Rameshwar Bhartia Vs. The State of
Assam  INSC 46 (23 October 1952)
AIYAR, N. CHANDRASEKHARA BHAGWATI, NATWARLAL
CITATION: 1952 AIR 405
CITATOR INFO :
F 1976 SC 680 (3)
Criminal Procedure Code (V of 1898), s.
556-" Personally interested", meaning of-Officer giving sanction to
prosecute, whether disqualified from trying the case--Difference between
sanction to prosecute and direction to prosecute.
The question whether a Magistrate is
"personally interested" in a ease within the meaning of s. 556,
Criminal Procedure Code, has essentially to be decided the facts of each case.
Where an officer as a District Magistrate
exercising his powers under s. 7(1) of the Essential Supplies (Temporary Powers)
Act, 1946, sanctioned the prosecution of a person for violation of ss. 3 and 7
of the Assam Food Grains Control Order, 1947, and the same officer as
Additional District Magistrate tried and convicted the accused, and it was
contended that as the officer had given sanction for prosecution he was
"personally interested" in the case within the meaning of s. 656,
Criminal Procedure Code, and the trial and conviction were therefore illegal:
Held, that by merely giving sanction for prosecution he did not become
personally interested" in the case and the trial and conviction were not
In both cases of sanction -and direction to
prosecute, an application of the mind is necessary, but there is this essential
difference that in the one case there is a legal impediment to the prosecution
if there is no sanction and in the other case there is a positive order that
the prosecution should be launched. For a sanction, all that is necessary for
one to be satisfied about is the existence of a prima facie case. In the case
of a direction, a further element that the accused deserves to be prosecuted is
involved. Whether sanction should be granted or not may conceivably depend
considerations extraneous to the merits of the case. But where a prosecution is
directed, it means that the authority who gives the sanction is satisfied in
his own mind that the case must be initiated. Sanction is in the nature of a
permission, while direction is in the nature of a command.
Gokulchand Dwarka Das v. The King (1948) 52
C.W.N. 325, Government of Bengal v. Heera Lall Dass and Others (1872) 17 W. R.
Cr. 39, Queen Empress v. Chenchi Reddi (1901) I.L.R.
24 Mad. 238, Girish Chunder v. Queen Empress
20 Cal. 857, and Emperor v. Ravji (1903) 5
Bom. L.R. 542, referred to.
CRIMINAL APPELLATE, JURISDICTION: Criminal
Appeal No. 40 of 1951, 127 Appeal from the Judgment and Order dated the 1st
June, 1951, of the High Court of Judicature in Assam (Thadani C.J. and Ram
Labhaya J.,) in Criminal Reference No. I of 1951, arising out of Judgment and
Order dated the 15th November, 1950, of the Court of the Additional District
Magistrate, Lakhimpur, in Case No. 1126C of 1950.
Jindra Lal for the appellant.
Nuruddin Ahmed for the respondent.
1952. October 23. The Judgment of the Court
was delivered by CHANDRASEKHARA AIYAR J.-Rameshwar Bhartia, the appellant, is a
shopkeeper in Assam. He was prosecuted for storing paddy without a licence in
excess of the quantity permitted by the Assam Food Grains Control Order, 1947.
He admitted storage and possession of 550 maunds of paddy, but pleaded that he
did not know that any licence was necessary. The 'Additional District
Magistrate recorded a plea of guilty, but imposed him a fine of Rs. 50 only, as
he -considered his ignorance of the provisions of the Food Grains Control Order
to be genuine. The stock of paddy was left in the possession of the appellant
by the Procurement Inspector under a Jimmanama or security bond executed in his
He was subsequently unable to produce it
before the court, as the whole of it was taken away by a Congress M.L.A. for
affording relief to those who suffered in the earthquake, and so, the appellant
was ordered to procure a similar quantity of paddy after taking an appropriate
licence, and to make over the same to the procurement department payment of the
The District Magistrate, being moved to do so
by the procurement department, referred the case to the High Court under
section 438, Criminal Procedure Code, for enhancement of the sentence, as in
his opinion the sentence was unduly lenient and the Jimmanama, which was
admittedly broken, should have been forfeited.
128 The reference was accepted by the High
Court, and the sentence was enhanced to rigorous' imprisonment for six months
and a fine of Rs. 1,000. As regards the Jimmanama, the case was sent back to
the trial court for taking action according to law under section 514, Criminal
Procedure Code, for its forfeiture.
