K. Satwant Singh Vs. The State of
Punjab  INSC 127 (28 October 1959)
SYED JAFFER SINHA, BHUVNESHWAR P.(CJ) KAPUR,
GUPTA, K.C. DAS
CITATION: 1960 AIR 266 1960 SCR (2) 89
CITATOR INFO :
R 1966 SC 220 (10,11,19) R 1967 SC 752 (19)
RF 1967 SC 776 (6) F 1983 SC 610 (5,6,8) F 1986 SC 293 (11,12) RF 1991 SC1260
Criminal Trial-Joinder of charges and Persons
in a single trial -Person charged with three offences of cheating tried jointly
with abettor-Legality-Place of trial--Sanction to Prosecute Public servant,
requirement of-Minimum fine Prescribed by subsequent Ordinance, if violates
constitutional Protection-Code of Criminal Procedure (Act V of 1898), ss. 179,
180, 197, 234, 239(b)-Indian Penal Code (Act XLV of 1860), s. 420--Criminal Law
Amendment Ordinance, 1943 (XXIX of 1943), as amended by the Criminal Law (1943
Amendment) Amending Ordinance, 1945 (XII of 1945), s- 10 -Constitution of
India, Art. 20(1).
The appellant, who had been a contractor in
Burma, in response to an advertisement issued in August, 1942, by the evacuee
Government of Burma, then functioning at Simla, inviting claims from
contractors for works of construction and repairs executed by them, submitted
claims aggregating to several lacs of rupees. The Government of Burma sent
these claims for verification to Major Henderson at Jhansi in March and May,
1943, as he was the officer who had knowledge of these matters. He certified
many of these claims to be correct and on his certification the Government of
Burma sanctioned the claims and directed the Controller of Military claims at
Kolhapur to pay the amounts. On the request of the appellant cheques drawn on
the Imperial Bank of India at Lahore were posted to him from Kolhapur and they
were encashed at Lahore. The largeness of such claims aroused the suspicions of
the Government and it was discovered that the claims made by the appellant were
He was tried in several trials under S. 420
of the Indian Penal Code along with Henderson, charged under S. 420/109 of the
Code for abetment of those offences, before a special Tribunal at Lahore,
functioning 90 under Ordinance No. XXIX of 1943, as amended by ordinance No.
XII of 1945. After the partition of India, the trials by the Special Tribunal
took place at Simla. The appellant was convicted at these trials and sentenced
to imprisonment ranging from Punjab one year to three years, and payment of
fines of various amounts. The Tribunal divided the fines into 'ordinary' and
'compulsory', the latter by virtue of s, 10 of the Ordinance, which prescribed
a minimum fine equal to the amount procured by the offence. In default of
payment of the 'ordinary' fines it directed the appellant to undergo further
imprisonment for certain periods, but there was no such direction with respect
to the 'compulsory' fines. The High Court, on appeal, affirmed the convictions
but varied the sentences by reducing the term of imprisonment and setting aside
the 'compulsory' fines. The appellant as also the State of Punjab appealed to
this Court. It was contended on behalf of the appellant that (1) the offences
having been committed at Kolhapur, then outside British India, the trial at
Simla, in the absence of any certificate or sanction given under S. 188 of the
Code of Criminal Procedure, was illegal ; (2) the joint trial of the appellant
and Henderson at Simla was also illegal : (3) SS.
234(1) and 239(b) of the Code could not be
combined to try a person charged with three offences of cheating with another
charged with abetment in respect thereof in a single trial and (4) sanction
under S. 197 of the Code was necessary for the prosecution of Henderson and the
absence of such sanction vitiated the joint trial. The contention of the State
in the appeals preferred by it was that the imposition of the 'compulsory'
fines by the Tribunal was perfectly valid in law and the High Court was in
error in setting aside the same.
Held, that before the provisions of S. 188 of
the Code of Criminal Procedure could apply to a case, it was necessary to
establish that the crime was committed outside British India In the instant
case the misrepresentation by the appellant, the false certification by
Henderson and the resulting payment having been made respectively at Simla,
Jhansi and Lahore, then in British India, no part of the offence could be said
to have taken place outside British India. The contention that the posting of
the cheques at Kolhapur was tantamount to delivery of them to the appellant at
Kolhapur, the Post Office being the agent of the appellant, was wholly
misconceived in the facts and circumstances of the case. Moreover, what might
be a relevant consideration as to the place of payment for the purpose of the
Income-tax Act would not necessarily be relevant for the purposes of a criminal
The Commissioner of -Income-tax, Bombay
South, Bombay v. Messrs. Ogle Glass Works Ltd., Ogale Wadi,  1 S.CR.
185, held inapplicale.
The Commissioner of Income-tax, Bihar &
Orissa v. Messrs.
Patney & Co.  36 I.T.R. 488,
91 The words " an offence " in S.
239(b) of the Code which is singular, must, by virtue of s. 13 of the General
Clauses Act, 1879, include the plural and therefore, a person accused of
several offences of the same kind can be tried in a single trial with another
accused of abetment thereof, The concluding words of S. 239 of the Code
obviously mean that, in framing charges against each of the several persons
mentioned in its different clauses, not only the provisions relating to the
form of charges but also those in respect of joinder of charges should
apply.Consequently, the joint trial of the appellant with the abettor on the
charges as framed did not vitiate the trial The provisions of ss. 179 and 180
of the Code are wide enough to enable either the court within whose territorial
jurisdiction anything was done, or the court where the consequences ensued, to
take cognisance of the matter.
Under S. 179 the appellant could be tried
either at Lahore or Simla and under s. 180 Henderson could be tried at either
of the two places. There was, therefore, no illegality in trying the appellant
and Henderson together at Simla.
Section 420 of the Indian Penal Code, read
with s. 63 of the Code, prescribes a fine that is unlimited. It was not,
therefore, correct to contend that s. 10 of the Ordinance, in prescribing the
minimum fine, imposed a penalty that was greater than what could be inflicted
under the former so as to contravene Art. 20(1) of the Constitution.
As s. 10 of the Ordinance prescribed a
minimum fine, no question as to its excessive character could arise and the
order of the High Court setting aside the compulsory fines must, therefore, be
set aside and the orders of the Special Tribunal restored.
Rao Shiv Bahadur Singh and Another v. The
State of Vindhya Pradesh,  S.C.R. 1189 and Kedar Nath Bajoria v. The
State of West Bengal,  S.C.R. 30, explained and distinguished.
