Broomfield J.:—

The appellant Desaibhai, who was a Matadar Patel of the village of Sinjivada, was prosecuted along with one Becharbhai, acting Talati of the same village, for dishonestly secreting or destroying a registered mortgage deed alleged to have been handed over to them by the complainant Vithalbhai, an offence under section 477 of the Indian Penal Code. The appellant has been convicted and sentenced to two years' rigorous imprisonment and a fine of Rs. 300. The second accused, the Talati, was acquitted.

The prosecution case is briefly as follows. Vithalbhai owns a field in the village of Sinjivada which he had mortgaged for Rs. 600 to one Bai Lakhi. In October 1933 he paid Bai Lakhi Rs. 600 in full satisfaction and got back the mortgage deed with an endorsement of satisfaction written on it. Soon after that Bai Lakhi died. After some months, on June 7, 1934, Vithalbhai with the witness Jivabhai went to the house of the first accused and asked him to get an entry, made about the satisfaction of the mortgage deed in the Record of Rights. On being told that Bai Lakhi was dead the Patel said that the record could not be changed unless he were paid Rs. 200 or Rs. 250. Vithalbhai declined to pay any money and he went and consulted one Mahmedbhai, who was Talati of a village in the Cambay State. He showed the document to him and asked him if there was any reason why the mutation should not be made in the Record of Rights and he said no. The next day, i.e, June 8, 1934, Vithalbhai took Mahmedbhai with him to the village chora of Sinjivada. On that occasion both the accused were present. The mortgage-deed was again produced but not at once handed over. The accused said that as Bai Lakhi was dead further evidence was necessary and Vithalbhai was asked to obtain witnesses. Accordingly he went away and came back the same day with Jivabhai and Rambhai who had written the endorsement on the mortgage-deed. On this occasion the document was given to the Patel who handed it to the Talati in order that the statements of witnesses should be recorded. Statements of Vithalbhai, Jivabhai and Rambhai were then taken down by the Talati and signed by him and by the Patel. The Talati then asked Vithalbhai to produce an extract from the Death Register proving the death of Bai Lakhi, and the mortgage-deed was taken charge of by the Patel who took it from the Talati, telling the latter that when the extract from the Death Register was produced he should ask him for the document. It remained therefore with the Patel, accused No. 1.

On June 10, 1934, the complainant produced an extract from the Death Register and he was then told by both the accused that the mortgage deed and the statements and the extract from the Death Register would be forwarded to the Mamlatdar for his orders. A month later Vithalbhai went to the chora and asked accused No. 1 for the document and was told that it had not been received from the Mamlatdar two months later he went again, made the same request and received the same answer. He went again two months later with the same result. On all these occasions the Talati was not present.

Some time about the beginning of February 1935 Vithalbhai went to the chora to pay assessment for the land as usual. But the Patel refused to accept the assessment for that year because he said the amount paid for the previous year still remained to Vithalbhai's credit in his account. As the assessment had always been accepted before, the Patel's refusal to accept it roused Vithalbhai's suspicions. He suspected that the Patel must be colluding with the relations of Bai Lakhi who had been making an attempt to get possession of the land. So after two or three days Vithalbhai went back to the Patel and asked for the mortgage-deed. Then for the first time the patel said that he had not got the document but it was with the Talati. Vithalbhai went and asked the Talati who had by that time been transferred to another village. The Talati said that the document was with the Patel. On a subsequent occasion the same thing happened. Vithalbhai went and asked for the document. The Patel Said that the Talati had it. Vithalbhai went and asked the Talati, who by then had been transferred again, and he got the same reply that the document was with accused No. 1. On this occasion the Talati gave the complainant a letter addressed to the Patel. This is exhibit 8, dated February 3, 1935, in which the Talati said that it was absolutely false that the mortgage-deed was with him and asked the Patel to hand it over to the complainant. As he was unable to get his deed back either from the Patel or the Talati Vithalbhai went to the Mamlatdar on February 5, 1935, and asked for an inquiry into the conduct of the two accused and for the return of his document. The Mamlatdar held an inquiry, but the mortgage-deed was not recovered, and on June 25, 1935, Vithalbhai lodged a criminal complaint of an offence under section 477 of the Indian Penal Code against the Patel and the Talati before the First Class Magistrate of Matar.

