H.H.B Gill And Others v. Emperor

The Judgment of the Court was delivered by

Blank, J.:— Appeals Nos. 624 and 625 of 1945 are appeals respectively by H.H.B Gill and Anil Lahiri against their convictions and sentences, both appellants under S. 165 read with S. 120B, Penal Code, and respectively under Ss. 165 and 165 read with S. 109, Penal Code. They were sentenced to simple imprisonment for 3 months the former in Division I, and the latter in Division II, and also to pay a fine of Rs. 210 each with simple imprisonment for 14 days in default. These sentences were under Ss. 165 and 165 read with S. 109, Penal Code. No separate sentences were passed under S. 165 read with S. 120B, Penal Code. Revision No. 1330 of 1945 arises from an application for enhancement of sentence. The appellant Gill was and is a Captain in the army. At the material time he held an appointment carrying with it the temporary rank of Major but having vacated that appointment he has now reverted to the substantive rank of Captain. His learned counsel was at some pains to point out to us at the beginning of his argument that his client had not suffered a degradation in rank or the like but had merely come within the operation of army rules which in fact have affected large numbers of other officers; we have taken due note of this. For the sake of convenience the appellants will be refer, red to hereinafter by their surnames without further addition.

2. We set out the course of these proceedings briefly from the beginning. On 25-2-1943, a complaint was filed before the Chief Presidency Magistrate, at that time Mr. R. Gupta, alleging against Gill and Lahiri, that between March 1941 and July 1942 Gill held the post of Deputy Assistant Director of Contracts and Deputy Controller of Purchase at Calcutta under the Chief Controller of Purchase (Munitions) in which capacity he was responsible for the issue and acceptance of tenders for purchase of mate, rials in compliance with the indents made by the Director of Ordnance Factories and Director of Civil Production; that accused Lahiri was the proprietor of the Baranagar Engineering Works and a contractor for supplies on requisitions made by Gill. An anonymous letter was received mentioning Gill's name and on enquiries in connexion therewith a cheque for Rs. 500 was found issued by the accused Lahiri with the endorsements of both the accused and another person; and on a search of the house of accused Lahiri various papers were found including a diary and some counterfoils of cheques. That from these papers it appeared that Gill had been taking illegal gratification from Lahiri and that from official records it appeared that Gill had been showing undue favour to Lahiri in connexion with the latter's contracts and in particular that Gill showed;

“an amount of eagerness to place orders with accused Lahiri in preference to other firms and that in doing so he wilfully misrepresented facts relating to supply by other competitive firms in order that accused 2 may get the orders for supply.”

3. On these averments the Police Officer who filed the petition complained that accused Gill had received illegal gratification from accused Lahiri (Ss. 161 and 161 read with S. 109, Penal Code, respectively) and

“also from the manner and circumstances in which the tenders of accused Lahiri were accepted by accused Gill, there is reason to believe that they entered into a criminal conspiracy to commit offences under Ss. 420 and 417, Penal Code.”

4. Finally the petition recited consent under Section 270 of the Government of India Act, 1935, and sanction under Section 197 of the Cr PC, and consent under S. 196A(2) of the same. The trial before Mr. Gupta opened on 5-4-1943. He framed charges on 4-5-1943, viz., against both the accused under S. 120B read with S. 420 and against accused Gill under S. 161 and accused Lahiri under S. 161 read with S. 109, Penal Code. The charge against both accused set out the object of the criminal conspiracy as being

“to cheat the Government of India in the Department of Supply by dishonestly or fraudulently inducing its Financial Officers to pay larger sums of money than due (in respect of specified contracts) by means of false representation regarding … the rates quoted by Baranagore Engineering Works and character and capacity of supply made by them in preference to those of other firms.”

5. The latter charges were based on the payment of Rs. 500 by cheque (Ex. 4) “as gratification other than legal remuneration for showing, in the exercise of your official functions” favour to accused Lahiri in the matter of a particular contract. It will be seen that there was a general charge of conspiracy to cheat and particular charges of bribery in respect of one particular sum in connexion with one particular contract. On 29-6-1943 Mr. Gupta recorded the examination of both the accused under Section 342 of the Cr PC, and on 19-8-1943, he acquitted them both.

