Shreekantiah Ramayya Munipalli Vs. The
State of Bombay  INSC 126 (22 December 1954)
BOSE, VIVIAN MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION: 1955 AIR 287 1955 SCR (1)1177
Criminal Procedure Code, (Act V of 1898), s.
197-Prevention of Corruption Act, 1947 (II of 1947), s. 5(2)-Charge there under
and charge under s. 409 of the Indian Penal Code (Act XLV of 1860)Separated
from each other-Sanction granted under s. 5(2) of the Prevention of Corruption
Act-Whether could be extended as to cover prosecution under s. 409 of the
Indian Penal Code-S. 197 of the Code of Criminal Procedure-Scope and
construction of-Indian Penal Code, s. 34-Essence of-Whether the person must be
physically present at the actual commission of the crime.
The three accused-Government servants-were
jointly charged with an offence punishable under s. 5(2) of the Prevention of
Corruption Act, 1947 and all three were further jointly charged with having
committed breach of trust in furtherance of the common intention of all under
s. 409 of the Indian Penal Code read with s. 34. Then followed a number of
alternative charges in which each was separately charged with having committed
criminal breach of trust personally under s. 409. As a further alternative, all
three were 1178 jointly charged under s. 409 read with s. 109 for having
abetted each other in the commission of a criminal breach of trust under s.
409. On objection taken to these charges, the trial for the offence under s.
5(2) of the Prevention of Corruption Act was separated from the trial under s.
409 of the Indian Penal Code. The charges were reframed. One under s. 5(2) was
dropped while others remained. On 27-101949 the Governor-General acting under
s. 197 of the Code of Criminal Procedure sanctioned the prosecution of the
first accused (appellant No. 1) for offences under ss. 120-B, 409, 109 for
having conspired with the other two to commit criminal breach of trust in
respect of properties belonging to Government and for having thus abetted the
commission of that offence and also for having committed it. Similar sanction
was not given against the other two accused and was limited only to the first
accused. On the same date sanction was given for the prosecution of the first
accused under s. 5(2) of the Prevention of Corruption Act, 1947 and a similar
sanction was given against the second accused.
The question was whether this sanction
against the second accused could be extended to cover his prosecution under s. 409
and whether his trial was valid.
Held, (answering the question in the
negative) that under s. 197 of the Code of Criminal Procedure the sanctioning
authority was the Governor-General. Under the Prevention of Corruption Act,
1947 the sanctioning authority was the Central Government. Either one, or two,
Government authorities were given the right and invested with the duty of
making an election. If two Government authorities are given the right to choose
and neither can encroach upon the preserve of the other, then the Governor-General
has not sanctioned the present prosecution against the second accused
(appellant No. 2) and no other authority has the power to do so. Therefore the
sanction given to prosecute under s. 5(2) of Act II of 1947, could not be used
to cover the present trial, because it was given by an authority not competent
to give it.
If, on the other hand, the two authorities
are really one, then the election has been made clearly. The sanction under s.
5(2) of the Prevention of Corruption Act, 1947 as amended by Act LIX of 1952
and Act XLVI of 1952 is to proceed in special courts with a special procedure
so the present trial against the second accused was incompetent.
It is well-settled that a defect of this
nature is fatal and cannot be cured when s. 197 applies and, as it did,
sanction was necessary so the trial was vitiated from the start. The
proceeding,,; were accordingly quashed.
If s. 197 of the Code of Criminal Procedure
is construed too narrowly it can never be applied for it is no part of an
official's duty to commit an offence and never can be. But it is not the duty
of an official which has to be examined so much as his act, because an official
act can be performed in the discharge of official duty as well as in
dereliction of it. The section has content and its language must be given
1179 In the case of the first accused there
was misdirection in the charge to the Jury under s. 34. The essence of the
misdirection consisted in the Sessions Judge's direction to the jury that even
though a person may not be present when the offence is actually committed and
even if he remains "behind the screen" he can be convicted under s.
34 provided it is proved that the offence was committed in furtherance of the
common intention. This is wrong because the essence of the section is that the
person must be physically present at the actual commission of the crime.