Per Sinha, C.J., Imam, Wanchoo and Das Gupta,
JJ. Offences such as bribery and cheating or abetment thereof cannot by their
very nature be regarded as having been committed by public servants while
acting or purporting to act in the discharge of their official duties. Such
offences can have Do reasonable connection with the performance of their duties
as such ; no sanction, therefore, is necessary under s. 197 of the Code of
Criminal Procedure for their prosecution.
Amrik Singh v. The State of PEPSU,  1
S.C.R. 1302 and Matajog Dobey v. H. C. Bhari,  2 S.C.R. 925, referred to.
Per Kapur, J.-In order that the protection
afforded by S. 197 of the Code of Criminal Procedure might be available to
Henderson, it was not enough to show that he was a Major in the Army but it
must also be shown that he was an officer not removable from office except with
the sanction of the Central Government and that in certifying the appellant's
claims, which was the crux of the offence charged against him he was acting or
purporting to act in the discharge of his official duty.
92 The true test as to whether a public
servant was acting or purporting to act in discharge of his duties would be
whether the act complained of was directly connected with his official duties
or it was done in the discharge of his official duties or it was so integrally
connected with or attached to his office as to be inseparable from it.
Gill v. The King, 75 I.A. 41; Albert West
Meads v. The King, 75 I.A. 815, Phenindra Chandra Neogy v. The King, 76 I.A.
10, Hori Ram Singh v. The Crown, 
F.C.R. 159, Amrik Singh v. The State of PEPSU,  1 S.C.R. 1302, Ronald
Wood Mathams v. State of West Bengal,  1 S.C.R. 316 and Shree Kanthiah
Ramayya Munipalli v. The State of Bombay,  1. S.C.R. 1177, referred to.
As there was no evidence, in the instant
case, to show that Henderson was an officer as contemplated by S. 197 of the
Code and that in verifying the appellant's claims he was discharging his
official duty, s. 197 could not apply.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 100 to 105 and 124 to 129 of 1954.
Appeals from the judgment and order dated
August 2. 1954, of the Punjab High Court in Criminal Appeals Nos. 112 of 49,
333,382, 383 and 410 of 1950 and 241 of 1951, arising out of the judgment and
order dated June 26, 1950, of the Punjab Special Tribunal.
WITH Petition No. 31 of 1952.
Petition under Article 32 of the Constitution
of India for enforcement of Fundamental rights.
Harnam Singh, Hardyal Hardy and P. C.
Aggarwala, for the appellant in Cr. As. Nos. 100 to 105 of 1954, Petition No.
31 of 52 and Respondent in Cr. As. Nos. 124
to 129 of 1954.
C. K. Daphtary, Solicitor-General of India,
Kartar Singh Chawla, T. M. Sen and D. Gupta, for the appellant in Cr. As. Nos.
100 to 105 of 1954 and Petition No. 31 of 1952 and Appellant in Cr. As. Nos.
124 to 129 of 1954.
1959. October 28. The judgment of Sinha,
C.J., Imam, Wanchoo and Das Gupta, JJ., was delivered by Imam, J. Kapur, J.,
delivered a separate judgment.
Imam J. IMAM J.-These appeals are on a
certificate granted by the Punjab High Court and they have been heard 93
together as they rise out of a single judgment of the High Court. In Criminal
Appeals Nos. 100 to 105 of 1954 Satwant Singh is the appellant and in Criminal
Appeals Nos. 124 to 129 of 1954 the State of Punjab is the appellant.
Although in these appeals only questions of
law have been urged it is necessary to set out briefly some of the facts which
led to the prosecution and conviction of Satwant Singh. As a result of the
Japanese invasion of Burma in 1942 the Government of Burma and the Allied
forces stationed there were compelled to leave that country. In connection with
the evacuation from Burma and the defence of that country, the Government of
Burma and the army had to execute certain works such as the construction of
roads, repairs and construction of bridges, strengthening and repairing of old
tracks and converting railway lines into motor roads. Some of these works were
executed by the army and some were entrusted to contractors.
After evacuation of Burma its Government was
located at Simla. In August, 1942, the Government of Burma advertised inviting
claims from contractors who had executed works or had supplied materials in
Burma and had not yet been paid.
Satwant Singh had worked as a contractor in
Burma. He at first submitted a claim for a sum of a little over Rs.
18,000. Later on, he put in further claims
the total amount of which ran into several lakhs of rupees. These claims were
sent by the Government of Burma to Major Henderson at Jhansi in March and May,
1943, for verification as he was the officer who had knowledge of these
matters. This officer certified many of these claims to be correct and sent the
papers back to Simla. He did not pass one claim because it was within the
knowledge of another officer Mr. Nasa. On the certification of the claims by
Henderson, the Finance Department of the Government of Burma sanctioned the
same and the Controller of the Military Claims at Kolhapur was directed to pay
the amounts sanctioned. On the request of Satwant Singh cheques drawn on the
Imperial Bank of India at Lahore were posted to him from Kolhapur and these
cheques were 94 encashed at Lahore. In all Satwant Singh was paid Rs.
Subsequently, suspicions of the Government of
Burma were aroused concerning the many cliams made on it and it was discovered
that many of them, including some of those of Satwant Singh, were false. A
police investigation followed which revealed that a large number of claims made
by various persons including Satwant Singh in respect of works done for the
benefit of the army were false. Satwant Singh was arrested on the 12th of
April, 1944, at Ambala and was taken to Lahore. He had also submitted a claim
in the name of his wife Surjit who was also arrested. Henderson was arrested at
lmphal and brought to Lahore for interrogation.
According to the prosecution, Satwant Singh
had committed the offence of cheating punishable under s. 420, Indian Penal
Code and Henderson had abetted him in the commission of that offence by falsely
certifying Satwant Singh's claims to be true, knowing that they were false and
thereby had committed an offence punishable under s. 420/109, Indian Penal
Satwant Singh having expressed a desire to
make a confession, his confession was recorded by a First Class Magistrate on
the 9th of May, 1944.
There being many cases of acceptance of bribe
and criminal breach of trust by public servants and cheating of Government by
certain persons and cases similar to that of Satwant Singh, Ordinance No. XXIX
of 1943, hereinafter referred to as the Ordinance, for trial of such cases was
promulgated by the Governor General of India in 1943.
Subsequently, this Ordinance was amended by
Ordinance XII of 1945. By virtue of a notification issued under the Ordinance
as amended the case of Satwant Singh was allotted to the Third Special Tribunal
at Lahore for trial with Henderson as his co-accused. After the partition, the
trial by the Special Tribunal took place at Simla.
