Bakhshish Singh Dhaliwal Vs. The State
of Punjab  INSC 149 (31 August 1966)
31/08/1966 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA RAMASWAMI, V.
CITATION: 1967 AIR 752 1967 SCR (1) 211
R 1983 SC 610 (8)
Criminal Procedure Code, ss. 233, 234, 197,
342-Joinder of trials and charges-Joint trial with Government official for
whose prosecution sanction not obtained-Validity of trialExamination of
accuseed-Each item of evidence whether need be put to accused.
Indian Penal Code, ss. 417, 420--Bills
submitted to Government-Dishonestly passed by Government officers-Payment
whether results from Submission of false bill-Offence whether under s. 417 or
s. 420 ? Ordinance 29 of 1943-Section 72 of Tenth Schedule to Government of
India Act, 1935-India and Burma (Emergency Provisions Act) 1940 (3 & 4 Geo.
6, Ch. 33), s. 1(3)-Punjab Ordinance III of 1946 S. 3, (3)Punjab Act X of
1950--Constitution, continuance and reconstitution of Special Tribunal.
Indian Evidence Act, 1872, s. 35-War Diaries
maintained by army officer--Whether admissible under section.
The appellant, a contractor was tried for
offenses under s. 420 Indian Penal Code in respect of false bills submitted by
him to the Evacuee Government of Burma located at Simla for work done during
World War 11, Ten charges were framed against the appellant and four trials
were held in respect of these charges. The appellant was convicted by the Special
Tribunal of all the ten charges but the High Court convicted him only in
respect of three. In appeals to this Court on certificate,
HELD: (i) It could not be said that by
sending twenty bills under one covering letter the appellant had made only one
representation. The claims related to a number of works or supplies of raw
materials. A representation in respect of each different work or each different
supply of materials would be a separate and distinct representation from the
one relating to another work carried out or supply made. The holding of four
trials in respect of the different representations was therefore in order. [215
H; 216 D] (ii) When one claim was made in respect of supplies to two places
there could be only one charge, in respect of that claim, and the trial of such
a charge with two other charges was therefore proper. [216 G] (iii) 'Me
officers who verified the bogus bills submitted by the appellant could
certainly be held guilty of abetting the appellant. But it could not be said that
the payments that were made to the appellant were not connected with or induced
by the representations made by the appellant himself or in his bills. In fact,
it were those representations by the appellant which ultimately culminated in
the Government of Burma parting with the money to satisfy those claims put
forward by the appellant. The finding that the appellant was guilty of cheating
in these circumstances was fully justified. [217 D-G] Mita Prasad v. Emperor,
(1920) 18 A.L.J. 371, distinguished.
212 (iv) In every case where property is
delivered by a person cheated. there must always be a stage when the person
maker up his mind to give the property on accepting the false representations
made to him, It cannot be said that in such cases the person committing the
offence can only be tried, for the simple offence of cheating under s. 417
I.P.C. and cannot be tried under s. 420 because the person cheated parted with
his property subsequent to making up his mind to do so. [218 B] (v) The joint
trial of the appellant with one of the officers who sanctioned his bills was
not vitiated by lack of sanction under s. 197 Cr. P.C. because an officer
abetting the offence of cheating by another cannot be said to be acting within
the scope of his duties as public servant. [219 D] K. Satwant Singh V. State of
Punjab  2 S.C.R. 89, relied oil.
Sunil Kumar Paul v. State of West Bengal,
A.I.R. 1965 S.C. 706, distinguished.
No, de novo trial was necessary after the
separation of the appellant's trial from that of the said officer. So, far as
the appellant was concerned the entire trial took place while he was present
and the fact that the officer was jointly tried with him for some time did not
in any way affect the appellant. [219 G] (vi) Ordinance 29 of 1943 under which
the Special Tribunal was constituted did not expire within six months of being
issued. It was not affected by the provision to that effect contained in s. 72
of the Ninth Schedule to the Government of India Act, 1935 because the
operation of s. 72 was suspended by s. 1(3) of the India and Burma (Emergency
Provisions) Act, 1940. The Ordinance expired, as held in J.K. Gas Plant
Manufacturing Co. (Rampur) Ltd. and Ors. v. The King Emperor, on 30-9-1946.
