for our present purpose, it is not necessary to go so far and it is sufficient if we can say that it is clear that there could have been no intention to restrict the number of cases in which sanction was required and make it less than the number which had been all along accepted from the time of the Code of 1861 as being those previously requiring sanction. The matter is discussed in Ram Singh v. S.A. Rizvi ('35) 22 A.I.R. 1935 Pat. 52 where John Woodroffe's Code of Criminal Procedure is quoted on the amended section for the view that the scope of the section had been widened. The revised section was considered by this Court in Amanat Ali v. Emperor in somewhat unusual circumstances. The petitioner before the Court was being prosecuted under Section 211, Penal Code for having brought a false case under Section 406, Penal Code against a Sub-Deputy Collector. He took the defence that as his own complaint was one requiring sanction before cognizance could be taken and as such sanction had not been given so he could not be prosecuted under Section 211, Penal Code. The Court after considering the case in In re Abdul Kadir Saheb ('17) 4 A.I.R. 1917 Mad. 344, referred to above, held that a complaint of an offence under Section 409, Penal Code did not require sanction. We may note that in relying on the reasoning given by Coutts-Trotter J. in the case cited it does not appear that the learned Judges took into consideration the fact that the section had been amended in the meantime.

13. We have said that we do not think that there was any intention by the amendment in 1923 to cut down the number of offences requiring sanction; on the contrary, indications are that the intention was, to increase the number. In fact we may go further and say and that it seems probable that it was intended that cases like Nanda Lal Basak v. N.N. Mitter ('99) 26 Cal. 852 and possibly the cases under Section 409, Penal Code, were intended to be covered, If the wording of the amended section is examined without any reference to its background, and if the policy which was clearly the policy of the Legislature from 1861 as regards protection to public servants is not remembered, it is possible that the words now used may seem to bear a very narrow construction such as that indicated in Khurshed Ahmed v. Amanulla . But as pointed out by Sheshagiri Ayyar J. in Sankaralingha Tevan v. Avudai Ammal ('17) 4 A.I.R. 1917 Mad. 657 quoted in 14 pat. 2997 If this argument is pushed to its logical conclusion, no public servant or Judge can have the safeguard of a sanction, as it is not within the powers of such an officer to commit an offence. Any offence committed by such a person must prima facie be beyond his official rights and duties, an opinion with which we respectfully agree. As we have said it is not necessary here to consider the exact scope and effect of the amendment of 1923. It is sufficient if we are able to show that at any rate it has not reduced the protection given to public servants by the law in force just prior to the amendment. Under the law as it had stood for over 60 years before the amendment no public servant accused of taking a bribe could be prosecuted without a sanction either of the Local Government or of some other superior authority. We believe it is still the law under the amended Section 197, Criminal P.C. that the sanction of the Provincial Government is necessary for the prosecution of officers of the class described therein for the offences of bribery.

14. We have been referred in this matter to decisions of the Federal Court in Hori Ram Singh v. Emperor and Hector Thomas Hintley v. Emperor . In both those cases the decision with regard to Section 197, Criminal P.C. was explicitly avoided although in the former ease the decisions were discussed with a view to considering some similar wording in Section 270, Government of India Act, but we can find nothing in those cases to make us doubt of the correctness of the view here expressed. In a later Patna case, Province of Behar v. Bam Shaw, however, it was held that there was no material distinction between the wording in Section 270, Government of India Act, and Section 197, Criminal P.C. The previous police case in Ram Singh v. S.A. Rizvi ('35) 22 A.I.R. 1935 Pat. 52 and the previous history of Section 197 were not considered.

15. In the view we have taken of the effect of Section 531, Criminal P.C., we do not feel it necessary in this case to refer the matter as to the need for sanction under Section 197, Criminal P.C. for prosecution for bribery under Section 161, Penal Code to a Pull Bench.

16. The result is that the present Rule must be discharged. We have been urged that the sentence might be reduced particularly in view of the fact that in the original abortive trial a lesser sentence was imposed. In our opinion this is a very bad case. It was particularly necessary that the Magistrates empowered as Special Magistrates under the Ordinance should be men of character who could be relied upon to exercise the superior powers granted to them under that Ordinance fairly, decently and honourably. The accused has failed miserably to sustain the trust reposed in him in the matter. We can find no reason to interfere with the sentence. The accused-petitioner must surrender to his bail and serve out the remainder of his sentence.

Ellis, J.

I agree.