Henderson had absconded to England and
extradition proceedings had to be taken against him under the Fugitive
Offender's Act of 1881. He was brought 95 before the Special Tribunal in
December, 1949. In the meantime, Satwant Singh's case was separated and the
trial against him alone continued. On Henderson's return, the trial once again
became a joint trial. Henderson applied for examination of certain witnesses on
commission in England. His prayer was granted. Satwant Singh fearing that the
trial of the cases against him would be delayed, requested that his cases be
separated from the cases against Henderson. This prayer was allowed and his
trials proceeded against him as the sole accused except in the trial of Cases
Nos. 54, 55 and 56 in which Henderson was a coaccused with him.
The Special Tribunal imposed sentences of
imprisonment ranging from one year to three and a half years in the several
trials. In addition, it imposed fines of various amounts. It divided the fines
into "ordinary" and "compulsory", the latter by virtue of
s. 10 of the Ordinance. In default of payment of the " ordinary "
fines it directed the appellant to undergo further imprisonment for certain
periods. There was no such direction with respect to the " compulsory
" fines. The High Court reduced the sentence of imprisonment to two years
in all the trials where such sentence was in excess of that period. The
sentences of imprisonment in all the trials were to run concurrently. The High
Court maintained the sentence of " ordinary " fines imposed by the
Special Tribunal but set aside the sentence of " compulsory " fines.
The State had filed a petition before the
High Court for the enhancement of the sentences of fine passed against Satwant
Singh which was dismissed on the ground that the " compulsory " fines
imposed were invalid in view of the decisions of this Court in the case of Rao
Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh (1) and the case
of Kedar Nath Bajoria v. The State of West Bengal (2). In the opinion of the
High Court, enhancement of sentences of fine would be a method by which the
provisions of Art. 20 of the Constitution would be circumvented.
(1)  S.C.R. 1189 (2)  SC. R. 30
96 Satwant Singh has appealed against his conviction and sentence as ordered by
the High Court. The State of Punjab has also appealed against the decision of
the High Court that the "compulsory " fines imposed were illegal. The
State also has made a prayer that the " ordinary " fines imposed upon
Satwant Singh may be enhanced.
On behalf of the appellant his conviction was
challenged on several points of law. Firstly, it was urged that the provisions
of s. 188 of the Code of Criminal Procedure had not been complied with. The
charge framed against the appellant stated that he had committed the offence of
cheating at Simla and Kolhapur. Kolhapur was a place outside British India at
the relevant time. In the present case there was neither a certificate of the
Political Agent nor a sanction of the Provincial Government as required under
s. 188 of the Code of Criminal Procedure. The facts established that the
offence of cheating was committed at Kolhapur and therefore it could not be
inquired into in British India without such a certificate or such sanction.
The trial of the appellant therefore was
without jurisdiction. Secondly, it was urged that the appellant committed the
offence at Kolhapur and Henderson at Jhansi.
They could not be tried together in a single
trial by the Special Tribunal at Simla as neither s. 179 nor s. 180 of the Code
of Criminal Procedure applied to the facts of the case and in view of the
provisions of s. 188 of the Code.
Thirdly, it was submitted that ss. 233 to 239
of the Code of Criminal Procedure deal with joinder of charges and joinder of
persons in a trial. Sections 234 and 239 of the Code could not be combined to
try the appellant and Henderson in a single trial for 3 offenses of cheating by
the former and 3 offenses of abetment thereof by the latter. Section 239 of the
Code was a self-contained provision and had to be read without bringing into
aid the provisions of s. 234.
Fourthly, it was pointed out that as no
sanction under s. 197 of the Code by the proper authority had been given for
the prosecution of Henderson, he could not be tried without such a sanction.
Joint trial of Henderson and the 97 appellant without such a sanction vitiated
Fifthly, it was submitted that as Burma was
not a Dominion of His Majesty's Government in 1943 the Ordinance did not apply.
In the course of the argument the fifth
submission was abandoned and, we think, rightly' It would be convenient to deal
together with the first and the fourth submissions regarding the noncompliance
with the provisions of ss. 188 and 197 of the Code of Criminal Procedure.
Before the provisions of s. 188 can apply it must be established that the
offence for which the appellant was charged was committed outside British
India. The appellant was charged with the offence of cheating. He had filed
certain claims before the Government of Burma at Simla. Those claims were
certified as true by Henderson at Jhansi. The claims of the appellant were
found to be untrue. In fact, he was not entitled to any payment in respect of
these claims. The misrepresentation by Satwant Singh was at Simla and the false
certification of the claims as true by Henderson was at Jhansi. Simla and
Jhansi were places in British India. As the result of the misrepresentation by
the appellant and the false certification by Henderson the Government of Burma
was induced thereby to make the payment of a large sum of money to the
appellant at Lahore. The payment at Lahore to the appellant was made at his own
request by cheques on the Imperial Bank of India at its Lahore Branch. Lahore
was also a place at the relevant time in British India. It is true that in the
charge framed Kolhapur was mentioned as one of the places where the cheating
had taken place. In our opinion, it was an error in the charge, as framed, to
have mentioned that any offence of cheating took place at Kolhapur. That error
in the charge, however, was a mere irregularity on a misunderstanding of the
facts which could not vitiate the trial. It was, however, urged that as the
cheques in favour of the appellant were posted at Kolhapur, in law, the payment
to the appellant had been made in Kolhapur and delivery of property, namely,
the cheques, which must be regarded as 13 98 valuable security, was made at
Kolhapur. The offence of cheating, therefore, was committed at Kolhapur and
neither at Simla nor at Lahore. In our opinion, this submission is
misconceived. The posting of the cheques at Kolhapur cannot be regarded as
delivery of the cheques to the appellant at Kolhapur because the Post Office at
that place could not be treated, in the circumstances of the present case, as
the agent of the appellant to whom the delivery of the cheques bad been made.
In fact, they were not delivered to the appellant at Kolhapur but were
delivered to him at Lahore. As regards the place of payment it was urged that
when the cheques were issued and posted at Kolhapur, the payment to the appellant
must be regarded as having been made at Kolhapur. Reliance was placed on The
Commissioner of Income Tax, Bombay South, Bombay v. Messrs. Ogale Glass Works
Ltd., Ogale Wadi (1). That case was considered by this Court in the case of The
Commissioner of Income Tax, Bihar & Orissa v. Messrs. Patney &
Co.decided on the 5th of May, 1959, and it was held that the rule in the Ogale
Glass Works' case (1) was inapplicable to the facts of the case.