6. Mr. Gupta observed in the reasons for his decision that the indictment was for conspiracy to cheat and not for a general giving and taking the bribes. He also drew attention to the principle that a conviction can be based on circumstantial evidence only when “no other interpretation and construction can be placed upon it than that of the guilt of the accused.” Mr. Gupta discussed, briefly but sufficiently, the evidence relating to the various contracts which have been placed before him. He found, with reference to indents, Exs. 22 and 23, that Lahiri quoted a lower price than the only rival firm; with regard to indents, Exs. 48 and 49, that there was some competition as regards the rates with one other firm, that Gill considered Lahiri's firm preferable although its rates were higher and that after discussion with the Assistant Financial Adviser Lahiri's firm reduced the quotation and the two indents were split up between Lahiri's firm and the rival firm; with regard to indents, Exs. 57 and 58, Mr. Gupta found that

“it does not appear that in any way Government were made to lose over the contract and that anything smacking of dishonesty or unreasonable favouritism was shown;”

7. And with regard to the indent, Ex. 80, he found that no kind of special favour was being shown to Lahiri's firm, that the goods were urgently required and Lahiri's firm “was given the remaining balance of the order at the last moment after other firms had been sought in vain.” The learned Magistrate found it impossible on the evidence to say that the only possible inference was that Gill and Lahiri were parties to a conspiracy to defraud the Government by charging high rates for goods supplied. With regard to the charges relating to the cheque for Rs. 500 Ex. 4, Mr. Gupta pointed out that the Crown has proved only that the cheque was given by Lahiri and its proceeds realised by Gill. The defence was that Gill sold a diamond watch belonging to his wife to Lahiri and this was the sale proceeds and Mr. Gupta found himself unable to hold that the charge as regards this transaction had been proved; he recorded his suspicion that the story of a diamond watch is a concoction but observed correctly, that suspicion cannot take the place of proof. Accordingly Mr. Gupta acquitted both the accused persons.

8. Government filed an appeal against the acquittals which was heard on 8-12-1944, before Roxburgh and Ormond, JJ. Our learned brethren observed;

“It is quite clear that the learned Chief Presidency Magistrate was entirely correct in his findings that the evidence on the conspiracy charge did not support it.”

9. They also observed:

“We have been taken at some length through the evidence and it appears to us that the proper charge in the case should clearly have been one of conspiracy to take (sic give)? and receive bribes.”

10. They, therefore, set aside the order of acquittal and directed a retrial

“on an amended charge of conspiracy to give and receive bribes and also on the charge under Ss. 161 and 161/109, Penal Code, as previously framed.”

11. The order of this Court was placed before Mr. Gupta on 23-12-1944. After hearing arguments he decided on 10-2-1945, that the case would be heard de novo, but before he could actually take up the hearing he received orders of transfer and the hearing eventually began before his successor Mr. W.J Palmer on 8-6-1945. On 22-6-1945, Mr. Palmer charged both the accused as follows: he charged accused Gill and Lahiri with being parties to a criminal conspiracy between March 1941 and July 1942, with the object of the former accepting and the latter giving gratifications other than legal remuneration etc., in the matter of Lahiri's contracts as specified; the separate charges against Gill and Lahiri under Ss. 161 and 161 read with S. 109, Penal Code, respectively were the same as at the hearing before Mr. Gupta mutatis mutandis. At the hearing before Mr. Palmer the case appears to have followed the same general course as it did before Mr. Gupta except that Mr. Palmer called a jeweller to value the diamond watch said to have been sold by Gill to Lahiri and that Mrs. Gill gave evidence on her husband's behalf.

12. In his judgment Mr. Palmer first dealt with the alleged presents other than the payment of Rs. 500 in May 1941. He observed that the evidence for these payments consists of a notebook and four cheques counterfoils discovered in Lahiri's house. It was not denied that the documents were found in Lahiri's house and that the relevant entries were in his handwriting. The first entry was on p. 60 of the note-book (Ex. 10) which reads “Omega watch to Major”; the entry is in pencil, “Omega watch” being on one line, and “to Major” on the next line. Just below the entry is another entry in ink “Rs. 45”. Mr. Palmer considered the defence explanation that the entry consisted firstly of a memorandum concerning an Omega watch (e.g to remind him to take it to be cleaned) and secondly a memorandum to the effect that he had to see a Major on that particular date, viz., 30-4-1941. The learned Magistrate found the explanation “very unconvincing” and he held that the entry means that an Omega watch was given on that date to the Major. It is in evidence that Gill was found later to be wearing an Omega watch. The learned Magistrate next considered three other entries in the note-book; on p. 39, under the date 29-4-42 is a pencil entry “Major Gill 400” and on p. 131 under date 5-3-42 an entry in ink “Rs. 500 Major Gill”. Then on p. 179 under the date 12-1-42 an entry “Major Gill 200”. The learned Magistrate considered Lahiri's explanation of the entries as representing payments made by him towards the expenses of contracts given to him by Major Gill, and found that this also was “very unconvincing” and that in the Magistrate's opinion the entries indicated payment made to Gill. Next the learned Magistrate considered four entries on the counterfoils of cheques. The first dated 16-1-1942, (Ex. 9-2) is an entry reading “Rs. 500 Gill” on the counterfoil of a cheque for Rs. 800 drawn by Lahiri in favour of self; the next dated 24th January is an entry simply “Gill” on the counterfoil of a cheque for Rs. 200 drawn by Lahiri in favour of self; the next (Ex. 8-1) is in pencil reading “Major 400, 19-4-42” on the back of the counterfoil of a cheque for es. 1000 drawn by Lahiri in favour of self; finally, Ex. 7-1 is an entry in ink reading “A/C Major 1000” on the counterfoil of a cheque for Rs. 1200 drawn by Lahiri in favour of self. The explanation of these entries being similar to the explanation of the note-book entries, the learned Magistrate held:

“I am entirely unconvinced by his explanation and it seems to me that they represent payments of money by Lahiri to Gill.”

