M. K. Gopalan & ANR Vs. The State of
Madhya Pradesh  INSC 38 (5 April 1954)
DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 362 1954 SCR 168
CITATOR INFO :
RF 1957 SC 397 (24) F 1963 SC 728 (4) R 1974
SC 532 (11)
Constitution of India-Article 14-Criminal
Procedure Code (Act V of 1898), sections 14 and 197(1) and (2) -Section 14
whether ultra vires article 14 of the Constitution-Scope of power under section
197(2) and section 14- Whether the word "Court" in section 197 (2)
means the same thing as word " person-in section 14.
The petitioner, an officer of the Madras
Government, was employed in Central Provinces and Berar for the purchase of
grains on behalf of the Madras Government. He along with many others, was under
prosecution before a Special Magistrate, Nagpur (Mad by a Pradesh), on charges
for offences under section 420 of the Indian Penal Code etc. for causing loss
to the Madras Government. The Special Magistrate trying the case was appointed
by the Madhya Pradesh Government under section 14 of the Code of Criminal
Procedure and as the petitioner was a servant of the Government of Madras, the
prosecution against him was initiated with the sanction given by the Government
of Madras under section 197 of the Code of Criminal Procedure.
Held, (i) that section 14 of the Criminal
Procedure Code in so far as it authorises the Provincial Government to confer
upon any person all or any of the powers conferred or conferrable by or under
the Code on Magistrates of the first, second or third class in 169 respect of
particular oases and thereby to constitute a Special Magistrate for the trial
of an individual case, does not violate the guarantee under article 14 of the
Constitution as the Special Magistrate in the present case had to try the case
entirely under the normal procedure and no discrimination of the-kind
contemplated by the decision in Anwar Ali Sarkar's Case ( S.C.R. 284)
arose in the present case. A law vesting discretion in an authority under such
circumstances cannot be discriminatory and is, therefore, not hit by article 14
of the Constitution.
(ii) It is not for the very Government which
accords sanction under section 197(1) to specify also the Court before which
the trial is to be held under section 197(2) and therefore in a case to which
section 197(1) applies, the exercise of any power under section 14 is not
excluded. The word "Court" in sub-section (2) of section 197 is not
the same thing as a "person" in sub-section (1) of section 14.
The practice of direct approach to the
Supreme Court under article 32 (except for good reasons) in matters which have
been taken to the High Court and found against, without obtaining leave to
appeal therefrom, is not be encouraged.
Gokulchand Dwarkadas Morarka v. The King
(A.I.R. 1948 P. C. 82) referred to; and Anwar Ali Sarkar's case ( S.C.R. 284)
ORIGINAL JURISDICTION: Petition No. 55 of
Under article 32 of the Constitution for the
enforcement of fundamental rights.
N. C. Chatterjee, (J. B. Dadachanji and
Rajinder Narain, with him) for the petitioners.
K. V. Tambe and I. N. Shroff for the
1954. April 5. The Judgment of the Court was
delivered by JAGANNADHADAS J.-This is a petition under article 32 of the
Constitution and is presented to this Court under the following circumstances.
Petitioner No. I before us was an Agricultural Demonstrator of the Government
of Madras and was employed as an Assistant Marketing Officer in Central
Provinces and Berar for the purchase and movement of blackgram and other grains
on behalf of the Madras Government. He, as well as the second petitioner and 44
others, are under prosecution before Shri K. E. Pandey, a Special Magistrate of
Nagpur, Madhya Pradesh, in Case No. I of 1949 pending before him on charges of
cheating, attempt to commit cheating, criminal breach of trust 22 170 and
criminal conspiracy, (i.e., for offences punishable under section 420 read with
section 120-B or 109 of the Indian Penal Code, section 409 and section 409 read
with section 120-B of the Indian Penal Code) and the allegation is that by
reason of the acts committed by the accused, the Government of Madras had to
incur an expenditure of Rs. 3,57,147-10-0 in excess of the amount due. The
Special Magistrate before whom the case is now pending was appointed by the
Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and
as the first petitioner was a servant of the Government of Madras, the
prosecution against him has been initiated by sanction given by the Government
of Madras under section 197(1) of the Criminal Procedure Code.
The validity of the prosecution is challenged
on various grounds, and the present petition is for quashing the proceedings on
the ground of their invalidity. The three main points taken before us are: (1)
Section 14 of the Criminal Procedure Code, in so far as it authorises the
Provincial Government to confer upon any person all or any of the powers
conferred or conferrable by or under the Code on a Magistrate of the first,
second or third class in respect of particular cases and thereby to constitute
a Special Magistrate for the trial of an individual case, violates the
guarantee under article 14 of the Constitution;
(2) The sanction given under section 197(1)
of the Criminal Procedure Code for the prosecution as against the first
petitioner is invalid, inasmuch as the order of the Madras Government granting
the sanction does not disclose that all the facts constituting the offences to
be charged were placed before the sanctioning authority ; nor does the sanction
state the time or place of the occurrence or the transactions involved in it,
or the persons with whom the offences were committed. This contention is raised
relying on the Privy Council case in Gokulchand Dwarkadas Morarka v. The
King(1); (3) Even if the sanction under section 197 (1) of the Criminal
Procedure Code is valid, it is for the very Government which accords the
sanction to specify also the Court before (1) A.I.R. 1948 P.C. 82.
171 which the trial is to be held under
section 197(2) and in the absence -of any such specification by the said
Government, the power under section 14 of the Criminal Procedure Code of
appointing a Special Magistrate for the trial of the case cannot be exercised
by the Madhya Pradesh Government.