In the latter case it was found by this Court
"Whatever may be the position when there
is an express or implied request for the cheque for the amount being sent by
post or when it can be inferred from the course of conduct of the parties, the
appellant in this case expressly required the amount of the commission to be
paid at Secunderabad and the rule of Ogale Glass Works' case (1)would be
inapplicable." In the present case an inquiry was made from the appellant
how he would like the payment to be made and he replied that cheques payable at
the Imperial Bank of India, Lahore Branch, should be sent to him.
Accordingly, cheques on the Imperial Bank of
India, Lahore Branch, were sent to the appellant by post in Lahore and the
appellant encashed them there. In these circumstances, the rule in Ogale Glass
Works' case (1) is inapplicable and it must be held that the payment was (1)
 1 S.C.R. 185.
(2)  36 I.T.R. 488, 99 made to the
appellant at Lahore and not at Kolhapur where the cheques had been posted.
Furthermore, what may be relevant for consideration as to the place of payment
for the purpose of the Income Tax Act may not necessarily be relevant for the
purposes of a criminal case in which the Courts have to ascertain where the
offence of cheating was committed. It seems to us, on the facts established in
this case, that no part of the offence of cheating was committed by the
appellant outside British India. His false repre- sentation to the Government
of Burma that money was due to him was at a place in British India which
induced that Government to order payment of his claims. In fact, he was paid at
Lahore at his own request by means of cheques on the Branch of the Imperial
Bank of India at Lahore. The delivery of the property of the Government of
Burma, namely, the money, was made at Lahore, a place in British India, and we
cannot regard, in the circumstances of the present case, the posting of the
cheques at Kolhapur either as delivery of property to the appellant at Kolhapur
or payment of his claims at Kolhapur. The entire argument founded on the
provisions of s. 188 of the Code therefore, fails. As the offence committed by
the appellant was not at a place beyond British India, there was no need for
the existence of a certificate of a Political Agent or, in the absence of such
a person, a sanction of the Provincial Government.
Coming to the question whether the absence of
a sanction under s. 197 of the Code vitiated the trial, it -has to be
established that Henderson was a -public servant removable by the Governor
General-in-Councll or the Provincial Government. As no objection had been taken
before the Special Tribunal by the appellant in this respect it was urged by
the Solicitor General that the prosecution had no opportunity of establishing
that Henderson, though a public servant, was a person not removable by the
Governor General- in-Council or the Provincial Government. On the other hand,
it was urged by Mr. Harnam Singh that in the High Court the objection had been
taken but it had been overruled on the ground that there was in fact a 100 sanction
in existence. The High Court was under a misapprehension. The sanction which
was in existence was under s. 270 of the Government of India Act, 1935, which
is given by the Governor General himself, where as the sanction under s. 197 of
the Code is given by the Governor General-in-Council. The sanction under s. 270
of the Government of India Act, 1935, could not therefore be treated as a
sanction under s. 197 of the Code. -In the High Court, apparently, no
submission was made that Henderson was not a public servant removable by the
Governor General-in- Council or the Provincial Government. If it is being urged
now that Henderson was not such a person then the appellant should be given an
opportunity to show that he was a public servant so removable. It is
unnecessary to deal with these submissions, which relate to a question of fact,
in view of our conclusion as mentioned below with respect to the applicability
of the provisions of s. 197 of the Code in the present case.
Under, s. 197 no Court shall 'take cognizance
of an offence committed by a public servant who is removable from his office by
the Governor General-in Council or a Provincial Government, save upon a
sanction by one or the other as the case may be, when such offence is committed
by him while acting or purporting to act in the discharge of his official duty.
Henderson was charged with intentionally aiding the appellant in the commission
of an offence punishable under s. 420 of the Indian Penal Code by falsely
stating as a fact, in his reports that the appellants claims were true and that
statement bad been made knowing all the while that the claims in question were
false and fraudulent and that he had accordingly committed an offence under s.
420/109, Indian Penal Code. It appears to us to be clear that some offences
cannot by their very nature be regarded as having been committed by public
servants while acting or purporting to act in the discharge of their official
duty. For instance, acceptance of a bribe, an offence punishable under s. 161 of
the Indian Penal Code, is one of them and offence of cheating or abetment
thereof is another. We have no hesitation in saying that where a public 101
servant commits the offence of cheating or abets another so to cheat, the
offence committed by him is not one while he is acting or purporting to act in
the discharge of his official duty, as such offences have no necessary
connection between them and the performance of the duties of a public servant,
the official status furnishing only the occasion or opportunity for the
commission of the offences (vide Amrik Singh's case (1) ). The Act of cheating
or abetment thereof has no reasonable connection with the discharge of official
duty. The act must bear such relation to the duty that the public servant could
lay a reasonable but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty (vide Matajog Dobey's case (2) ). It was
urged, however, that in the present case the act of Henderson in certifying the
appellant's claims as true was an official act because it was his duty either
to certify or not to certify a claim as true and that if he falsely certified
the claim as true he was acting or purporting to act in the discharge of his
official duty. It is, however, to be remembered that Henderson was not
prosecuted for any offence concerning his act of certification. He was
prosecuted for abetting the appellant to cheat. We are firmly of the opinion
that Henderson's offence was not one committed by him while acting or purporting
to act in the discharge of his official duty.
Such being the position the provisions of s.
197 of the Code are inapplicable even if Henderson be regarded as a public
servant who was removable from his office by the Governor General-in-Council or
a Provincial Government.
Elaborate arguments were advanced in support
of the contention that the provisions of s. 197 of the Code were not
inconsistent with the Ordinance and therefore had to be complied with before
the Special Tribunal could try Henderson. It was pointed out that under s. 6 of
the Ordinance the Special Tribunal was specifically authorized to take
cognizance of an offence without the accused being committed to it for trial
and sub-s. (2) of that section stated that " Save (1)  1 S.C.R.
(2)  2 S.C.R. 925.
102 as provided in sub-s. (1) the Code of
Criminal Procedure,1898 (V of 1898), except the provisions of section 196-A and
of Chapter XXXIII, shall so far as they are not inconsistent with this
Ordinance, apply to proceedings of a Special Tribunal ; and for the purposes of
the said provisions the Special Tribunal shall be deemed to be a Court of
Session, trying cases without a jury, and a person conducting a prosecution
before a Special Tribunal shall be deemed to be a Public Prosecutor."It
was urged that by virtue of this sub-section the provisions of the Code of
Criminal Procedure would be applicable except the provisions of s. 196-A and
Chapter XXXIII which had been expressly excluded. If s. 197 of the Code was
intended to be excluded, the Ordinance would have said so. Having regard to the
view we take that the provisions of s. 197 of the Code do not apply to the
facts of the present case as the offence of abetment of cheating by Henderson
cannot be regarded as an offence committed by him while acting or purporting to
act in the discharge of his official duty, it is unnecessary to consider the
arguments advanced in this connection.