That Magistrate examined the complainant in verification of the complaint and issued warrants against the two accused. They appeared before him before the warrants were served and on behalf of accused No. 1 an objection was taken that the proceedings were illegal for want of proper sanction. Section 197 of the Criminal Procedure Code was not specifically referred to but was no doubt intended. That section provides that when any public servant, who is not removable from his office save by or with the sanction of the local Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the local Government. Accused No. 1 the Patel is a public servant not removable from his office except with the sanction of the local Government. The Magistrate then proceeded to obtain the necessary sanction from the local Government and in due course a Government Resolution was passed in January 1936 in the following terms:—

“Sanction is accorded under section 197 of the Code of Criminal Procedure, 1898, to the prosecution of Desaibhai Khushalbhai, Revenue and Police Patel of Sinjivada, Taluka Matar, District Kaira, for an offence punishable under section 477 of the Indian Penal Code, or such other section or sections of the latter Code as may be applicable to the facts of the case.”

The papers of the case were then forwarded to the First Class Magistrate of Kaira. Incidentally it should be mentioned that the First Class Magistrate, Matar, who had originally received and verified the complaint, had been transferred and had been succeeded by a Second Class Magistrate. The First Class Magistrate, Kaira, asked for formal orders of transfer of the case to him and it was duly transferred to him for trial on February 11, 1936. Fresh warrants were issued and the Magistrate proceeded to inquire into the case, recorded evidence and committed it to the Sessions Court, where it was tried by the Additional Sessions Judge.

The first point taken in the appeal is that the provisions of Section 197 of the Criminal Procedure Code have not been complied with. It is contended that the sanction is not in the proper form and does not specify with sufficient clearness the offences for which prosecution of the appellant was permitted. The learned counsel for the appellant has relied on Queen-Empress v. Samavier. It was held in that case that an order by the Board of Revenue, Madras, sanctioning the prosecution of a Deputy Tahsildar by the Collector of the District for “bribery or such of the charges set forth in the Deputy Collector's report as he thinks likely to stand investigation by a criminal Court” is not a legal sanction within the meaning of the Criminal Procedure Code. But, as has been pointed out in Emperor v. Madhav Laxman, what happened in the Madras case was that Government had delegated the power of selecting charges without satisfying itself that the facts justified a prosecution. The position is quite different in this case. The preamble to the Government Resolution in which the sanction is given sets out the whole of the facts. The sanction was given for a prosecution for the offence which those facts might be held to disclose. Section 477 was specifically mentioned, and it was under that section and no other section that the accused were prosecuted. In Emperor v. Madhav Laxman sanction had been given to prosecute “for cheating or for such other offence for which it may be necessary to prosecute in connection with obtaining money from ryots.” It was held that the sanction was not invalid and that it sufficiently designated the offence or offences which might be established in connection with obtaining money from ryots. In Imperatrix v. Lakshman Sakharam, Vaman Hari and Balaji Krishna the sanction directed the prosecution of a public servant “under section 466 or any other section which may seem applicable after further investigation.” It was held that a sanction in that form was perfectly legal. I think, therefore, that there is no substance in this argument.

It is next contended that section 197 requires previous sanction, i.e, sanction before cognizance is taken by the Magistrate. Under section 200 of the code a Magistrate who takes cognizance on complaint is required to examine the complainant on oath before taking further proceedings. The First Class Magistrate, Matar, duly verified the complaint but that was before sanction had been obtained. The First Class Magistrate, Kaira, merely filed the complaint and did not obtain a fresh complaint or get it verified again. According to Mr. O'Gorman's argument, the proceeding which began with the verification by the First Class Magistrate, Matar, must be treated as one continuous proceeding, the whole of which is vitiated by the omission to obtain previous sanction. The learned Additional Sessions Judge in his order dealing with this point has expressed the opinion that cognizance is not taken within the meaning of section 197 until the Magistrate commences to take evidence and also that in the case of offences triable exclusively by the Court of Session it is sufficient if sanction is obtained before the Sessions trial begins. The learned Government Pleader has not argued in support of this view, and I am unable to accept it. To satisfy the formal requirements of the law the First Class Magistrate, Kaira, before re-commencing the proceedings should have again examined the complainant and verified his complaint instead of merely taking on record the complaint verified by his predecessor. On the other hand, I cannot regard this as anything but a purely technical irregularity which does not vitiate the proceeding. For all practical purposes the proceedings commenced afresh after the transfer of the case to the First Class Magistrate, Kaira, and the issue of fresh warrants by him. In spirit and in substance section 197 was complied with. Nothing was omitted except the repetition of the verification of the complaint which under the circumstances would have been a mere formality. The complainant was of course examined as a witness in the inquiry before the Magistrate and at the trial. The omission to examine the complainant under section 200 of the code, it has been held, is an irregularity which does not vitiate the proceedings: Bhairab Chandra Barua v. Emperor, Emperor v. Bateshar, Chairagh Din v. The Crown.