13. The learned Magistrate recorded that there was no suggestion before him that there was any other Gill and held that the only reasonable conclusion consistent with the facts was that the entries all related to presents made by Lahiri to Gill. With regard to the payment of Rs. 500 admittedly made by Lahiri to Gill on 21-5-1941, by means of the cheque Ex. 4, the learned Magistrate considered the evidence of Mrs. Gill that the watch was left to her by her father's cousin in 1938 and that as she and her husband were short of ready money in 1941 she gave it to her husband. A gold watch has been produced in Court by Lahiri which has been marked, Ex. 1-A. The learned Magistrate refers to the facts that Mrs. Gill did not give evidence at the previous trial although she was in Calcutta at that time and that in his statement before Mr. Gupta Gill referred to “jewellery” and altered it to a statement that he had sold a watch after Lahiri had made a statement to the effect that he purchased a watch. The learned Magistrate also referred to the evidence of the witness, Mr. Binns that the watch case and setting of the precious stones appear to be of Indian design and workmanship. The learned Magistrate then came to the conclusion that the defence story could not be accepted.

14. With regard to the contracts in respect of which Gill was said to have shown favour to Lahiri, Mr. Palmer also considered the particular contracts in detail and find that with regard to the first contract there was nothing improper in Gill's action on this occasion, that Lahiri tendered at a lower rate and his samples had been approved by the Inspector, that Gill's action was favourable to Lahiri (although not improperly so); the learned Magistrate found it

“significant that this contract was given on 3-4-1941 and that within 6 weeks thereafter Gill received two presents, namely, an Omega watch and a cheque of Rs. 500 from Lahiri.”

15. With regard to the tender for springs in January 194-2, the learned Magistrate found that although Gill's action was favourable to Lahiri the favour cannot be said to have been improper; the learned Magistrate found it

“significant that Lahiri's notes show three cash payments to Gill during January 1942.”

16. With regard to the contract for decking spikes (Ex. 80 (Indent)) the learned Magistrate goes into some detail on the matter of the objections raised by the Financial Officer and held that Lahiri was forced to reduce his price considerably owing to the insistence of the Finance Department despite Gill's notes and found himself

“inclined to doubt Gill's good faith in respect of this contract although … it is possible to argue that his conduct was based on an error of judgment rather than anything else.”

17. With regard to the contract for springs the learned Magistrate again goes into the matter of Gill's notes dated 21st and 27th July (Ex. 77) and the discussions with the Financial Officer and found that

“in view of the result there is no doubt that Government lost nothing and Gill's action cannot be said to have been improper.”

18. The Magistrate held, however, that Gill's conduct was distinctly favourable to Lahiri throughout the transaction and he found that it is significant that in Lahiri's notes we find an entry dated 15th July reading “A/C Major 1000.”

19. The learned Magistrate summed up the position with regard to the contracts as follows:

“Between January 1941 and July 1942 Gill handled four contracts which were given to Lahiri. In no case can it definitely be said that Gill's action was improper although in one case it is somewhat suspicious. Nevertheless, Gill's actions were distinctly favourable to Lahiri in respect of these four contracts (though not necessarily improperly so) and it is impossible not to be struck by the fact that the heaviest payments shown in Lahiri's notes occurred at or about the time when Gill was dealing with these contracts namely April 1941, January 1942 and July 1942.”

20. The learned Magistrate found firstly that the payment of Rs. 500 made by Lahiri to Gill in May 1941 was without lawful consideration; secondly, that Lahiri also made a series of presents consisting of a watch and sums of money to Gill between April 1941 and July 1942; and finally that Gill during the same period handled the contracts in a manner distinctly favourable to Lahiri although the learned Magistrate found himself unable to

“hold definitely that there was anything improper done in the sense that Government incurred any loss or that Lahiri obtained any contract which he ought not to have obtained.”

21. He, therefore, found it “safer to give the accused the benefit of the doubt under S. 161 and to convict under S. 165;” and he did so accordingly. With regard to sentence the learned Magistrate took the facts into consideration; in particular he believed that Gill accepted a number of comparatively small presents from Lahiri and in the absence of proof that Gill acted improperly in handling contracts as a result of those payments or that Government suffered loss he held that short sentences of imprisonment would meet the ends of justice. He also imposed sentences of fine sufficient to make the whole sentence appealable, explicitly in order that the accused should have a right of appeal.