The misdirection is plain and goes to the
root of the case because the jury returned a verdict of guilty under s. 409
read with s. 34 alone and not under s. 409 read with s. 109, I.P.C.
Held, that in cases which raise questions of
substance and importance the High Courts should not pass summary orders of
rejection without giving some indication of their views on the points raised
Mushtak Hussein v. The State of Bombay
( S.C.R. 809), The State v. Gurucharan Singh (A.I.R.  Punjab 89),
Gokulchand Dwarkadas v. The King (A.I.R.  P.C. 82), Hori Ram Singh v. The
Crown ( F.C.R. 159), Madan Mohan v. The State of Uttar Pradesh (A.I.R.
 S.C. 637), Lieutenant Hector Thomas Huntley v. The King-Emperor (
F.C.R. 262), and Barendra Kumar Ghosh v. The King-Emperor ( L.R. 52 I-A.
40), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 89 and 90 of. 1954.
Appeals by Special Leave from the Judgment
and Order dated the 23rd November 1953 of the High Court of Judicature 'at
Bombay in Criminal Appeal No. 1213 of 1953, and from the Judgment and Order
dated the 25th August 1953 of the High Court of Judicature at Bombay in
Criminal Appeal No. 1121 of 1953 arising out of the judgment and decree dated
the 6th August 1953 of the Court of Sessions Case No. 36 of 1952.
S. Narayanaiah and Dr. C. V.L. Narayan, for
the appellant in Criminal Appeal No. 89 of 1954.
C. Sanjeevarow Nayadu and R. Ganapathy Ayyar,
for the appellant in Criminal Appeal No. 90 of 1954.
M.C. Setalvad, Attorney-General of India (G.
N. Joshi and Porus A. Mehta, with him) for the respondent.
151 1180 1954. December 22. The Judgment of
the Court was delivered by BOSE, J.-These two appeals arise out of the same
trial. The two appellants, Shreekantiah (the first accused in the trial Court
and the appellant in Appeal No. 89 of 1954) and Parasuram (the second accused
and the appellant in Appeal No. 90 of 1954) were tried with a third accused
Dawson on a number of different charges centering round section 409 of the
Indian Penal Code: criminal breach of trust by a public servant. The trial was
by jury and all three were found guilty of an offence under section 409 read
with section 34.
They were convicted and sentenced as under:
Accused No. 1. Shreekantiah to one year and a
fine of Rs. 500 with four months in default;
Accused No. 2. Parasuram to two years and a
fine of Rs. 500 with six months in default; and Accused No. 3. Dawson to six
months and a fine of Rs. 200 with two months in default.
The appeal of the second accused to the High
Court was dismissed summarily on 25-8-1953 with the one word
"dismissed". The first and third accused appealed separately. Their
appeal was heard by another Bench and was admitted, and a reasoned judgment
followed on 23-11-1953.
This, to. say the least, was, in the
circumstances of this case, anomalous. The appeals arise out of the same trial
and are from one judgment and relate to the same charge to the jury, and what
is more they raise substantially the same points. This Court was constrained to
express its disapproval of the summary rejections of appeals which raise issues
of substance and importance. We draw attention to the remarks in Mushtak
Hussein v. The State of Bombay(1).
Those observations apply with even greater
force in the present case.
The three accused are Government servants. At
all material times, the first was the Officer Commanding, the Military
Engineering Stores Depot at Dehu Road near Poona. He was in over-all charge.
The (1)  S.C.R. 809, 820.
1181 second was under him as the officer in
charge of the Receipts and Issue control section. The third worked directly
under the second as the Assistant Stores Officer.
The depot is maintained by the Central
Government and covers an area of some 150 acres. Government stores worth
several lacs of rupees are kept there. On 11-9-1948 iron stores worth about Rs.