Thereafter the Tribunal functioned competently under the Punjab Ordinance III
of 1946 and Punjab Act X of 1950., [220 D, E] (vii) Under sub-s. (3) of s. 3 of
Punjab Ordinance III all notifications issued, and all rules made, by the
Central Government under s. 3 sub-s. (3) of s. 4 and s. 11 of the Ordinance of
1943, so far as they applied to Tribunals, were to continue in force until
superseded or modified by the Punjab Government under the Punjab Ordinance.
Consequently, notifications issued by the Central Government under s. 3 of the
Ordinance of 1943 constitutingthe Special Tribunal could be superseded or
modified by the Punjab Government.
When the Punjab Government appointed two
members in place of the two original members appointed by the Central
Government, the former only exercised the powers of modifying the notification
issued by the Central Government as the order of appointment amounted to
reconstitution of the Tribunal already constituted by the Central Government.
During the period when there was only one
member and the requirement of law was that the Tribunal should consist of three
members, no proceedings were taken by the Tribunal for continuing the trial of
the appellant. It was only after the appointment of two other members,
including the President, that the Tribunal took up the trial. Further when the
Tribunal later on functioned with one single member, the law had already been
altered by Punjab Act X of 1950 which laid down that the Tribunal was to
consist of one member only. The Tribunal thus at each stage was properly
constituted and functional competently. [221G-222C] (viii) The War Diaries
which had been used in evidence were records of official acts and in fact there
was specific evidence of witnesses that 21 3 these were required to be
maintained under the rules applicable to the units of the army which maintained
these diaries. The diaries were therefore admissible under s. 35 of the
Evidence Act as records of official acts and there was no error in admitting
them in evidence.
It was not necessary to put the War Diaries
specially to the accused in his examination under s. 342 Cr. P.C. because that
section requires circumstances appearing in evidence against the accused and
not every piece of evidence in proof of those circumstances to be put to the
accused. [224 F; 225 C-E]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal Nos. 150 and 151, 196 to 199 of 1962.
Appeals from the judgment and order dated
March 21, 1962 of the Punjab High Court in Criminal Appeals Nos. 478 and 479,
and 41, 176, 478 and 479 of 1949 respectively.
Hira Lal Sibal, J. C. Talwar and R. L. Kohli,
for the appellant (in Cr. As No,,. 150 and 151 of 1962) and the respondent (in
Cr. As. Nos. 196 to 199 of 1962).
Purshottam Tricumdas, K. C. Chawla, and R. N.
Sachthey, for the respondent (in Cr. As. Nos. 150 and 151 of 1962) and the
appellant (in Cr. As. Nos. 196 to 199 of 1962).
The Judgment of the Court was delivered by
Bhargava, J. These six appeals, filed on the basis of certificates granted by
the High Court of Punjab, arise out of a single judgment of that Court, and
consequently, they have been heard together. Two of the appeals Nos. 150 &
151 of 1962 have been brought up by Bakhshish Singh Dhaliwal (hereinafter
referred to as "the appellant") against his convictions on three
different charges of cheating under s. 420 of the Indian Penal Code which were
upheld by the High Court. The remaining four appeals Nos. 196-199 of 1962 have
been filed by the State of Punjab against the acquittal of the appellant in
respect of offenses of cheating on some other counts recorded by the High
There were all together four trials before a
Special Tribunal originally constituted under Ordinance 29 of 1943.
In these four trials, the appellant was
charged for having committed ten different offences of cheating by making
representations to the Government of Burma and obtaining payments of money to
the extent of over Rs. 6 lakhs which included payments in respect of works
which had not been carried out by him as a contractor, though he claimed that
the work had been done and he was entitled to payment in respect of those
The facts which are relevant for the decision
of these appeals fall under a very short compass. In the year 1942, the
Government of Burma and the Allied Forces operating there were compelled to leave
Burma as a result of the Japanese invasion. For purposes 214 of evacuation from
Burma and the defence of that country, the Government of Burma and the army had
to execute certain works of the nature of 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 itself, while others were entrusted to contractors.