22. We now proceed to deal with the arguments before us. Mr. Barwell for Gill submitted that the charges were had on their face and had in law. He complained that no common object was alleged in the conspiracy charge but disparate objects viz., giving and taking. He also complained that no particulars were given of what was done in pursuance of the conspiracy and that his client was not convicted on the conspiracy charge as framed but on an implied charge treating S. 165, Penal Code, as a minor offence to S. 161, Penal Code. He complained that this was not legal with a conspiracy charge. Mr. Barwell referred inter alia to the case reported in 42 C.W.N 1291 [Golok Behari Takal v. Emperor].

23. For the Crown Mr. A.K Basu submitted that the cases relied upon by the appellant dealt with instances where there had been a change in the course of the proceedings with regard to which it could be held that the accused had not had an opportunity of defending himself and had no application in the present case where the accused had full opportunity of defending himself and the Court had found that the prosecution (had not made good its charge under a particular section of the Penal Code (viz., S. 161), but had made out its case under a closely allied section viz., S. 165. He put it that the Court was bound to convict on the conspiracy as found on the evidence and not necessarily on the conspiracy as set out in the charge, and that the decision referred to 42 C.W.N 129 was no authority for any general proposition to the contrary. In our view, Mr. Basu's argument is correct and we accept it. With regard to the argument that there is no common intention set forth, we fail to see how giving and receiving as parties to the same transaction can be two disparate objects. Similarly, we have no doubt that it was not necessary on the facts of the present case to give particulars of what was done in pursuance of the conspiracy.

24. Next Mr. Barwell argued that the learned Magistrate had discarded the explanation of the accused with regard to the cheque for Rs. 500 admittedly paid by Lahiri to Gill in May 1942. He submits that the learned Magistrate has made too much of the use of the word “jewellery” in the statement under Section 342 of the Cr PC, before Mr. Gupta, and its subsequent correction to refer to a watch, and has not taken into consideration the fact that the explanation was put forward when called upon to make the statement under Section 342 of the Cr PC. Mr. Barwell farther complained that Mr. Palmer had made too much of the fact that Mrs. Gill had not given evidence at the trial before Mr. Gupta; Mr. Barwell reminded us that it is unusual to examine defence witnesses, that the accused were entitled to take their stand on the weakness of the prosecution case and that in fact the proceedings before Mr. Gupta resulted in acquittal. Further Mr. Barwell submits that the evidence does not support the learned Magistrate's finding that the watch is

“deary of Indian design and workmanship (apart from the movement) and is the sort of watch which Lahiri might very well possess but which an English lady would be most unlikely to inherit from a relative.”

25. On referring to the evidence of the Court witness, Mr. Binns, a jeweller of experience and manager of a reputed firm of jewellers in Calcutta, we find in examination in chief that the case is locally made and that “it is possible that it was sold in England, but more likely that it was sold in India.” In cross-examination he says that he is certain that the case is locally made and hand made. It should be noted that the watch with its case is removable from the comparatively intricate setting containing the jewels. With regard to the setting, the Magistrate himself asked certain questions in answer to which the witness' stated that the setting of the jewels was in his opinion Indian but it might be European. The witness also said that “individuals take watches to Europe fairly frequently, but there is no regular trade.” Both Mr. Barwell and Mr. N.C Chatterjee for the appellant Lahiri submitted that the mere fact that Lahiri had himself signed and endorsed the cheque and that Gill had openly cashed it with his own endorsement as well as that of the person to whom payment had been actually made, pointed to a lack of secrecy over the transaction and, therefore, to its problem (probable?) honesty.

26. In our opinion the arguments of learned counsel for Gill and Lahiri have considerable weight. The accused person is not bound to prove beyond reasonable doubt the truth of the explanation which he gives. The Court cannot discard the explanation of the accused unless it finds itself unable to believe it on the evidence. Here we find an admitted payment of Rs. 500, an explanation set up at the earliest opportunity, and the evidence which might have rebutted it, namely, the evidence of Mr. Binns, somewhat guarded in its terms. We are unable to find that this transaction is more than suspicious and on this view it is our duty to set aside the convictions under S. 165 and S. 165 read with S. 109 i.e, the convictions on the specific charges based on the cheque for Rs. 500 (Ex. 4) and we do so accordingly.

27. This disposes of Mr. Barwell's criticism that Mr. Palmer had misused the Sections 14 and 15 of the Evidence Act, when letting in evidence of the different payments indicated in the note book and the cheque counterfoils not only as proof of the conspiracy but also as

“facts tending to show the intention or lack of good faith on the part of the parties in connexion with the payments of Rs. 500 in May 1941 which form the subject-matter of the separate charge.”