4,000 were illegally passed out of the depot and were handed over to one
Ibrahim Fida Hussain, an agent of the approver Mohsinbhai (P.W. 1). The case
for the prosecution is that the three accused, who were in charge of these
stores and to whom they had been entrusted in various capacities, entered into
a conspiracy to defraud Government of these properties and that in pursuance of
this conspiracy they arranged to sell them to the approver (P.W. 1) for a sum
of Rs. 4,000. The money is said to have been paid and then the stores were
passed out of the depot. The money is said to have been pocketed by the three
accused and not credited to Government.
On these facts a number of charges were
framed. The first set was drawn up on 9-7-1953. All three accused were jointly
charged with an offence punishable under section 5(2) of the Prevention of
Corruption Act, 1947 and all three were further jointly charged with having
committed criminal breach of trust in furtherance of the common intention of
all under section 409 of the Indian Penal Code read with section 34.
Then followed a number of alternative charges
in which each was separately charged with having committed criminal breach of
trust personally under section 409.
As a further alternative., all three were
jointly charged under section 409, Indian Penal Code read with section 109 for
having abetted each other in the commission of a criminal breach of trust under
Objection was at once taken to these charges
and the one which concerns us now was couched in the following terms;
1182 "It is further submitted that the
trial under section 5(2), Corruption Act, 1947 with Indian Penal Code section
409 is likely to embarrass the accused in their defence as it would be
difficult to efface the evidence (if any) of the accused persons given on oath
from the minds of the Jurors when considering the charge under section 409,
Indian Penal Code.
It is therefore prayed that the charges under
sec409, Indian Penal Code and section 5(2) of the Corruption Act may not be
tried together in one trial".
The Assistant Public Prosecutor said he had
no objection to separating the charges and leaving the one under section 5(2)
for another trial. The Court then made the following order on 10-7-1953:
"Thus, though a joint trial for offence
under section 5(2) of the Prevention of Corruption Act and the offences under
the Indian Penal Code is legal and valid,, I think, in view of the
circumstances mentioned above, it would be in the interest of justice and also
in the interests of the accused themselves if the trial for the offence under
section 5(2) of the Prevention of Corruption Act is separated. I therefore
grant the application to this extent and order that the charge should be
In view of this the charges were re-framed on
The only difference of substance is that the
charge under section 5(2) was dropped. The others remained.
Now it will be observed that the accused are
all public servants and they contend that as, according to the prosecution,
they purported to act in the discharge of their official duties, sanction was
necessary under section 197 of the Criminal Procedure Code. There is sanction
so far as the first accused is concerned but the -second accused contends that
there is none in his case to justify the present trial, so his trial,,
conviction and sentence are bad.
The position about this is as follows: On
27-10-1949 the Governor-General, acting under section 197 of the Code of
Criminal Procedure, sanctioned the prosecution of the first accused for
offences tinder sections 1183 120-B, 409, 109 and so forth, for having
conspired with the other two to commit criminal breach of trust in respect of
the properties with which this case is concerned and thus for having abetted
the commission of that offence, and also for having committed it. Similar
sanction could easily have been given against the other two accused but it was
The sanction for these offences was limited
to the first accused.
On the same date sanction was also given for
the prosecution of the first accused under section 5(2) of the Prevention of
Corruption Act and a similar sanction was given against the second accused. The
question is whether this sanction against the second accused can be extended to
cover his prosecution under section 409 of the Indian Penal Code. In our
opinion, it cannot.
At the date of the sanction the unamended
Prevention of Corruption Act (II of 1947) was in force. Criminal breach of
trust under section 409 of the Indian Penal Code was included in the definition
of "criminal misconduct" under section 5(1)(c) of the Act of 1947.
Therefore, an offence under section 409 could be tried under the Act of 1947
and the question arose whether it would have to be tried under that Act, or
whether it could also be tried in the ordinary way by the ordinary Courts. The
Punjab High Court held in The State v. Gurucharan Sinah(1) that it could not.
Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and
section 4 of the amending Act makes it clear that the trial can be under either
law. But in the same year the Criminal Law Amendment Act, 1952 (Act XLVI of
1952) was passed and because of this Act trials under section 5(2) of the
Prevention of Corruption Act must be before a Special Court and a special
procedure must be followed. Therefore, the position which these various Acts
created was this.