Coming now to the 2nd and 3rd submissions
made on behalf of the appellant we have to consider whether the appellant and
Henderson could at all be jointly tried, having regard to the fact that they
were jointly tried up to a certain stage in some of the trials and to the
conclusion of the trial concerning cases Nos. 54,55 and 56. We have already
held that no part of the offence of cheating was committed by the appellant
outside British India and consequently the provisions of s. 188 of the Code did
not apply. The provisions of ss. 179 and 180 are wide enough to enable
cognizance to be taken either by a Court where anything was done within the
local limits of its jurisdiction or a court where the consequences ensued.
Illustration (c) to s. 179 clearly states that if A is put in fear of injury
within the local limits of the jurisdiction of Court X,and is thereby induced,
within the local limits of the jurisdiction of Court Y, to deliver property to
the person who put him in fear, the offence of extortion committed against A
may be inquired into or tried 103 either by X or Y. The appellant could have
been' therefore tried either at Lahore or at Simla for the offence of cheating
as the misrepresentation was at, Simla and the consequence was at Lahore as the
Government of Burma was induced by the misrepresentation to deliver property
(money) at Lahore. Under s. 180 when an act is an offence by reason of its
relation to any other act which is also an offence, a charge of the
first-mentioned offence may be inquired into or tried by a Court within the
local limits of whose jurisdiction either act was done. Illustration (a) to
this section states that a charge of abetment may be inquired into or tried
either by the Court within the local limits of whose jurisdiction the abetment
was committed or by the Court within the local limits of whose jurisdiction the
offence abetted was committed. The offence of cheating by the appellant could
have been tried either at Lahore or at Simla. Consequently, Henderson could
also have been tried for the abetment of that offence either at Lahore or at
Simla. The case of these accused was allotted to the Special Tribunal at Lahore
and would have normally been tried there but for the partition of India. The
trial under the authority of law, was concluded at Simla. There seems,
therefore, to have been no illegality committed in trying the appellant and
Henderson together at Simla.
The other line of argument in support of the
objection that the appellant and Henderson could not be tried together was
based on the provisions of ss. 233 and 239 of the Code. It was pointed out that
under the provisions of s. 233 of the Code for every distinct offence of which
any person is accused there shall be a separate charge and every such charge
shall be tried separately except in the cases mentioned in ss. 234, 235, 236
and 239. Unless, therefore, the joinder of trial of the appellant and Henderson
was permitted under s. 239 of the Code they could not be tried together. It
was: urged that in construing s. 239 of the Code it was not permissible to take
into consideration the provisions of s. 234. The only provision by which a
person accused of an offence and a person accused 104 of abetment of that
offence can be tried together in a single trial is under s. 239(b) which
permits persons accused of an offence and persons accused of abetment to be
charged and tried together. Under the terms of these provisions any number of
persons accused of commuting a single offence could be tried together with any
number of persons who had abetted that offence. But cl. (b) did not permit the
trial of persons accused of several offences and persons accused of abetment of
those offences in one trial and to try a person accused of three offences along
with a person accused of abetment of those offences would be contrary to the
provisions of cl. (b). If the provisions of s. 239(b) and s. 234 were combined
the result would be to create another exception to be added to the exceptions
stated in s. 233 of the Code. No Court had any authority to create a' new
exception to s. 233. S. 239 being an exception to s. 233 its provisions had to be
construed strictly. The plain words of s. 239(b) make it quite clear that
persons who had committed a single offence and those who abetted it only could
be tried together. Since the appellant is said to have committed three offences
of cheating and Henderson three offences of abetment thereof, the provisions of
s. 239(b) did not apply and their trial together was vitiated.
It was further pointed out that if there had
been misjoinder of trial in the present case it could not reasonably be said
that the appellant had not been prejudiced. If the appellant bad been tried
apart from Henderson. Henderson's confession and all the evidence against him
would have been excluded at the trial of the appellant. As the result of
Henderson and the appellant being tried together all the evidence against
Henderson and his confession must have necessarily adversely affected the case
of the appellant.
On the other hand, the Solicitor-General
submitted that the provisions of the Code of Criminal Procedure must be
construed as they stand and reference to decided cases may be made to assist
the court in the matter of construction if necessary. The Code itself nowhere
stated that ss. 234 and 239 of the Code 'were mutually exclusive. The entire
scheme of joinder of 105 charges and joinder of persons in a single trial has
been set out in the Code. Although s. 233 of the Code is clear enough, it has
expressly expected from the application of its provisions ss. 234, 235, 236 and
239. Sections 234, 235, 236 and 239 are permissive sections. They are not
compelling sections. That is to say, although these sections permit joinder of
charges and joinder of persons a Court may well consider it desirable in the
interest of justice and having regard to the circumstances of a particular case
that the charges framed should be split up and separate trials should take
place in respect of them and the accused be tried separately. It was to avoid
multiplicity of trials, harassment to the accused and waste of time that the
permissive ss. 234, 235, 236 and 239 enable a court, within their terms, to
join charges and persons in a single trial. Section 239 permitted joinder of
charges and persons in a single trial in cases covered by cls. (a) to (g).
These clauses permitted the joinder of persons as accused in one trial and they
contemplated the various circumstances in which such persons could be tried
together. Joinder of several persons in one trial necessarily involves the
framing of more than one charge. If the joinder of charges was within the terms
of the section, then the provisions of s. 233 had no application. Although in
cl. (b) of the section the words used are "persons accused of an offence
and persons accused of abetment, or of an attempt to commit such offence
", a reasonable construction of these words could not lead to the
conclusion that the words " an offence " meant a single offence
because under s. 13 of the General Clauses Act (Central Act X of 1897) words in
the singular shall include the plural and vice versa. Under cl. (b), therefore,
persons accused of several offences and persons accused of abetment thereof
could be tried together in a single trial. The concluding words of s. 239
" and the provisions contained in the former part of this Chapter shall,
so far as it may be, apply to all such charges " permitted a court to
apply that part of Chapter XIX which preceded s. 239.S. 234 was one such
provision and a court could resort to its provisions so far as they were
applicable, 14 106 It was further pointed out by the Solicitor-General that
although the appellant was asked to specify the points of law upon which these
appeals would be urged, he did not state that, in fact, he had been pre-judiced
by a joint trial of himself and Henderson. He also pointed out that as the
result of the amendment of the Code of Criminal Procedure misjoinder of charges
did not vitiate the trial unless the misjoinder had, in fact, occasioned
failure of justice.
we now proceed to consider some of the
provisions of Chapter XIX of the Code which deal with the form of charges and
the joinder of charges as well as joinder of persons. So far as the form of the
charge is concerned, the provisions of ss. 221 to 232 of the Code would apply
in any event where a single accused was being tried on a single or several charges
or where several accused were tried for various offences at one trial within
the terms of s. 239 of the Code. So far as joinder of charges is concerned, s.