28. We now proceed to consider the judgment so far as it dealt with the charge of conspiracy. With regard to Mr. Palmer's finding that the entry in the note book under the date 13-4-1941, means that Lahiri gave Gill an Omega watch on that date, learned counsel for both accused have submitted to us that the Evidence is too vague to support any such finding. They pointed out that there was no evidence that the watch recovered from Gill was the watch referred to in the pocket book and it is true that the watch recovered from Gill bears a number as noted in the search list, Ex. 1, and there is no evidence referring to the watch as conclusively identified by that number. Mr. N.G Chatterjee refers particularly to the complete absence of identification in the evidence of P.W 25, who deposes that he sold an Omega watch to Lahiri and that it was similar to Ex. 1, and of P.W 6 who says he oiled and cleaned a wrist watch for P.W 25 and that it was similar to Ex. 1. Mr. Chatterjee also points out that there is no evidence that the watch recovered from Gill was given to him by Lahiri and with regard to the evidence that Lahiri wanted to buy an Omega watch, that Lahiri had himself produced an Omega watch. It is also stated before us that lie Omega watches are a well-known Swiss make and have been in use in large numbers for many years. In this instance also we do not consider that the learned Magistrate assigned sufficient weight to the considerations now placed before us. In our view it is not safe to come to a finding that the Omega watch found with the accused Gill is the Omega watch referred to in the pocket book, Ex. 10, and we exclude this part of the evidence from consideration against the accused.

29. With particular reference to the case of the appellant Lahiri, Mr. N.C Chatterjee had referred us to the entries in the note book and the counterfoils. These have already been discussed when summarising Mr. Palmer's judgment. Mr. Chatterjee submits that there is no evidence that money was paid by Lahiri to Gill or received by Gill; that there are no corresponding figures in Gill's bank account, and that no inference should be drawn because entries mentioned Major Gill's case (name?). This argument of Mr. Chatterjee did not impress us. The explanation of Lahiri himself was that the entries related to payment on contracts given to him by Major Gill so that at any rate the entries must refer to Major Gill; further we observe that the relevant entries are not only entries in a note book which as a matter of ordinary common practice do in practice and fact usually refer to payments but also entries on counterfoils of cheques which also in practice and in fact refer to payments. The argument that no corresponding figures appear in Gill's bank account is in our opinion inept; the transactions appear on their face to have taken place in cash and it is not to be expected that the corresponding amounts would have been paid into the receiver's banking account. In our opinion the entries in the note book taken together with the entries in the counterfoils are explicable only on the hypothesis that Lahiri gave the amounts mentioned to Gill and we agree, therefore, with the learned Magistrate's finding that the conspiracy is established.

30. It remains to consider the argument placed before us by Mr. Barwell after Mr. A.K Basu had begun to reply for the Crown; he pressed the added ground No. 25 “for that the trial has been vitiated for want of sanction under Section 197 of the Cr PC and Section 270 of the Government of India Act, in regard to the charge under S. 165, Penal Code.” The ground does not explicitly refer to the conspiracy charge but the argument proceeded on the basis that it did and we take it that it does so refer. With regard to Section 270 of the Government of India Act, Mr. Barwell conceded that the consent was good for the trial before Mr. Gupta but could not operate as a consent to the trial before Mr. Palmer. With regard to the sanction under Section 197 of the Cr PC, he submitted that it was had in itself and in any event would not cover the trial before Mr. Palmer. His submission was that the conspiracy charge in the second trial was materially different from the conspiracy charge in the first trial to which the attention of the consenting and the sanctioning authorities had been applied. The matter was argued at some length in spite of Mr. A.K Basu for the Crown interposing and taking up the position that no consent under Section 270 of the Government of India Act, nor sanction under Section 197 of the Cr PC, exists but that neither is necessary. Mr. Basu referred us to 48 C.W.N (F.R) 109 [Huntley v. Emperor]2 and submitted that this case finally removed the necessity of consent under Section 270 of the Government of India Act, in case such as the present and further submitted that the grounds, on which it is based, apply also to Section 197 of the Cr PC. In our view Mr. Basu rightly submits that 48 C.W.N (F.R) 109 finally decides that there is no necessity for a consent under Section 270 of the Government of India Act, 1 in the present case. 48 C.W.N (F.R) 109 held that in order to attract the provisions of Section 270(1) of the Government of India Act, it is necessary that the act complained of should be an official act. Receiving illegal gratification, cannot be an official act, that is, an act done or purporting to be done in execution of duty. Accordingly no sanction under Section 270(1) of the Government of India Act, is necessary for the prosecution of a public servant for taking bribes. Following this case off the Federal Court, as we are bound to do, we hold that no sanction under Section 270(1) of the Government of India Act, 1935, is required in the present case. With regard to Section 197 of the Cr PC, at p. 111 of the report their Lordships found it unnecessary to decide whether the acts contemplated by S. 197 of the Code are the same as those covered by Section 270(1) of the Constitution Act. Mr. Basu drew our attention to Revn. case No. 166 of 1944 (Judgment on 18-10-1944) where Henderson and Sharpe, JJ., held that 48 C.W.N (F.R) 109 decided that neither Section 270 of the Government of India Act, nor Section 197 of the Cr PC, applies to a case of this kind. We shall consider this case further in para. 23.