First, a choice was conferred on some
authority to choose whether any given accused should be tried in a special
Court with a special procedure and be subject to a lesser punishment under
section 5(2) or whether he should be tried in the ordinary way under section
409 of the Indian Penal Code with the risk of a higher punishment.
The question then is who is to do the
choosing. Under section 197 of the Code of Criminal Procedure the GovernorGeneral
was at that date the sanctioning authority though the words "exercising
his individual judgment" had by that time been deleted. Under the
Prevention of Corruption Act the sanctioning authority was the "Central Government".
Now it may well be that the two mean the same thing because of section 8(a) of
the General Clauses Act but that makes no difference at the moment. The fact
remains that either one, or two, Government authorities were given the right,
and invested with the duty, of making an election. They had the right to say
whether a certain class of public servant who had committed criminal breach of
trust should be tried for that offence under section 409 of the Indian Penal
Code in the ordinary courts of the land according to the normal procedure
obtaining there and be subject to a maximum penalty of ten years plus an
unlimited fine or be tried for the same offence under another name in a special
court by a special procedure and be subject to no more than seven years plus a
fine which is also unlimited.
At this stage of the arguments we asked the
learned counsel for the appellants whether they intended to challenge the vires
of this law under article 14 of the Constitution because, if they did, the
matter would have to go to a Constitution Bench as we, being only three Judges,
would have no power to decide it. The learned Attorney-General at once objected
because the point had not been raised at any stage and was not to be found even
in the grounds of appeal to this Court. The learned counsel for the appellants
replied that they did not wish to take the point.
Accordingly, we have to proceed in this case
on the assumption that the amending Act of 1952 (Act LIX of 1952) is valid.
That results in the position we have outlined above. There is a choice, not
only of forum, but also of procedure and the extent of the maximum penalty. If
two separate authorities are given the right to 1185 choose and neither can
encroach upon the preserve of the other, then the Governor-General has not
sanctioned the present prosecution against the second accused and no other
authority has the power to do so. Therefore, in that event, the sanction given
to prosecute under section 5(2) cannot be used to cover the present trial because
it is given by another authority not competent to give it.
On the other hand , if the two authorities
are really one, then the election has been made clearly and unequivocally.
The sanction is to proceed in the special
courts with the special procedure and the second accused is not to be exposed
to the risk of the higher penalty. In that event, the present trial against the
second accused is incompetent.
That a defect of this kind is fatal and
cannot be cured is well settled. See the Privy Council in Gokulchand Dwarkadas
v. The King(1), the observations of Varadachariar, J. in Hori Ram Singh v. The
Crown(1) and the decision of this Court in Madan Mohan v. The State of Uttar
Pradesh(1). But the learned Attorney General argued that no sanction was necessary
because, according to him, despite what the second accused says, by no stretch
of imagination can he be said to have been acting, or even purporting to act,
in the discharge of his official duty. The argument ran as follows:-The act
complained of here is the breach of trust and the prior abetment of it: the
breach occurred as soon as the goods were loaded on Mohsinbhai's lorries: it
was no part of this accused's official duties to permit an unauthorised removal
of the goods: therefore., when he allowed that he neither acted. nor purported
to act, in the discharge of his official duties. Reference was made to the
decision of the Federal Court in Lieutenant Hector Thomas Huntley v. The
King-Emperor(1) where Zafrullah Khan, J. held that "it must be established
that the act complained of was an official act", and to the observations
of Varadachariar, J. in Hori Ram Singh v. The Crown(1) (1) A.I.R. 1948 P.C. 82.
(3) A.I.R. 1954 S.C. 637, 641.
(2)  F.C.R. 159, 184.
(4)  F.C.R. 262, 269.
(5)  F.C.R. 159, 186.
1186 where, dealing with section 409 of the
Indian Penal Code, he says"Though a reference to the capacity of the
accused as a -public servant is involved both in the charge under section 409
and in the charge under section 477-A, there is an important difference between
the two cases, when one comes to deal with the act complained of. In the first,
the official capacity is material only in connection with the 'entrustment' and
does not necessarily enter into the later act of misappropriation or
conversion, which is the act complained of".