233 clearly required that for every distinct offence of which any person was
accused there must be a separate charge and every such charge must be tried
separately. The framers of the Code, however, realised that it would be
impracticable to have for all circumstances such a rigid rule. The section,
accordingly, excepted from its provisions cases which were covered by ss. 234,
235, 236 and 239. S. 234 accordingly permitted a single accused to be tried at
one trial for more offences than one of the same kind committed within the
space of 12 months provided they did not exceed three in number. S. 235 went a
step further. It permitted an accused person to be tried for more offences than
one committed by him and the framing of -a charge with respect to every such
offence, provided that the series of acts were soconnected together as to from
the same transaction. It also permitted that if the acts alleged constitute an
offence falling within two or more separate definitions of any law in force for
the time being by which offences are defined or punished, the person accused of
them may be charged with, and tried at one trial for,each of such offences. It
also provided that if several acts of which one or more than one would by or
them-selves constitute an offence, constitute when combined 107 a different
offence, the person accused of them may be charged with, and tried at one trial
for the offence constituted by such acts when combined, and for any offence
constituted by any one, or more of such acts. S. 236 permitted the framing of
alternative charges where a single act or series of acts is of such a nature
that it is doubtful which of several offences the facts which can be proved
will constitute, the accused may be charged with having committed all or any of
such offences and any number of such charges may be tried at once.
By s. 239 joinder of persons in a single
trial is permitted in the circumstances mentioned in cls. (a) to (g). At the
trial of such persons charges would have to be framed.
Indeed, the section commences with the
following words :- " The following persons may be charged and tried together...."
Leaving cl. (b) out for the moment the other clauses of the section clearly
contemplate the framing of more than one charge against accused persons when
tried together. Under cl. (a) persons accused of the same offence committed in
the course of the same transaction can be tried together. Under cl. (c) persons
accused of more than one offence of the same kind within the meaning of s. 234
committed by them jointly within the period of 12 months can also be tried
Under cl. (d) persons accused of different
offences committed in the course of the same transaction can be tried together.
Similar is the position in cases mentioned in cls. (e), (f) and It is clear,
therefore, that the general rule that for every distinct offence of which any
person is accused there shall be a separate charge, and every such charge shall
be tried separately has no application to these clauses. Indeed s. 233
contemplated that and expressly excluded the application of its provisions to
s. 239. The entire tenor of the provisions of s. 239 indicates that several
persons could be tried together for several offences committed in the
circumstances mentioned therein. There is no apparent reason why cl. (b) should
be construed in the way suggested by Mr. Harnam Singh, 108 according to whom,
in one trial any number of persons could be tried for a single offence along
with any number of persons accused of abetment of that offence. The argument
was based on the words " an offence in that clause and the suggestion was
that these words meant a single offence.
Having regard to the providers of s. 13 of
the General Clauses Act, the singular includes the plural and it would not be
straining the language of the clause if the same was construed also to mean
that persons accused of several offences and persons accused of abetment
thereof could be tried together at one trial. So construed framing of three
charges under s. 420, Indian Penal Code, against Satwant Singh and three
charges of abetment against Henderson in the same trial did not infringe the
provisions of cl. (b).
Furthermore, the concluding words of the
section make it clear that the provisions contained in the former part of
Chapter XIX, i.e., previous to s. 239 as a far as may be shall apply to all
charges framed at the trial. It was suggested that the words " the former
part of this Chapter " referred to ss. 221 to 232 as Chapter XIX is in two
parts, the first part being the form of charges and the second part joinder of
charges. Although such headings do appeal in the Chapter, it is to be noticed
that Chapter X LX does not divide itself into several parts as is to be found
in many of the Chapters of the Code, e.g., in Chapter XXIII the parts are
headed A to L. It is further to be noticed that words similar to the concluding
words of s. 239 do not appear in s. 235 of the Code.The reason for these words
appearing in s. 239 of theCode appears to be that this section permits persons
to be charged and tried together. The (lode obviously contemplated that when
charges were being framed against each of the several accused in the cases
contemplated in s. 239, not only the provisions concerning the form of charges
but also the provisions concerning the joinder of charges, as far as may be,
should apply. In these appeals the appellant was charged in one trial for three
offences of cheating and Henderson for abetment of the same. If the appellant
had been tried alone he could have been tried for three charges of cheating 109
committed within 12 months and Henderson, in a separate trial, could have been
tried for three offences of abetment of the same offences committed within 12
months. There is no good reason for thinking that when cl. (b) of s. 239
permitted the joinder of the appellant and Henderson in a single trial for the
commission of the offence of cheating and abetment thereof, the same was
confined to one offence of cheating and one offence of abetment. In our
opinion, the trial of the appellant and Henderson together on the charges as
framed did not vitiate the trial.
It is unnecessary to deal with the last
submission of the Solicitor-General that the appellant had taken no ground that
he had been prejudiced by his joint trial with Henderson because such a
question does not arise, having regard to the view we take that there was no
misjoinder of trial.
On behalf of the appellant, certain
circumstances were urged in mitigation of the sentence. It was pointed out that
Henderson's sentence was reduced to 2 month's imprisonment and a small fine,
the proceedings against the appellant had been going oil since 1945, the
appellant had already served some three months' imprisonment and that there was
also a substantial fine. Accordingly, it was prayed that the sentence of
imprisonment may be reduced to the period already undergone while the sentence
of " ordinary " fine may be maintained. The measure of punishment
must be commensurate with the nature and the seriousness of the crime. The
appellant had cheated the Government of Burma to the extent of something like 7
lakhs of rupees. It is impossible to say that the sentence of imprisonment as
reduced by the High Court was in any way excessive. The fact that Henderson
received a light punishment is not a relevant circumstance. The prayer for a
further reduction of the sentence cannot be acceded to.