The appellant applied to the High. Court for
a certificate under article 134 (1) (c) of the Constitution that the case was a
fit one for appeal to this Court. This application was granted. Out of the
three points urged for the appellant, two were rejected, but the third one was
accepted as a good ground, namely, that there was a contravention of the
provisions of section 556, Criminal Procedure Code and that consequently the,
trial before the Additional District Magistrate was void.
One of the contentions urged before us was
that Shri C.K. Bhuyan was not a "Director" at all and therefore there
was no valid sanction under section 38 of the Order. A notifications dated 16th
May) 1950, and published in the Assam Gazette of the 24th May, 1950, was
produced before us to show that Sri C.K. Bhuyan was an Additional Deputy
Commissioner and it was conceded by the appellant's counsel before the High
Court that if he was a Deputy Commissioner, he would be a Director under the
Order, as all Deputy Commissioners in Assam were notified as Directors for the
purposes of the Order. Mr. Jindra Lal sought to draw a distinction between a
Deputy Commissioner and an Additional Deputy Commissioner in this respect, but
there is no warrant for the same,, apart from the circumstance that it is a
question of fact which has to be investigated afresh, and which we cannot allow
to be raised now for the first time.
The primary question to consider in this
appeal is whether there has been any infringement of Section 556, Criminal
Procedure -Code, and a consequent want of jurisdiction in the court which tried
the offence. The facts relevant to this question lie 129 within a narrow
compass. The Procurement Inspector sent a report , Ist July,1950 about the
nature of the offence ; he wrote out a short note the, subject, and requested
that the accused might be prosecuted and the Assistant Director of Procurement,
Dibru garh, might be authorised to dispose of the paddy immediately to avoid
loss due to deterioration, Sri 0. K. Bhuyan,who was the then District
Magistrate Lakhimpur, made the following order:- "Prosecution sanctioned under
section 7 (1) of ,the Essential Supplies (Temporary Powers) Act, 1946, for
violation of sections 3 and 7 of the Assam Food Grains Oontrol Order,
1947." The case happened to be tried by the same gentleman in his capacity
as Addtional District Magistrate, and the- accused was convicted as aforesaid.
The argument for the appellant was that
having sanctioned the prosecution, Sri C.K. Bhuyan became "personally
interested" in the case within the meaning of section 556, and was
therefore incompetent to try the same. It was contended that the trial was not
only irregular but illegal.
There is no question that "personal
interest" within the meaning of the section is not limited to private
interest, and that it may well include official interest also. But what is the
extent of the interest which will attract the disability is a subject which
different views are possible and have been taken. Section 556 itself indicates
the difficulty. The Explanation to the section runs in these terms:- "A
Judge or Magistrate shall not be deemed a party, or personally interested,
within the , meaning of this section, to or in any case by reason only that be
is a Municipal Commissioner or otherwise concerned therein in a public
capacity, or by reason only that he has viewed the place in which an offence,
is alleged to have been committed, or any other place .in which any other
transaction material to the case 'is alleged to have occurred, and made an
inquiry III connection with the case." 130 This shows that to be connected
with a case in a public capacity is not by itself enough to render the person
incompetent to try it. Even if he had made an enquiry in connection with this
case, it would not matter. But look at the illustration:
"A, as collector, upon consideration of
information furnished to him, directs the prosecution of B for a breach of the
excise laws. A is disqualified from trying this case as a Magistrate." It
is evident from the words of the illustration that if a prosecution is directed
by a person in one capacity, he shall not try the case acting in another
capacity as a Magistrate.
The explanation and illustration lend some
support to the view that there is a distinction between a passive interest and
an active interest, and that it is only in the latter case that the
disqualification arises or intervenes.
Under sub-section (3) (a) of section 2 of the
Assam Food Grains Control Order "Director" means "the Director
of Supply, Assam, and includes, for the purpose of any specific. provision of
this Order, any other officer duly authorised in that behalf by him or by the
Provincial Government by notification in the Official Gazette." Section 38
No prosecution in respect of an alleged
contravention of any provision of this Order shall be instituted without the sanction
of the Director." A little confusion is likely to arise from the
employment of the word " Director" in the Control Order and the word
"directs" in the illustration to section 556 of the Code'.