After the evacuation, the Government of Burma
was located at Simla. Due to the disturbed conditions, no exact records were
,available of the works done by the various contractors and consequently, in
August 1942, the Government of Burma issued ail advertisement inviting claims
from contractors who had executed works or had supplied materials in Burma
during this period and had not yet been paid.
The appellant submitted a number of claims in
respect of various works which he claimed had been executed by him as well as
for supply of materials. These claims were in the form of bills and were in
respect of works which he claimed had been carried out under the instructions
of various units of the army. These bills were sent for verification to three
different Officers, Henderson, Nasse and Karam 'Singh;
and after -their verification, payments were
made to the appellant in respect of those bills. In one or two cases, the
payments were only partial; while in other cases the entire claims as
recommended by those officers were paid off.
In the case of the appellant, it was found
that he had put in 20 claims for various works alleged to have been done or
materials supplied. Sixteen of these claims aggregated to an amount of Rs.
16,31,808/ out of which a sum of Rs.
6,87,173/ was paid by means of cheques issued
by the office of the Controller of Military Accounts working with the Burma
Government situated at Kohlapore.
Subsequently, suspicions of the Government of
Burma were aroused concerning many of the claims made by various contractors
including the claims made by the appellant, and it was discovered that some of
the claims were false and bogus. Consequently, further investigations were made
and thereafter the appellant was prosecuted in respect of ten different
charges. Since there were a number of such cases to be tried, Special Tribunals
were constituted by issuing Ordinance No. 29 of 1943; and two of these
Tribunals were located at Lahore. The cases against the appellant were
entrusted to one of these Tribunals.
Before the Tribunal, the ten charges against
the appellant were given Cases Nos. 21 to 26 and 31 to 34. Some of these cases
were, however, tried together with the result that ultimately, there were four
trials in which the appellant was tried in respect of these ten ,charges. The
Special Tribunal convicted the appellant in respect of -all the charges; but on
appeal, the High Court upheld the conviction 215 in respect of three charges
only. These charges were part of charge No. 21, charge No. 22 and charge No.
26. In respect of the other charges, the High Court recorded a finding that the
prosecution had failed to prove beyond all reasonable doubt that the claims put
forward by the appellant were bogus and in respect of works not done by him or
materials not supplied by him, so that the appellant was given the benefit of
doubt and acquitted.
The appellant was tried for charges Nos. 21,
22 and 23 in the one single trial by the Special Tribunal, while charge No. 26
was the subject-matter of a different trial. His conviction in respect of part
of charge No. 21, charge No. 22 and charge No. 26 having been upheld by the
High Court, the appellant has thus filed two appeals Nos. 150 & 151/1962 in
this Court. He was acquitted of part of charge No. 21 and charge No. 23 which
were tried together with charge No. 22 in one trial; and similarly, he has been
acquitted of other charges also in the other three trials. The four State
appeals before us are against these orders of acquittal recorded by the High
Court in respect of the charges which were the subject-matter of four different
A number of points of law have been argued
before us on behalf of the appellant in the two appeals filed by him.
The first point which was very strenuously
pressed was that the appellant had been very seriously prejudiced by having
been tried in four different cases in respect of ten different charges when, in
fact, all that he did was to submit a set of bills together and had not made
any ten different false representations which might have induced the Burma
Government to make payments to him. Our attention was invited to letter Ext. DR
dated 3rd November, 1942, to support the contention that all the claims put
forward by the appellant were submitted with this letter together and
consequently, should be held to form one single representation.
On behalf of the State, our attention was,
however, drawn to the fact that this letter was found to contain obliteration
of the figure before the word "claims", so that this letter really
referred to only out of the 20 claims submitted by the appellant; and this
submission is further supported by a reference to letter Ext. DS in which the
Government acknowledged receipt of only 2 claims when referring to letter Ext.
DR sent by the appellant. The case of the State was that the various bills
containing the 20 claims put forward by the appellant could not be treated as
one single representation.
It appears to us that even if it had been a
fact that all these claims were submitted by the appellant with only one single
covering letter, it could not be held that they amounted to one single false
representation. The claims related to a number of works or supplies of
materials which the appellant claimed he had carried out. A representation in
respect of each different work or each 216 different supply of materials would
be a separate and distinct representation from the one relating to another work
carried out or supply made. Thus, in one trial which covered charges 21, 22 and
23, three different charges were framed by the Tribunal. The first charge
related to conversion of railway track between Taungdwingyi and Kyaukpadaung as
well as supply of materials at those places.