What this argument overlooks is that the
stress in the passage quoted is on the word "necessarily" which we
have underlined. A later passage at page 187 explains this:
"I would observe at the outset that the
question is substantially one of fact, to be determined with reference to the
act complained of and the attendant circumstances; it seems neither useful nor
desirable to paraphrase the language of the section in attempting to lay down
hard and fast tests".
With that we respectfully agree. There are
cases and cases and each must be decided on its own facts.
Now it is obvious that if section 197 of the
Code of Criminal Procedure is construed too narrowly it can never be applied,
for of course it is no part of an official's duty to commit an offence and
never can be. But it is not the duty we have to examine so much as the act,
because an official act can be performed in the discharge of official duty as
well as in dereliction of it. The section has content and its language must be
given meaning. What it says is" when any public servant........ is accused
of any offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty......
We have therefore first to concentrate on the
Now an offence seldom consists of a single
act. It is usually composed of several elements and, as a rule, a whole series
of acts must be proved before it can be 1187 established. In the present case,
the elements alleged against the second accused are, first, that there was an
"entrustment" and/or "dominion"; second, that the
entrustment and/or dominion was "in his capacity as a public
servant"; third, that there was a "disposal"; and fourth, that
the disposal was "dishonest". Now it is evident that the entrustment
and/ or dominion here were in an official capacity, and it is equally evident
that there could in this case be no disposal, lawful or otherwise, save by an
act done or purporting to be done in an official capacity.
Therefore, the act complained of, namely the
disposal, could not have been done in any other way. If it was innocent, it was
an official act; if dishonest, it was the dishonest doing of an official act,
but in either event the act was official because the second accused could not
dispose of the goods save by the doing of an official act, namely officially
permitting their disposal; and that he did. He actually permitted their release
and purported to do it in an official capacity, and apart from the fact that he
did not pretend to act privately, there was no other way in which he could have
done it. Therefore, whatever the intention or motive behind the act may have
been, the physical part of it remained unaltered, so if it was official in the
one case it was equally official in the other, and the only difference would
lie in the intention with which it was done: in the one event, it would be done
in the discharge of an official duty and in the other, in the purported
discharge of it.
The act of abetment alleged against him
stands on the same footing, for his part in the abetment was to permit the
disposal of the goods by the doing of an official act and thus "wilfully
suffer" another person to use them dishonestly: section 405 of the Indian
Penal Code. In both cases, the -'offence" in his case would be incomplete
without proving the official act.
We therefore hold that section 197 of the
Code of Criminal Procedure applies and that sanction was necessary, and as
there was none the trial is vitiated from the start. We therefore quash the
proceedings 152 1188 against the second accused as also his conviction and
We now turn to the appeal of the first
accused. He has been convicted under section 409 of the Indian Penal Code read
with section 34. The main point here concerns a vital misdirection in the
charge to the jury about section 34.
The learned Additional Sessions Judge
misunderstood the scope and content of this section and so misdirected the jury
about the law.
The section was expounded at length in
paragraphs 15 and 16 of the charge and though some of the illustrations given
are on the right lines, there is much there that is wrong and which, if acted
on, would cause a miscarriage of justice.
The essence of the misdirection consists in
his direction to the jury that even though a person "may not be present
when the offence is actually committed" and even if he remains
"behind the screen" he can be convicted under section 34 provided it
is proved that the offence was committed in furtherance of the common
intention. This is wrong, for it is the essence of the section that the person
must be physically present at the actual commission of the crime.