It has to be borne in mind that a sanction by
the Director within the meaning of the Code does not necessarily mean "a
direction given by him that the accused should be prosecuted." In both
cases of sanction and direction, an application of the mind is necessary, but
there is this essential difference that in the one case there is a legal
impediment to the prosecution if there be no sanction, and in the other case,
there is a positive order that 131 the prosecution should be launched. For a
sanction, all that is necessary for one to be satisfied about is the existence
of a prima facie case. In the case of a, direction, a further element that the
accused deserves to be prosecuted is involved. The question whether a
Magistrate is personally interested or not has essentially to be decided the
facts in each case. Pecuniary interest, however small, will be a
disqualification but as regards other kinds of interest, there is no measure or
standard except that it should be a substantial one, giving rise to a real
bias,-or a reasonable apprehension the part of the accused of such bias., The
maxim " Nemo debet esse judex in propria sua causa" applies only when
the interest attributed is such as to render the case his own cause. The
fulfllment of a technical requirement imposed by a statute may not, in many
cases, amount to a mental satisfaction of the truth of the facts placed before
the officer. Whether sanction should be granted or not may conceivably depend
upon consideration extraneous to the merits of the case. But where a
prosecution is directed, it means that the authority who gives the direction is
satisfied in his own mind that the case must be initiated. Sanction is in the
nature of a permission while a direction is in the nature of a command.
Let us now examine some of the decisions the
subject. For the appellant, strong reliance was placed the judgment of the
Privy Council in Gokulchand Dwarkadas v. King(1), and it was argued the basis
of some of the observations of the Judicial Committee that a sanction was an
important and substantial matter and not a mere formality. The facts in that
case were that while there was a sanction of the Government for a prosecution
under the Cotton Cloth and Yarn Control, Order, there was nothing in the
sanction itself, or in the shape of extraneous evidence, to show that the sanction
was accorded after the relevant facts were placed before the sanctioning
authority. To quote their Lordships' own words;
(1) (1948) 52 C.W.N.325.
132 "There is no evidence to show that
the report of the Sub- Inspector to the District Superintendent of Police,
which was not put in evidence, was forwarded to the District Magistrate, nor is
there any evidence is to the contents of the endorsement of the District
Magistrate, referred to in the sanction, which endorsement also was not put in
evidence. The prosecution was in a position either to produce or to account for
the absence of the' report made to the District Superintendent of Police and
the endorsement of the District Magistrate referred to in the sanction, and to
call any necessary oral evidence to supplement the documents and show what were
the facts which the sanction was given." It is in this connection that
their Lordships emphasise that the sanction to prosecute is an important step
constituting a condition precedent, and observe:
"Looked at as a matter of substance it
is plain that the Government cannot adequately discharge the obligation of
deciding whether to give or withhold a sanction without a knowledge of the
facts of the case. Nor, in their Lordships' view, is a sanction given without reference
to the facts constituting the offence a compliance with the actual terms of
clause 23." This, however, is no authority for the position that a
sanction stands the same footing as a direction. It is true that the facts
should be known to the sanctioning authority ; but it is not at all necessary
that the authority should embark also an investigation of the facts, deep or
perfunctory, before according the sanction.
The decision lends no support to the view
that wherever there is a sanction, the sanctioning authority is disabled under
section 556 of the Code from trying the case initiated as a result of the
sanction. the other hand, there is plenty of support for the opposite) view.
In the very early case of The Government of
Bengal v. Heera Lall Dass and Others(1), at a time when there (1) (1872) 17
Weekly Reporter, Criminal Rulings, 39.
133 was no such statutory provision as
section 556 of the Code but, only the general rule of law that a man could not
be judge in a case in which he had an interest, the facts were that a
Sub-Registrar, who was also an Assistant Magistrate, having come to know in his
official capacity as a registering officer that an offence under the
Registration Act had been committed, sanctioned a prosecution, and subsequently
tried the case himself. A Full Bench consisting of Sir Richard Couch C.' J. and
five other learned Judges came to the conclusion, after an examination of some
of the English cases, that the trial was not vitiated. The learned Chief
Justice said:- "In this case, I think, the Sub-Registrar has not such an
interest in the matter as disqualifies him from trying the case; and I may
observe with reference to some -of the arguments that have been used as to the
Sub-Registrar having made up his mind, and that the accused would have no
chance of a fair trial, that the sanction of the superior officer, the
Registrar, is required before the prosecution can be instituted, and certainly
I do not consider that the prosecution will not be instituted unless the
Sub-Registrar has made up his mind as to the guilt of the party. It is his
duty, when he comes to know that an offence has been committed, to cause a
prosecution to be instituted, by which I understand that there is prima facie
evidence of an offence having been committed, that there is that which renders
it proper that there should be ail enquiry, and the Registrar accordingly gives
his sanction to it ; and certainly, I cannot suppose that, because an officer
in his position sanctions the institution of a prosecution, his mind is made up
as to the guilt of the party and . that he is not willing to consider the
evidence which may be produced before him when he comes to try the case. In
this case, there appears to 'be no such interest as would prevent the case from
going" before the Magistrate as the trying authority ......