These points may now be dealt with seriatim.
In support of the objection raised under article 14 of the Constitution,
reliance is placed on the decision of this Court in Anwar Ali Sarkar's case
(1). That decision, however, applies only to a case where on the allotment of
an. individual case to a special Court authorised to conduct the trial by a
procedure substantially different from the normal procedure, discrimination
arises as between persons who have committed similar offences, by one or more
out of them being subjected to a procedure, which is materially different from
the normal procedure and prejudicing them thereby. In the pre- sent case, the
Special Magistrate under section 14 of the Criminal Procedure Code has to try
the case entirely under the normal procedure, and no discrimination of the kind
contemplated by the decision in Anwar Ali Sarkar's case (1) and the other cases
following it arises here. A law vesting discretion in an authority under such
circumstances cannot be said to be discriminatory as such, and is therefore not
hit by article 14 of the Constitution. There is, therefore, no substance in
As regards the second ground which is put
forward on the authority of the Privy Council case of Gokulchand Dwarkadas
Morarka v. The King(2), it is admitted that the trial has not yet commenced.
The Privy Council itself in the case mentioned above has recognised that the
lacunas, if any, in the sanction of the kind contemplated by that decision can
be remedied in the course of the trial by the specific evidence in that behalf.
Learned counsel for the State, without conceding the objection raised, has
mentioned to us that evidence in that behalf will be given at the trial. It is,
therefore, unnecessary to decide the point whether or not the sanction, as it
is, and without such evidence is invalid.
(1)  S.C.R. 284.
(2) A.I.R. 1948 P.C. 82.
172 It is the third point that has been
somewhat seriously pressed before us. The contention of learned counsel for the
petitioners is based on sub-section (2) of section 197 of the Criminal
Procedure Code, which runs as follows :- " The Governor-General or
Governor, as the case may be, exercising his individual judgment may determine
the person by whom, the manner in which, the offence or offences for which, the
prosecution of such Judge, Magistrate, or public servant is to be conducted,
and may specify the Court before which the trial is to be held." The
argument is that it is for the very Government which sanctioned the prosecution
under section 197(1) to specify the Court before which the trial is to be held
and no other, and that consequently, in a case to which section 197(1) applies,
the exercise of any power under section 14 is excluded. It is said that though
the exercise of the power under section 197(2) in so far as it relates to
specification of the Court is concerned is discretionary and optional, but if
in an individual case, that power is not exercised, it must be taken that the
appropriate Government did not feel called upon to allot the case 'to any
special Court, and that, therefore, such allotment by another Government under
section 14 would affect or nullify the power of the appropriate Government
under section 197(2).
It is also suggested that such dual exercise
of the power by two Governments would be contrary to the policy underlying
section 197 which is for the protection of the public ser- vant concerned, by
interposing the sanction of the Government between, the accuser and its
servants of the categories specified therein. This argument is farfetched.
In the first instance, there is no reason to
think that section 197(2) is inspired by any policy of protection of the concerned
public servant, as section 197(1) is. There can be no question of protection
involved by an accused being tried by one Court rather than by another at the
choice of the Government. The power under section 197(2) appears to be vested
in the appropriate Government for being exercised, on grounds of convenience,
or the complexity or gravity of the case or other relevant considerations. The
argument as to 173 the implication of non-exercise of the power by the
appropriate Government under section 197(2) is also untenable. The power to
specify a Court for trial in such cases is a permissive power, and there can be
no such implication, as is contended for, arising from the non- exercise of the
This entire argument, however, is based on a
misconception of the respective scopes of the powers under, section 197(2) and
section 14. The one relates to the "Court" and the other to the
"Person". Under sub-section (2) of section 197, the sanctioning
Government may specify a. Court for the trial of the' case but is not bound to
do so. When it does not choose to specify the Court, the trial is subject to
the operation of the other provisions of the Code. But even when it chooses to
exercise the power of specifying the Court before which the trial is to be
held, such specification of the Court does not touch the question as to who is
the person to function in such Court before which the trial is to take place.
That is a matter still left to be exercised by the Provincial Government of the
area where the trial is to take place. 'The argument of learned counsel
proceeds on treating the word "Court" in sub-section (2) of section
197 as being the same as a "person" in sub-section (1) of section 14,
for which there is no warrant. There is accordingly no substance in this contention.
In addition to the above three points,
learned counsel for the petitioners has also raised a further point that in the
present case Shri K. L. Pandey who was first appointed as a Special Magistrate
for the trial of the case, and to whose file on such appointment this case was
transferred, was later on appointed as acting Sessions Judge for some time and
ceased to have this case before him. He reverted back from his position as
acting Sessions Judge to his original post. The point taken is that without a
fresh notification appointing him as Special Magistrate and transferring the
case to him as such, he cannot be said to be seized of this case as Special
Magistrate. Here again, learned counsel for the State informs us, without
conceding the point so taken, that he is prepared to advise the Government 174
to issue the necessary notification and have the case transferred. In view of
that statement, it is unnecessary to pronounce on the objection so raised.
In the result, all the points raised on behalf
of the petitioners fail, and this petition must be dismissed.
It is desirable to observe that the questions
above dealt with appear to have been raised before the High Court at previous
stages by means of applications under article 226 and decided against. No
appeals to this Court have been taken against the orders therein. Nothing that
we have said is intended to be a pronouncement as to the correctness or
otherwise of those orders, nor to encourage the practice of direct approach to
this Court (except for good reasons) in matters which have been taken to the
High Court and found against, without obtaining leave to appeal there from.