31. While the judgment in this case was being considered the judgment in Criminal Revn. No. 747 of 19453 [Harendra Chandra Barori v. Emperor] was placed before one member of the present Bench while sitting on a Division Bench hearing criminal appeals. As the other member of the present Bench was a party to the said judgment we considered it proper to give learned counsel an opportunity of being further heard on the matter of sanction; more particularly in view of the attitude taken up by learned counsel for the Crown as referred to in paragraph 17 above.

32. In criminal Revn. No. 747 of 19453 it was held by a Division Bench that prosecution for an offence under S. 161, Penal Code, required sanction of the Provincial Government under Section 197 of the Cr PC. The judgment continued;

“In this view we are unfortunately in disagreement with that expressed in [Khorshed Ahmed v. Amanulla] 44 C.W.N 735,4 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.”

33. The judgment dealt with differences of judicial opinion, before the amendment of Section 197 of the Cr PC in 1923, as to the extent of protection given by the old section but observed that

“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.”

34. The judgment further referred to 26 Cal. 8525 [Nando Lal Basak v. N.N Mitter] which referred to a Circular Order No. 20 of 1864, issued by this Court under the Code of 1861 for the guidance of inferior Courts, pointing 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.”

35. A number of cases appear in this judgment to have been placed before the Court indicating that the sanction is intended to apply to cases in which an offence is charged. With regard to the amendment in 1923 the Court held that it did not intend to restrict the number of cases in which sanction was required. The conclusion of the Court appears conveniently in the following extract:

“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 44 C.W.N 735. But as pointed out by Seshagiri Ayyar, J. in [Sankaralinga Tevan… v. Avudai Ammal…Opposite Party.] 35 I.C 826,6 quoted in [Ram Singh v. S.A Rizvi*] 14 Pat. 299.7 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 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 of the Cr PC, that the sanction of the Provincial Government is necessary for the prosecution of officers of the class described therein for the offence of bribery.”

36. Mr. Barwell for the appellant Gill based his argument on the present topic on the position that S. 197 is expressly a protection in the first instance for servants of the Crown and ultimately for the State generally against undue harassment through its servants; that the protection is qualified; for example, there is no protection where the act complained of has no relation to the duties of the servant of the Crown (e.g, if the servant of the Crown pays a private bill with a cheque which to his knowledge will not be met) but where the accusation is of an offence which the status of the servant of the Crown as such places him in the position to commit, then in Mr. Barwell's submission, the protection is attracted. With regard to the decision reported in 44 C.W.N 735 Mr. Barwell submits that no authority was cited and that the learned Judges decided the matter on principle, a principle which in his respectful submission is fallacious. Mr. Barwell developed the argument that if the sanction does not apply where the servant of the Crown is charged with acts constituting an offence the result is a reductio ad absurdum as pointed out in certain Madras cases. He craved in aid the reasoning in [Gangaraju v. Venki] 52 Mad. 602.8 In that case a Division Bench held that

“the question is not as to the nature of the offence, such as, whether the alleged offence contained ‘an element necessarily dependent upon the offender being a public servant’, but whether it was committed by a public servant acting or purporting to act as such, in the discharge of his official duty.”

37. This decision being in 1928 dealt with the section as amended in 1923, and adopted the observation of a single Judge of the same Court in 35 I.C 826 that

“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 such an offence.”

38. Mr. Barwell also placed before us the decision in 14 Pat. 299, one of the cases which were before the Bench which dealt with Crim. Revn. no. 747 of 1945. Mr. Barwell put his point that as against the decision of this Court in 44 C.W.N 735, which he respectfully described as unreasoned, there were a number of reasoned decisions to the contrary.

39. For the appellant Lahiri, Mr. N.C Chatterjee drew our attention to the decision of a Special Bench in [R.C Pollard…Accused; v. Satya Gopal Mazumdar] 45 Cr. L.J 224 : A.I.R 1943 Cal. 594.9 This judgment was delivered on 24-8-1943; the date of the judgment in 44 C.W.N 735 was 17-4-1940. The Special Bench in A.I.R 1943 Cal. 594 consisted of Derbyshire, C.J and Khundkar and Lodge, JJ. The learned Chief Justice dealt with certain aspects of the case in detail but does not appear to have adverted to the question of sanction. The other learned Judges both referred to question of sanction. Khundkar, J. at p. 236 observed:

“One such purpose affects the question whether Section 197 of the Cr PC, applies to the facts, disclosed. The evidence now before us makes it plain that it does. I agree with my learned brother that the offence which the accused was charged with committing was one alleged to have been committed by him while acting or purporting to act in the discharge of his official duty as a Police officer within the meaning of Section 197 of the Cr PC”

40. At page 238 Lodge, J. poses as one of the two material questions for consideration: “Was the Court entitled to take cognizance of the alleged offence in view of the provisions of Section 197 of the Cr PC” After discussing a particular view on the question whether the applicability of the section is to be decided by reference only to the statements made in the petition of complaint, our learned brother proceeded to deal specifically (at p. 239) with the argument that it was not Mr. Pollard's duty to assault the complainant and therefore Mr. Pollard was not within the protection of the section and observed that Section 197 of the Cr PC.

“applies when the Public Officer does something more than his duty — something which is not his duty provided that he does it while he is acting or purporting to act in the discharge of his official duties.”

41. Mr. Chatterjee candidly conceded that he could not submit to us that the judgment of the Special Bench decided the question of S. 197 but put it that the learned Chief Justice must be taken, at the very least, not to have intended to differ from the observations of the other two learned Judges in this behalf and that the topic of S. 197 having been fully considered in A.I.R 1943 Cal. 594 in 1943, this Bench ought to give due weight to the decision in A.I.R 1943 Cal. 594 in 1943 as against the decision in 44 C.W.N 735 in 1940, the learned Chief Justice and Bartley, J., being the parties to the decision in 44 C.W.N 735. Mr. Chatterjee also addressed us on the position that if the charge against the appellant Gill fails for any reason, the appellant Lahiri becomes automatically discharged of the charge of the conspiracy and that the same principle would apply to the charge of abetment: vide [Emperor v. Fazal Rahman] 38 Cr. L.J 104210 at p. 1046 and [Ramchandra Rango v. Emperor] A.I.R 1939 Bom. 12911 at p. 137.

42. For the Crown, the Advocate-General did not adhere to the position referred to in para. 17 that no sanction under Section 197 of the Cr PC, was required since the decision in 48 C.W.N (F.B) 109. He submitted that sanction was necessary but that the original sanction covered the trial at all stages; the second trial was a continuation of the first trial; on retrial the Magistrate does not take cognizance again, but hears the case over again in accordance with the directions issued by this Court in the exercise of its powers under Section 423 of the Cr PC; the sanction under Section 197 of the Cr PC, removes the bar from taking cognizance and once the bar is removed, it is removed finally. He refer, red to the decision in [The Emperor; v. Sri Narain Prasad…Accused.] 25 ALL. 53412 for the proposition that the order by an appellate Court altering the section under which a conviction is recorded does not attract preliminary requirements, such as a complaint by a person prejudiced. The learned Advocate-General also argued, evidently as an alternative position, that conceding the difference between Section 270 of the Government of India Act, 1935, and Section 197 of the Cr PC, there was no necessity of sanction in a case where the facts alleged against the public servant set up a prima facie case of an offence. He referred to the case in [Hori Ram Singh v. Emperor] (1939) 1 F.C.R 159,13 particularly at pp. 178 and 187 but did not draw our attention to any cases which met the cages already referred to in the argument of learned counsel for the appellant Gill for the proposition that if the protection of Section 197 of the Cr PC, does not protect against an accusation of an offence, it becomes illusory.

43. In his reply Mr. Barwell referred to certain unreported decisions which had been said at an earlier stage to have held that the decision in 48 C.W.N (F.R) 109 also covered Section 197 of the Cr PC. He referred us first to criminal Revision No. 968 of 1943 decided by Khundkar and Roxburgh, JJ. on 2-8-1944. In that case the question arose whether the accused was of a class protected by Section 197 of the Cr PC, and it was held that he was not. On that view the Court found that it was unnecessary to discuss the question whether the offence under S. 161, Penal Code, can come within the terms of Section 197 of the Cr PC. The Court also observed

“that this was also left open in the judgment of the Federal Court in the case already referred to, i.e, 48 C.W.N (F.R) 109.”

44. The other unreported case is Criminal Revision No. 166 of 1944, decided on 18-10-1944, by Henderson and Sharpe, JJ. The Rule was issued inter alia on ground No. 1, that the proceeding before it was void ab initio in the absence of sanction under Section 270 of the Government of India Act. The judgment of the Court contains the following passage:

“The first ground raises a most important point. It is now however concluded by the decision of the Federal Court in 48 C.W.N (F.R) 109. The learned Judge there held that neither Section 270 of the Government of India Act, nor Section 197 of the Cr PC, applies to a case of this kind. This ground must accordingly be overruled.”

45. It is submitted by Mr. Barwell that the judgment in 48 C.W.N (F.R) 109 expressly leaves open (at p. 111) the question whether the acts contemplated by Section 197 of the Cr PC, are the same as those covered by Section 270(1) of the Constitution Act. In our opinion, there is no answer to this and the observation so far as it refers to Section 197 of the Cr PC, must be regarded as having been made per incuriam.