The second charge which related to charge No.
22 was in respect of work claimed to have been done in connection with the
improvement of a country track from Moth it northwards to its junction with the
main trunk road between Kyaukapadaung and Meiktila, while the third charge
relating to charge No. 23 was in respect of materials claimed to have been
supplied at Allegheny. The three charges thus framed related to works or
supplies at three different places and were in respect of three claims each of
which was totally independent of the other. In respect of each of these
charges, claims had been submitted by the appellant and those claims amounted to
representations made by him that he had carried out those works or had made
There was consequently no error at all in
holding that in this trial the appellant was being tried for three different
offences of the same kind, so that the splitting of the cases into ten
different charges was fully justified.
Mr. R. L. Anand on behalf of the appellant,
in these circumstances, challenged before us the validity of the case in which
the appellant was tried for charges 21, 22 and 23, on a different ground which
had not been put forward before the High Court. He urged that an examination of
the claim put forward by the appellant on the basis of which charges 21 and 23
were taken up, would show that there were in fact three different claims by the
appellant; and since these were tried together with charge No. 22 which had a
separate claim, the trial was vitiated as being in respect of four charges of
the same kind which is not permissible in law.
The submission fails, because it is clear
from the claim itself that charge No. 21 was really one single charge and not
two charges. It was based on a claim made by the appellant for work done and
materials supplied at the same places, viz., Taungdwingyi and Kyaukpadaung. The
courts below in holding that the representation made by the appellant in his
claim in respect of work done and materials supplied at the same places
amounted to one single representation, were quite correct, so that, in fact, in
this trial the appellant was tried in respect of only three charges on the
basis of three false representations relating to three items of bogus works or
supplies. None of the trials against the appellant was, therefore, vitiated by
any error relating to mis joinder of charges or splitting up of charges.
The next question of law raised was that even
on the facts found by the High Court, the appellant was wrongly convicted as no
offence of cheating had been made out against him.
This submission was based on the circumstance
that after the claims, 21 7 which had been found bogus, were put forward by the
appellant, they were sent for verification to various officers and payments
were sanctioned and made to the appellant on the basis of the reports which
were submitted by those officers verifying the claims of the appellant.
The submission was that the payments were the
result not of any representations made by the appellant, but of the wrong
representations contained in the reports of those officers, so that if any
offence of cheating at all was committed, it was by those officers and not by
The fallacy in this argument is quite clear.
It is correct that payments were sanctioned by the Burma Government and were
made only after reports had been obtained from their own officers on the claims
which had been put forward by the appellant; but the payments were after all
made only because the appellant had submitted those claims in the first
instance. The representations made by the appellant in the written claims
contained in the bills were the basis of all subsequent proceedings which
resulted in payments being made to him. These representations contained bogus
claims and orders for payment were based on those very claims. The officers who
verified the claims wrongly could certainly be held guilty of abetting the
appellant by supporting his false representations, It cannot be said that the
payments that were made to the appellant were not connected with or induced by
the representations made by the appellant himself in his bills. In fact,
primarily, it were those representations by the appellant which ultimately
culminated in the Government of Burma parting with the money to satisfy those
claims put forward by the appellant. The correctness of the decision in Mata
Prasad v. Emperor(1) relied upon by learned counsel for the appellant need not
detain us, because the facts in that case were different and Mata Prasad was
found not guilty because he himself had made no representation at all which
induced the payment of money by the complainant, and the finding was that the
advance of money was induced entirely by the representation made by Hira La].
The finding that the appellant was guilty of cheating in these circumstances
was fully justified.
In this connection, another point put forward
was that the appellant should have been convicted for the offence under s. 417,
Indian Penal Code, instead of s. 420, I.P.C., because, as soon as written
orders were made sanctioning payments in respect of the bogus claims, offences
417 were complete, and the subsequent
payments made should not have been taken into account. The submission has to be
rejected, because the subsequent payments after the orders sanctioning the
bills, were a part of the same transaction which started with the false
representations being made by the (1) (1920) 18 . L. J. 371.