Mr. O'Gorman has drawn our attention to Emperor v. Bhimaji Venkaji, and Emperor v. Kalu Mahadu. In the first of these cases the whole of the evidence had been taken before the order of sanction was placed on record. In the second case no sanction of the Local Government was ever obtained at all. These cases therefore obviously stand on a different footing.

Then there is also section 532 of the code which empowers a Court of Session to accept an irregular commitment if it considers that the accused has not been injured thereby, unless during the inquiry and before the order of commitment, objection was made on behalf either of the accused or of the prosecution to the jurisdiction of the Magistrate. The Additional Sessions Judge applied this section and accepted the commitment and in my opinion he was justified in doing so. It cannot be suggested that the accused had been prejudiced in any way by the omission to verify the complaint afresh, and no objection was taken to the jurisdiction of the Magistrate after the sanction of Government had been obtained and the committal inquiry really commenced. The objection taken at the time of the bail application was to the prosecution going on without the sanction of Government. It was never suggested that it could not go on after that sanction had been obtained without a fresh complaint or a fresh verification. If the point had been taken the technical omission could have been remedied at once. If any authority is needed as to the application of section 532 in a case of this kind, it may be found in Queen-Empress v. A. Morton and Moorteza Ali and Queen-Empress v. Bal Gangadhar Tilak.

Lastly, Mr. O'Gorman suggested that the sanction was bad because it was not addressed to any particular Court or Officer. This argument is based upon the second clause of section 197 winch says that Government may determine the person by whom, the manner in which, the offence or offences for which, the prosecution is to be conducted, and may specify the Court before which the trial is to be held. There is nothing in the section which in my opinion requires that the sanction should be addressed to any particular Court or officer or that orders under the second part of the section should necessarily be passed in every case. It is conceded that in this respect the sanction issued by Government follows the ordinary form and no authority has been cited for the view that anything more is required by the law. I hold, therefore, that the preliminary legal objections are not sustainable.

Coming to the merits of the case, it is not now disputed that Vithalbhai handed over the mortgage-deed at the village chora on or about the June 8, 1934 when both the accused were present. It has evidently disappeared and the only reasonable inference seems to be that one or other of the accused has destroyed or secreted it. If either of them had merely lost it there is no reason why he should not say so. Each alleges that the document was with the other. The principal question is therefore whether the prosecution has succeeded in proving that it was the appellant and not the Talati who took charge of it. Now there is ample evidence that it was left in the charge of the Patel. The complainant's story on that point is supported by the witnesses Jivabhai, Mahmadbhai and Rambhai. Jivabhai says “Vithalbhai made over the endorsed document to the Patel accused No. 1. The Patel told us that the document would be returned on its being received back from the Matar Taluka Cutchery. The Talati told us that an extract showing the death and the date of death of Bai Lakhi should be sent to him. We returned home. The document had remained with the first accused Patel. I had seen it in the hand of the first accused when we started back.” Mahmadbhai's evidence is similar. He says “Vithalbhai made over the document to the Patel accused No. 1. The Patel passed on the document to the Talati accused No. 2 for recording the statements of Vithalbhai, Rambhai and Jivabhai. The statements were recorded by the Talati. The Talati then asked whether an extract from the Death Register had been obtained. Vithalbhai said that he had not obtained it. Hence the Talati said that the entry could not be made as the extract was not produced. The Patel then took over the document from the Talati and said to the Talati that he should ask for the document from him (the Patel) after Vithalbhai got the extract and produced it”. Rambhai also says “At the chora we saw the Patel and the Talati accused Nos. 1 and 2. Vithalbhai gave over the document to the Patel.”

The complainant's evidence that or several different occasions when he went and asked for the document from accused No. 1 in the absence of accused No. 2 the former told him that the papers had not been received from the Mamlatdar appears to indicate that the Patel at that time at any rate did not disclaim responsibility for the custody of the deed. According to the complainant during this period which lasted several months he never said that the document was with the Talati. He said that for the first time a few days before the complainant felt constrained to make his complaint to the Mamlatdar. I do not think that any good ground has been shown for doubting the good faith of these witnesses. Nor has any motive been suggested for their selecting the Patel as the person who actually had possession of the document. What the witnesses have stated in their depositions at the trial is corroborated by their previous statements in the Mamlatdar's inquiry. It does not appear that there has ever been any change on this particular point.