He need not be present in the actual room; he
can, for instance, stand guard by a gate outside ready to warn his companions
about any approach of danger or wait in a car on a nearby road ready to
facilitate their escape, but he must be physically present at the scene of the
occurrence and must actually participate in the commission of the offence in
some way or other at the time the crime is actually being committed. The
antithesis is between the preliminary stages, the agreement, the preparation,
the planning, which is covered by section 109, and the stage of commission when
the plans are put into effect and carried out. Section 34 is concerned with the
latter. It is true there must be some sort of preliminary planning which may or
may not be at the scene of the crime and which may have taken place long
beforehand, but there must be added to it the element of physical presence at
the scene of occurrence coupled with actual participation which, of 1189
course, can be of a passive character such as standing by a door, provided that
is done with the intention of assisting in furtherance of the common intention
of them all and there is a readiness to play his part in the pre-arranged plan
when the time comes for him to act.
The emphasis in section 34 is on the word
"done": "When a criminal act is done by several
persons.......... It is essential that they join in the actual doing of the act
and not merely in planning its perpetration. The section has been elaborately
explained by Lord Sumner in Barendra Kumar Ghosh v. The King-Emperor(1). At
page 52, he explains that "participation in action" is the leading
feature of section
34. And at page 53 in explaining section 114
of the Indian Penal Code, he says" Because participation de facto (as this
case shows) may sometimes be obscure in detail, it is established by the
presumption juris et de jure that actual presence plus prior abetment can mean
nothing else, but participation. The presumption raised by section 114 brings
the case within the ambit of section 34".
At page 55 he says about section 34 that"
participation and joint action in the actual commission of crime are, in
substance, matters which stand in antithesis to abetments or attempts".
The misdirection is plain and it goes to the
root of the matter because the jury returned a verdict of guilty under section
409 of the Indian Penal Code read with section 34 alone and not under section
409 read with section 109.
It is part of the defence of the first
accused that he was not present when the goods were loaded nor was be present
when they were allowed to pass out of the gates, that is to say, that he was
not present when the offence was committed.
It is true there is evidence to show that he
was there when the lorries left but apart from the fact that there is a small
discrepancy on the point, there is nothing to indicate that this evidence was
believed. If he was not present he (1) [1924) L.R. 52 I.A. 40.
1190 cannot be convicted with the aid of
section 34. He could have been convicted of the abetment had the jury returned
a verdict to that effect because there is evidence of abetment and the charge
about abetment is right in law. But the jury ignored the abetment part of the
charge and we have no means of knowing whether they believed this part of the
evidence or not.
There is also non-direction on an important
point which may have caused a miscarriage of justice. The case for the
prosecution is that the accused disposed of the goods to Mohsinbhai for a sum
of Rs. 4,000 which was duly paid to the second accused on the 10th. The learned
trial Judge told the jury that"the evidence led by the prosecution about
the payment of the Rs. 4,000 is proved to be utterly useless", and in
telling them why he gave them a number of reasons.
But he omitted to follow this up by telling
them that if they rejected this part of the prosecution case, as he invited
them to do, then the strongest part of the case against the accused collapsed
because officers. in the position of the accused do not commit illegal acts
like this and expose themselves to a prosecution and possible disgrace unless
they are prompted by some strong motive, usually self interest; and though a
conviction can be based on evidence which does not disclose a motive if the
facts proved justify such a course, yet it would ordinarily be unsafe to
convict in a case like the present in the absence of proof indicating an
adequate reason for criminal behavior on the part of the accused. Had the jury
been told this, as they should have been, it is possible they would not have
returned a verdict of guilty.
In the circumstances, we have no alternative
but to quash this conviction also.
We have now to consider whether there should
be a retrial.
As the present trial cannot proceed against
the second accused, and as all the accused are said to have acted in concert
each playing an appointed part in a common plan, we do not think it would be
right 1191 to direct a retrial though this is the normal course when a jury
trial is set aside on the grounds of misdirection and non-direction. We
therefore discharge (not acquit) both the appellants leaving it to Government
either to drop the entire matter or to proceed in such manner as it may be
advised. We do this because the accused expressly asked that the charge under
the Prevention of Corruption Act should be left over for a separate trial. The
two convictions are therefore quashed and also the sentences.
We are told that the first accused has
already served out his sentence. The fine if paid, will be refunded. The bail
bond of the second accused will be cancelled.