46. Finally Mr. Barwell argued that the cognisance must be, in the words of Section 197 of the Cr PC, “of such an offence” that is of the offence alleged to have been committed by the accused while acting, etc., in the discharge of official duty. Mr. Barwell contended that the act in respect of which sanction was given was in substance an offence of cheating whereas the act in respect of which the trial at the re-hearing proceeded was in substance an offence of taking bribes in order to show favour. He contended that the charges so materially altered the accusation which his client was required to answer that there was in substance a new trial, a new contention between the Crown and the subject, and that there should therefore have been a new giving of sanction. When pressed however Mr. Barwell was unable to refer us to any authority directly in point, viz., that the Crown was legally bound to enter into the question of sanction afresh on a re-hearing under an altered charge being ordered by an appellate Court.

47. On this part of the case, we have detailed the arguments and the replies to them somewhat fully. We do not propose to discuss them anew. Suffice it to say that we follow the decision in Criminal Rev. No. 747 of 1945. In our view sanction under Section 197 of the Cr PC, was required in the present case; such a sanction is on record. It is a sanction to the Court to take cognizance of an offence alleged to have been committed by the appellant Gill while acting or purporting to act in the discharge of his official duty. In our view, on that sanction being granted the bar to taking cognisance was lifted, as the learned Advocate-General submitted to us, and thereby the provisions of the Code of Criminal Procedure were altered. Those provisions include the powers of this Court under S. 423 of the Code. On those powers being exercised, proceedings after taking cognisance were affected, but in our view the taking of cognisance was not affected, and a fortiori lifting of the bar to a taking of cognisance was not affected. We find that the conviction of Gill, if otherwise in order, is not to be set aside on the ground that his trial was illegal in the absence of sanction.

48. It follows from the foregoing that we set aside the convictions of the appellants under S. 165, Penal Code, and S. 165 read with S. 109, Penal Code, also that we maintain the convictions under S. 165 read with S. 120-B, Penal Code. This brings us to a consideration of the application in revision. The application recites the opinion of the Local Government that the sentences are very lenient in view of the gravity of the offence and gives as a substantial ground for enhancement

“for that the learned Magistrate's findings amount to the commission of the more serious offence under S. 161, Penal Code, although the learned Magistrate recorded a conviction under S. 165 and as such the sentence is much too lenient.”

49. The question was actively canvassed whether the Court had the power to enhance the sentence above the limits set by S. 165 read with S. 120-B without altering the conviction to a conviction under S. 161 and further whether this Court in any event had the power to alter the conviction under S. 165 to a conviction under S. 161. But it is not necessary to discuss the arguments in detail as we are clearly of opinion that whether we possess the power or not, we should not consider the question of altering the conviction from S. 165 to S. 161 on the terms of the present application as the application has not given the accused persons notice; moreover, the Privy Council held in the case reported in 33 C.W.N 114 [Kishen Singh v. Emperor] that where there has been an acquittal of a charge the High Court has no power to convert in revision a finding of acquittal into one of conviction and that the conversion can only be made by way of an appeal by the Provincial Government. In the present case although there is no acquittal in explicit terms under S. 161 the language used by the learned Magistrate, giving the benefit of the doubt under S. 161 and convicting under S. 165, necessarily implies an acquittal under S. 161 and we hold that we have no jurisdiction in revision to alter the conviction from one under S. 165 to one under Section 161.

50. The consequence is that the maximum sentence in these cases will be 6 months' imprisonment as provided by S. 165 read with S. 120B, Penal Code. Bearing this in mind we consider that sentences imposed by the learned Chief Presidency Magistrate viz., 3 months' simple imprisonment covering both the charges were suitable in all the circumstances to which he adverted. We, therefore, maintain the sentences. As we have set aside the convictions under Section 165 and Section 165 read with Section 109 of the Cr PC, and as no separate sentences have been passed under S. 165 read with S. 120B, Penal Code, we now pass a sentence of 3 months' simple imprisonment on each of the appellants under S. 165 read with S. 120B, Penal Code.

51. With regard to the sentences of fine we observe that they were imposed explicitly for the purpose of giving a right of appeal. That right of appeal having now been exercised we find no useful purpose in maintaining the sentences of fine. Except as just stated, the rule is discharged. The appeals are allowed in so far as they deal with the convictions of the two appellants under S. 165, Penal Code, and under S. 165/109, Penal Code, and are dismissed in so far as they deal with the convictions under S. 165 read with S. 120B, Penal Code. The appellants will surrender forthwith to their bail and serve their sentences. The fines, if paid, will be refunded.

Ellis, J.:— I agree.

D.R/D.H

52. Order accordingly.