M14 Sup. C1/66-15 218 appellant in putting
forward bogus claims and which transaction only concluded after the payments
were made and did not come to an end merely on orders of sanction being passed
in those proceedings. In fact, in every case where property is delivered by a
person cheated, there must always be a stage when the person makes up his mind
to give the property on accepting the false representations made to him.
It cannot be said that in such cases the
person committing the offence can only be tried for the simple offence of
cheating under section 417, I.P.C.,and cannot be tried under s. 420 because the
person cheated parts with his property subsequent to making up his mind to do
so. The conviction of the appellant for the offence under s. 420, 1.p.C., in
these circumstances Is in no way vitiated.
The liability of the appellant for conviction
for the offence of cheating was challenged on one other ground. It was urged
that the appellant left Burma on 5th April, 1942, while the claims which had
been found to be bogus related, at least to a considerable extent, to works
alleged to have been done or materials alleged to have been supplied after that
date, so that the appellant could have no personal knowledge that the claims
put forward by him were bogus.
The finding of fact recorded by the High
Court in respect of the charges for which the appellant has been convicted is
that the works to which the claims related were not carried out at all, or that
the supplies concerned were never made.
Once the finding is categorically recorded in
this manner, we do not think there was any burden placed on the prosecution to
establish that the appellant had personal knowledge of the bogus nature of his
claims. Knowledge involves the state of mind of the appellant and no direct
evidence of that knowledge could possibly be given by the prosecution. The very
fact that the claims were bogus and did not accord with the true facts, leads
to the inference that the appellant knew that the representations which he was
making in these claims were false. It is significant that the appellant has not
come forward with any explanation that he made these claims on the basis of
information given to him by any particular person whose word he had no reason
to doubt. In fact, the claims purported to be based on the facts that the
appellant knew that he was entitled to the amounts included in the claims
because he had carried out the works or had supplied the materials relating to
The next point urged was that in this case
the trial of the appellant was vitiated, because up to a certain stage he was
tried together with Henderson who was charged with the offence of abetment of
,cheating under s. 420 read with s. 109, Indian Penal Code, and Henderson was
put to trial without any sanction of the Central Government under s. 197 of the
Code of Criminal Procedure.
There are two reasons why this ground has no
force. First it has already been held by this Court in a very similar case of
K. 219 Satwant Singh v. The State of Punjab(1) that sanction under s. 197 of
the Code of Criminal Procedure was not required for a valid trial of Henderson
for the offence of abetment of cheating, because it cannot be held that a
public servant committing such an offence is acting in the discharge of his
duties as such. In this connection, learned counsel referred us to a subsequent
decision of this Court in Sunil Kumar Paul v. The State of West Bengal(2) where
this Court held, in the case of a government servant who had submitted a false
bill, that the act of false representation which resulted in the offence of
cheating being completed, was done in the course of his official duties by that
government servant. The facts of that case, however, were different, because in
that case it was held that the submission of the bill by the government servant
was itself the act for which he was to be prosecuted, and that act was held to
have been done by him in the discharge of his duties. In the case before us, as
well as in the earlier case of Satwant Singh(1), Henderson was not being
prosecuted for the act of certification of the correctness of the bills which
were sent to him for verification, but was to be prosecuted for abetment of the
offence of cheating committed by those persons who had submitted the bills by
falsely certifying the correctness of those bills. The act of thus abetting the
principal offenders could not possibly be, held to have been done in the
discharge of official duties as a public servant.
The second reason is that after the trials
against the appellant had proceeded to some extent, the case against Henderson
was separated and the appellant was tried alone in ill the four cases. The
appellant was not a government servant, but only an independent contractor, and
in his case, therefore, there was no question of any sanction of the Central
Government being obtained under s. 197 of the Code of Criminal Procedure. His
trials would, therefore be unaffected by the want of sanction of the Central
Government for the prosecution of Henderson.
In this connection, it was also urged that
after Henderson's case was separated from that of the appellant, there should
have been a de novo trial. No reasons could, however, be advanced by the
learned counsel in support of this proposition. So far as the appellant is
concerned, the entire trial took place while he was present and the case
against him remained unaffected by the fact that during part of the trial,
Henderson was also being tried with him for abetting the offence alleged to
have been committed by him, whereas during the remaining part of the trial, he
was being tried alone for the offence with which he was charged.