134 In Queen-Empress v. Chenchi Reddi(1) it
was pointed out that when there was only an authorisation and not a direction,
there was no supervening disability ; and the case of Girish Chunder Ghose v.
The QueenEmpress(2) was distinguished, the ground that there the Magistrate had
taken a very active part in connection with the case as an executive officer.
The Bombay High Court went even a step
further in the case reported in Emperor v. Bavji(3), where the Magistrate who
tried the case had earlier held a departmental enquiry and forwarded the papers
to the Collector with his opinion that there was sufficient evidence to justify
a criminal prosecution. As he did no more than express an opinion that there was
evidence, which he, had neither taken nor sifted, which made a criminal
prosecution desirable, it was held that the Magistrate was not disqualified
from holding the trial, though, no doubt it would have been more expedient had
the Collector sent the case for disposal to another of his subordinates.
As stated already, the question whether the
bar under section 556 comes into play depends upon the facts and circumstances
of each particular case, the dividing line being a thin one somewhat but still
sufficiently definite and tangible, namely, the removal of a legal impediment
by the grant 'of sanction and the initiation of criminal proceedings as the
result of a direction. In the present case before us, we have nothing more than
a sanction, and consequently we are unable to hold that the trial has become
vitiated by reason of the provisions of section 556, Criminal Procedure Code.
The other point taken behalf of the appellant
is a more substantial one. The security bond was taken from him not by the
court but by the Procurement Inspector. It is true that it contained the
undertaking that, the seized paddy would be produced before the court, but
still it was a promise made to the particular official and not to the court.
The High (1) (1901) I.L.R. 24 Mad. 238. (3) (19O3) 5 Bom. L.R. 542.
(2) (1893) I.L.R. 20 Cal. 857.
135 Court was in error in thinking that
section 514, Criminal Procedure Code, applied. Action could be taken only when
the bond is taken by the court under the provisions of the Code such as section
91 for appearance, the several security sections or those relating to bail.
Clause (1) of section 514 runs:
"Whenever it is proved to the
satisfaction of the, Court by which a bond under this Code has been taken, or
of the Court of a Presidency Magistrate or Magistrate of the first class, or
when the bond is for appearance before a Court, to the satisfaction of such
-Court, that such bond has been forfeited, the Court shall record the grounds
of such proof, and may call upon any person bound by such bond to pay the
penalty thereof, or to show cause why it should not be paid." The language
is perfectly clear; the power to forfeit and the imposition of the penalty
provided for in the later parts of the section arise only if the preliminary
conditions are satisfied.
There was no argument addressed to us that
the High Court in suggesting that action should be taken under section 514 for
forfeiture of the bond acted in the exercise of its inherent powers under
section 561-A. It did not purport to exercise any such power; and, moreover,
there will then arise the question whether when the Code contains an express
provision a particular subject, there could be any resort to inherent
jurisdiction, under a general provision.
We have got an additional circumstance in the
appellant's favour in this case that the seized paddy was taken away by a
member of the Legislative Assembly for giving relief to those affected by the
earthquake, and if that is true, as it seems to be from the letter written by
the' M.L.A. to the Additional District Magistrate the 1st November, 1950, it
appears to us harsh, if not unjust, to ask him to produce the same paddy or a
similar quantity of paddy. The order-of the High Court sending back the case to
the 136 Magistrate for taking action according to law under section 514 will,
therefore, stand set aside.
We generally do not interfere in the matter
of sentence, but in this case we find that the Magistrate has held that the
appellant's plea that he was ignorant of the provisions of the Assam Food
Grains Control Order, 1947, was a genuine one. Having regard to this
circumstance and the fact that from a fine of Rs. 50 to 6 months' rigorous
imprisonment and a fine of Rs. 1,000 is a big jump, we think it is appropriate
that the sentence of imprisonment imposed by the High Court should be set aside
and we order accordingly.
The fine of Rs. 1,000 will stand.
Sentence reduced. Agent for the appellant:
Agent for the respondent: Naunit Lal.