The appeals filed by Satwant Singh are
Criminal Appeals Nos. 124 to 129 of 1954.
In these appeals the State of Punjab has
appealed against that part of the judgment of the High Court 110 which set
aside the order of the Special Tribunal imposing what has been described as
'compulsory" fines. The High Court felt that it was bound by the decisions
of this Court in the cases of Rao Shiv Bahadur Singh v. The State of Vindhya
Pradesh and Kedar Nath Bajoria v. The State, of West Bengal (2).
It was urged by the Solicitor-General that
the Special Tribunal was in error in describing the fines imposed by it as
" ordinary " and " compulsory ".Section 10 of the Ordinance
contemplated no such distinction. What it did direct was, whether or not a
sentence of imprisonment was imposed by the Special Tribunal, that a sentence
of fine must be imposed and that fine shall not be less in amount than the
amount of money or value of other property found to have been procured by the
offender by means of the offence.
In other words, the section imposed a minimum
fine, in any event, whether a sentence of imprisonment was or was not imposed.
In the present case a sentence of imprisonment was, in fact imposed and the
total of fines imposed, whether described as " ordinary " or "
compulsory ", was not less than the amount of money procured by, the
appellant by means of his offence. Under s. 42O of the Indian Penal Code an
unlimited amount of fine could be imposed. Article 20(1) of the Constitution is
in two parts. The first part prohibits a conviction of any person for any
offence except for violation of law in force at the time of the commission of
the act charged as an offence. The latter part of the Article prohibited the
imposing of a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence. The offence with
which the appellant had been charged was cheating punishable under s. 420 of
the Indian Penal Code, which was certainly a law in force at the time of the
commission of the offence. The sentence of imprisonment which was imposed upon
the appellant was certainly not greater than that permitted by s. 420, The
sentence of fine (1)  S.C.R. 1189.
(2)  S C.R. 30.
111 also was not greater than that which
might have been inflicted under the law which had been in force at the time of
the commission of the offence, as a fine unlimited in extent could be imposed
under the section. It was further pointed out that at least Case No. 58, out of
which arose Criminal Appeal No. 112 of 1949 in the High Court, was one to which
the provisions of Art. 20 could not apply as the conviction in that case was
recorded on the 24th of January, 1949, before the Constitution came into force.
Mr. Harnam Singh, on the other hand, drew our
attention to s. 63 of the Indian Penal Code and submitted that a sentence of
fine could at no time be excessive and therefore the, sentence of fine which
could be imposed under s. 420 was not entirely unlimited as it could not be
excessive. In considering whether a fine would or would not be excessive
various considerations had to be kept in mind including the seriousness of the
offence and the means of the accused.
Section 63 of the Indian Penal Code expressly
states that where no sum is expressed to which a fine may extend the amount of
fine to which the offender is liable is unlimited.
Section 420 of the Indian Penal Code does not
express a sum to which a fine may extend, as some of the sections of the Indian
Penal Code do. As the section stands, therefore, the extent of fine which may
be imposed by a Court under it is unlimited. Whether a fine imposed in a
particular case is excessive would be a question of fact in each case. That
consideration, however, is entirely irrelevant in considering whether Art. 20
of the Constitution has been contravened by the provisions of s. 10 of the
Ordinance as the extent of fine which can be imposed under s. 420, by law, is
unlimited. It cannot be said that s. 10 of the Ordinance in imposing the
minimum fine which a court shall inflict on a convicted person was a penalty
greater than that which might have been inflicted on that person under the law
in force at the time of the commission of the offence, where under such law the
extent of fine which could be imposed is unlimited.
112 In the case of Rao Shiv Bahadur Singh
(1), referred to above, this Court held that Art. 20 of the Constitution must
be taken to prohibit a conviction or subjection to penalty after the
Constitution in respect of ex post facto law whether the same was a
pre-Constitutional law or a post- Constitutional law. The prohibition under the
Article was not confined to the passing or the validity of the law but extended
to the conviction or :the sentence and was based on its character as ex post
facto law and therefore fullest effect must be given to the actual words used
in the Article. It had been urged in that case that the Vindhya Pradesh
Ordinance (No. XLVIII of 1949) was an ex post facto law. This Court, however, held
that Ordinance was not ail ex post facto law. The contention that the
provisions of Art. 20 of the Constitution had, been contravened was rejected
and it was held that the criminal law relating to offences charged against the
accused at the time of their commission was substantially the same as obtained
at the time of the conviction and sentence under the Indian Penal Code. In Rao
Shiv Bahadur Singh's case (1) this Court had not to consider whether an ex post
facto law imposing a minimum fine for an offence with respect to which an
unlimited fine could be imposed by the law in existence at the time of the
commission of the offence contravened the provisions of Art. 20. In Kedar Nath
Bajoria's case (2), in addition to the sentence imposed under the ordinary law,
the first appellant was fined Rs. 50,000, including the sum of Rs. 47,550
received by him as required by s. 9(1) of the West Bengal Criminal Law
(Amendment) Act of 1949. Reference to the decision in Rao Shiv Bahadur Singh's
case(1)was made and this Court held that, in any event, the fine to the extent
of Rs. 47,550 would be set aside. This Court, however, did not decide whether
the total fine imposed was greater than what could be imposed under the law as
it was at the commission of the offence. It assumed that Rao Shiv Bahadur
Singh's case (1) supported the contention of the first appellant in that case.
It is significant that in directing that the appeal would be heard in due
course on merits this Court stated that it would be open to the Court in case
(1)  S.C.R. 1189.
(2)  S.C.R. 30.
113 the conviction was upheld to impose such
appropriate fine as it thought fit in addition to the sentence of imprisonment.
In the present case even if it be assumed
that s. 10 of the Ordinance as an ex post facto law ill that in the matter of
penalty a minimum sentence of fine was directed to be imposed by a court
whereas at the time that the appellant committed the offence s. 420 contained
no such provision, what is prohibited under Art. 20 of the Constitution is the
imposition of a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence. The total
sentence of fine- "ordinary " and " compulsory "-in the
present case cannot be said to be greater than that which might have been
imposed upon the appellant under the law in force at the time of the commission
of the offence, because the fine which could have been imposed upon him under
s. 420 was unlimited. A law which provides for a minimum sentence of fine on
conviction cannot be read as one which imposes a greater penalty than that
which might have been inflicted under the law at the time of the commission of
the offence where for such an offence there was no limit as to the extent of fine
which might be imposed. Whether a fine was excessive or not would be a question
of fact in each particular case but no such question can arise in a case where
the law imposes a minimum sentence of fine. Under Art. 20 of the Constitution
all that has to be considered is whether the ex post facto law imposes a
penalty greater than that which might be inflicted under the law in force at
the time of the commission of the offence. For the reasons already stated it
cannot be said that s. 10 of the Ordinance imposed any such penalty and
therefore was in contravention of the provisions of Art. 20.