There is further the circumstances that no
request was made for a de novo trial at any stage by the appellant, and even in
the appeals before the High Court, no grievance was put forward in this behalf.
(1)  2 S. C. R. 89.
(2) A. 1. R. 1965 S. C. 706.
220 The validity of the trials was also
challenged before us on the ground that the Special Tribunal which recorded the
convictions of the appellant was not constituted in accordance with law and was
incompetent to hold the trials.
The main submission before us, which was
different from the aspect in which it was argued before the High Court, was
based on the fact that the Special Tribunal was constituted under Ordinance No.
29 of 1943 which was issued not under S.
102 of the Government of India, Act, 1935,
but under s. 72 of the Ninth Schedule of that Act. It was urged that s. 72 of
the Government of India Act itself laid down that an Ordinance issued under
that provision was to remain in force for the space of not more than six months
from its promulgation. Learned counsel on this basis urged that the subsequent
Ordinances issued in 1944 and 1945 amending this Ordinance as well as the
Punjab Ordinance III of 1946 which continued the fife of the Special Tribunal
were all ineffective, because they purported to continue the existence of a
Tribunal which had already become defunct on the expiry of six months from 9th
September, 1943, the date on which Ordinance No. 29/1943 was promulgated. The
submission was obviously made under a misapprehension ignoring the effect of s.
1(3) of the India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6,
ch. 33) which suspended the operation of the clause in s. 72 of the Ninth
Schedule of the Government of India Act, 1935 under which the life of the
Ordinance was limited to six months from its promulgation. In fact, this point
came up before the Federal Court in J. K. Gas Plant Manufacturing Co. (Rampur)
Ltd. & Ors. v. The King Emperor(1) where the Federal Court held that this
very Ordinance 29/1943 expired on 30th September, 1946 in view of the
provisions of S. 1(3) of the India & Burma (Emergency Provisions) Act,
Until 30-9-1946, therefore, the Tribunal
constituted by the Central Government under that Ordinance was functioning
The Punjab Ordinance III of 1946 continuing
the powers of that Tribunal for the purpose of trying the cases pending before
it, came into force on the 1st October, 1946, so that there was no interval and
the Tribunal already functioning under the earlier Ordinance 29 of 1943
continued to function validly in accordance with the provisions of the Punjab
Ordinance III of 1946. This Ordinance was subsequently replaced by Punjab Act X
of 1950, whereby the life of the Tribunal and its powers were continued, though
the membership of the Tribunal was reduced from three to one. The Special
Tribunal which tried the cases against the appellant, therefore, functioned
throughout in accordance with the various Ordinances and the Punjab Act without
any interruption In the alternative, the constitution of the Tribunal which
recorded the convictions of the appellant was challenged on one other ground,
viz., that at one stage, the membership of the Tribunal, which (1)  P. R.
221 under the law was required to consist of
three members, was reduced to only one member and the subsequent appointment of
the other two members was made by the Punjab Government which had no authority
or power vested in it to make such appointment. Under Ordinance No. 29 of 1943,
the power of constituting the Special Tribunal was vested in the Central
Government, and the Central Government actually appointed a Tribunal consisting
of three members. That Tribunal continued until 30th September 1946 and
thereafter, it functioned by virtue of the provisions of Punjab Ordinance III
of 1946. It appears that subsequently some time in the year 1947, one of the
members died and the President of the Tribunal ceased to function on his
departure from India.