It has been argued that it was the Talati's duty and not the Patel's duty to hold the inquiry about a mutation in the Register and that he was the proper person to keep the mortgage-deed in his custody. It is pointed out that he did admittedly keep with him all the rest of the papers. The Circle Inspector who was examined as a witness says that it is the Talati's duty to make entries in the Mutation Register and to prepare the proceedings. The Patel's duty is only to identify the parties in such matters. It is to be noted however, that the Talati was only a candidate recently appointed to officiate, whereas the appellant is a hereditary Matadar Patel who had been performing the duties of the office for several years. It cannot be said I think that there is anything inherently improbable in the story told by the prosecution witnesses as to the part played by him.

Then it is said that the accused had no motive. The story that he asked for a bribe has been disbelieved by the Additional Sessions Judge because it was not mentioned in the complaint to the Mamlatdar or in the criminal complaint to the Magistrate, though it was mentioned in the verification. The other motive that has been suggested is that the Patel desired to help the relations of Bai Lakhi in the dispute about the land. It is argued that there is no satisfactory proof of any such desire on the part of the appellant or of any conspiracy between him and the brothers-in-law of Bai Lakhi. Why, it is asked, should he keep this one document when the fact of the satisfaction of the mortgage could be proved by the other papers remaining with the Talati? But obviously the mortgage deed was the most important document, the absence of which would be a serious hindrance to Vithalbhai in the dispute about the field. It seems that in the hot weather of 1935 Kalyanbhai and Hathibhai, the brothers-in-law of Bai Lakhi, had made an attempt to dispossess the tenant Hira Daji who was in occupation on behalf of Vithalbhai. In June 1935 Hira Daji brought a suit against them for an injunction and obtained a decree. Kalyanbhai and Hathibhai then instituted a suit against Vithalbhai and Hira Daji for possession of the land. That suit was still pending at the time of the criminal trial. The production of the mortgage-deed endorsed as satisfied would presumably have been a complete answer to it. It is also possible of course that the Patel may have hoped to get the Talati to suppress the other documents as well. Hira Daji has been examined as a witness in the case. He deposes that in the hot weather of 1935 Kalyanbhai, who is the brother-in-law of Bai Lakhi, had thrown manure on the field which he was cultivating and 10 or 12 days after that the Patel accused No. 1 sent for him (the witness) and said “why do you cultivate the land when there is a dispute between Vithalbhai and Kalyanbhai?” The witness says that he promised the Patel not to cultivate the land, but afterwards he changed his mind and filed a suit. If Hira Daji's evidence is true—and there seems to be no very good reason for disbelieving it—it shows that the appellant was interesting himself in the dispute about the field.

The complainant says that when he asked the Patel to accept the assessment of the field for the year 1934-1935 he said to him that as the assessment paid by him in the preceding year had been standing to his credit no money could be taken that year. This part of the case for the prosecution has been left rather obscure. The suggestion seems to be that the Patel had accepted assessment from somebody else, presumably Kalyanbhai, and had placed the money paid by Vithalbhai in suspense account. But that could have been proved presumably by production of the revenue records. The learned Judge says that Vithalbhai's statement about this was not challenged in his cross-examination and that the accused did not attempt to repudiate it in his own counterstatement. He thinks “This conduct of the Patel indicates a scheming on his part since February 1934 to keep Vithalbhai in ignorance and to prepare the ground for Kalyanbhai's success in ousting him.” But Vithalbhai's statement in examination-in-chief standing by itself can hardly be said to prove anything. Speaking for myself, I see no reason why he should have been cross-examined on it, and I think if the prosecution intended to rely on this piece of conduct the accused should have been asked specifically for his explanation of it. But though the failure to follow up this point may be said to weaken the prosecution case to some extent so far as motive is concerned, it is quite impossible to say that the appellant could have had no motive for destroying or secreting the document. We have been taken through the whole of the evidence and as far as I can see there is no sufficient reason for differing from the unanimous opinion of the Judge and the assessors that the evidence of the complainant and his witnesses is true, that it was the appellant who secreted or destroyed the document and that he did so dishonestly.

So the appeal fails and must be dismissed.

N.J Wadia, J.:—I agree.

Appeal dismissed.

J.G.R