These appeals are accordingly allowed and the
order of the High Court setting aside the "compulsory " fines imposed
by the Special Tribunal is set aside and the orders of the Special Tribunal
imposing the " compulsory " fines are restored.
KAPUR J.-I have read the judgment prepared by
my learned brother Imam, J. I agree to the order 15 114 proposed and the
reasons there for except that I would base the inapplicability of s. 197,
Criminal Procedure Code, to the facts of the present case on different grounds.
The legislature in India has considered it
necessary to provide a large measure of protection for public officials from
unnecessary harassment and for that purpose s. 197 was enacted in the Criminal
Procedure Code and this was recognised by Lord Simonds in the Privy Council
case Gill v. The King(1). That this is the legislative policy may also be
gathered from a subsequent enactment, the Prevention of Corruption Act where
such provision was incorporated in regard to offences of bribery, corruption
and also misapprehend privation. But the question still remains to what cases
this protection is made applicable.
The contention raised on behalf of the
appellant was that his case was prejudiced because of a joint trial with
Henderson, who it is contended, was a Major in the Indian Army and who was
charged for abetting the offence of cheating committed by the appellants The
argument raised was that Henderson having been commissioned to and in the
Indian Army was not removable from his office except with the sanction of the
Central Government, i.e., the then Governor General-in-Council and as there was
no such sanction he could not validly be tried for the offence he was charged
with. The case made before us in this Court was that the claims put forward by
the appellant were sent to Henderson for verification and Henderson verified
them to be correct and that he did this while acting or purporting to act in
the discharge of his duty as public servant.
The question then is whether the facts which
are alleged to constitute the offence of abetment of cheating under s. 420,
read with s. 109, Indian Penal Code, fall within s. 197, Criminal Procedure
In Gill v. The King (1) the Privy Council
laid down the following test as to when a public servant is said to or purports
to act in the discharge of his official duty. Lord Simonds there said at p.
59:- (1) 75 I.A. 41.
115 "A public servant can only be said
to act or to purport to act in the discharge of his official duty. if his act
is such as to lie within the scope of Is official duty. The test may well be
whether the public servant, if challenged, can reasonably claim that, what he
does, he does in virtue of his office." The same test was repeated in
Meads' case (1) and in Phenindra Chandra Neogy v. The King(2). Gill's case(3)
and Neogy's case (2) dealt with an offence of bribery under s.
161, but Meads' case(1) was a case of a
Courtmartial against an officer who was alleged to have misappropriated money
entrusted to him and his defence was that while he was sleeping, the currency
notes were burnt by the falling of a candle which was burning in his room. In
Hori Rain Singh's case (4) which was approved by the Privy Council and this
Court in Amrik Singh's case (5), Vardachariar, J., had accepted the correctness
of that track of decision which had held that sanction was necessary when the
act complained of attached to the official character of the person doing it.
The test was thus stated by Venkatarama
Aiyar, J., in Amrik Singh's case (5) at p. 1307:
" but if the act complained of is
directly concerned with his official duties so that, if questioned, it could be
claimed to have been done by virtue of the office, then sanction would be
necessary; and that would be so, irrespective of whether it was, in fact, a
proper discharge of his duties, because that would really be a matter of
defence on the merits, which would have to be investigated at the trial, and
could not arise at the stage of the grant of sanction, which must precede the
institution of the prosecution." Even in regard to cases of
misappropriation, this Court in Amrik Singh's case (5) was of the opinion that
if the act complained of is so integrally connected with the duties attaching
to the office as to be inseparable from them, then sanction would be necessary,
but if there is no connection between them and the performance of those duties,
the official status furnishing (1) 75 I.A. 185. (3) 75 I. A. 41.
(2) 76 I.A. 10. (4)  F.C.R. 159.
(5)  1 S.C.R. 1302.
116 only the occasion or opportunity for the
act, then no sanction would be necessary. There are two other cases reported in
the same volume, Ronald Wood Mathams v. State of West Bengal (1) and Shree Kanthiah
Ramayya Munipalli v. The State of Bombay(2 )which also relate to sanction under
s. 197, Criminal Procter Code. After reviewing all these various authorities
Venkatarama Aiyar, J., held at p. 1310:- "The result then is that whether
sanction is necessary to prosecute a public servant on a charge of criminal
misappropriation, will depend on whether the acts complained of hinge on his
duties as a public servant. If they do, then sanction is requisite. But if they
are unconnected with such duties, then no sanction is necessary." In this
view of the law we have to decide whether sanction was necessary or not and it
is a matter for investigation as to whether an Army officer situated as
Henderson was so removable even if there was evidence to show that he was attached
to the Indian Army. Secondly, it will have to be decided oil evidence that the
act complained of against Henderson, that is, verifying the claim of the
appellant which is the basis for the allegation of abetment of the offence of
cheating is directly concerned with his official duties or it was done in the
discharge of his official duties and was so integrally connected with and
attached to his office as to be inseparable from them. There is evidence
neither in support of one, nor of the other.
In this particular case if it was desired to
raise such a question, that should have been done at the earliest moment in the
trial Court when the facts could have been established by evidence. This is not
the stage for asking the facts to be proved by additional evidence. In the
grounds of appeal to the High Court the objection was to the form of the
sanction. It also appears that no argument was raised in the High Court that
the sanction under s. 270 of the Constitution Act could not take the place of a
sanction under s. 197, Criminal Procedure Code, because the scope of the two
(1)  1 S.C.R. 216, (2)  1 S.C.R. 1177.
117 provisions is different. But as I have
said above the evidence to support the plea under s. 197 and to establish the
requisite nexus between the act done by Henderson and the scope and extent of
his duties is lacking and therefore the applicability of s. 197 to the facts of
the present case cannot be held to have been proved.
In my opinion the foundation has not been
laid for holding that sanction under s. 197 was necessary in the instant case.
I therefore agree that the appeals be dismissed.
By court.-The petitioner's Criminal Appeals
Nos. 100 to 105 of 1954 having been dismissed and the conviction of the
petitioner having been upheld, this petition is dismissed.