Thereafter, two fresh members were appointed
by the Punjab Government to the Tribunal and one of them was appointed to
function as the President of the Tribunal. The point urged on behalf of the
appellant was that under Punjab Ordinance III of 1946, the Government of Punjab
did acquire the power of appointing the President, but that Ordinance did not
confer on the Punjab Government the power to reconstitute the Tribunal or to
appoint members of the Tribunal. This submission was based on the provisions of
s. 3(2) of the Punjab Ordinance which laid down that the provisions of the
Ordinance of 1943 were to continue in force and to apply in relation to the
Tribunals, except sub s. (2) of section 1 and sub-s. (1) of section 5, subject
to the modification that the powers of the Central Government under clause (b)
of section 3, sub-s. (3) of section 4 and section II were, as from the
commencement of the Punjab Ordinance, to be powers of the Provincial
Government. The power of constituting the Tribunal was contained in the
principal clause of s. 3 of the Ordinance of 1943, and there was no mention of
this principal clause where, by modification, the powers of the Central Government
were to be exercised by the Punjab Government under s. 3(2) of the Punjab
This submission, however, ignores the effect
of sub-s. (3) of s. 3 of the Punjab Ordinance, under which all notifications
issued, and all rules made, by the Central Government under s. 3, sub-s. (3) of
s. 4 and s. 11 of the Ordinance of 1943, so far as they applied to the
Tribunals, were to continue in force until superseded or modified by the Punjab
Government under the Punjab Ordinance. This provision, thus, clearly laid down
that the Punjab Government had the power to supersede or modify notifications
issued and rules made by the Central Government under s. 3, sub-s. (3) of s. 4
and s. 11.
Consequently, notifications issued by the
Central Government under s. 3 of the Ordinance of 1943 constituting the Special
Tribunal could be superseded or modified by the Punjab Government. When the
Punjab Government appointed two members in place of the two original members
appointed by the Central Government, the former only exercised the powers of
modifying the notification issued by the Central Government as the order of
appointment amounted to reconstitution of the Tribunal already constituted by
the Central Government. The order of the Punjab Government was, therefore,
passed within the scope of the powers conferred on it by sub-s. (3) of s. 3 of
the Punjab Ordinance. During the period when there was only one member and the
requirement under the law was that the Tribunal should consist of three
members, no proceedings were taken by the Tribunal for continuing the trial of
the appellant. It was only after the appointment of two other members,
including the President, that the Tribunal took up the trial. Further when the
Tribunal later on functioned with only one single member, the law had already
been altered by Punjab Act X of 1950 which provided for change of composition
of the Special Tribunal and laid down that instead of three members, the
Tribunal was to be composed of one member only. The tribunal, thus, at each
stage, was properly constituted and functioned competently.
The next point urged on behalf of the
appellant was that in these trials, the appellant was not given an adequate
opportunity to produce his defence evidence, and this happened for no fault of
the appellant. Reference in this connection was made to witnesses who were in
three different countries. Some witnesses were in Pakistan, some in England,
and some in Burma. So far as witnesses in Pakistan are concerned, the Tribunal
recorded an order on 6th April 1949, refusing to examine those witnesses,
because the Pakistan Government was not prepared to even effect service of
summons on persons residing there when the summons were issued by courts in
India. It is significant that subsequent to this order by the Tribunal, the
case came before a Bench of the Punjab High Court and at that stage no
grievance was made about non-examination of these witnesses from Pakistan, even
though a grievance was put forward in respect of witnesses in England and in
Burma. The Bench dealt with the case on 25th September, 1951 and granted the
prayer of the appellant for examination of witnesses in England and Burma. It
is now too late for the appellant to make a fresh grievance in this Court that
the witnesses in Pakistan were not examined.
With regard to witnesses in England and
Burma, an order was actually made by the Bench of the High Court directing the
Tribunal to take steps for their examination. Steps were taken and three
witnesses in England were examined on commission at the instance of the
appellant. The others were given up as they were not available. There has,
therefore, been no failure to examine witnesses in England.
Learned counsel for the appellant strenuously
pressed before us that the real prejudice to the appellant took place because
of want of examination of the witnesses who were in Burma. Their examination
was refused by the Tribunal at one stage and against 2 2 3 that refusal, the
appellant moved the High Court. As we have said earlier, a Bench of the High
Court on the 25th September, 1951, directed steps to be taken by the Tribunal
for their examination. Subsequently, difficulties arose and from time to time
the appellant approached the High Court and various orders were made up to the
year 1954. In the year 1954, commissions were actually issued for examination
of witnesses in Burma to District Magistrates of two places who were, by common
consent of parties, chosen as the persons before whom those witnesses could be
conveniently examined. The appellant was given a sum of Rs. 3,0001in order to
proceed to Burma and have the commissions executed in his own presence. The
grievance is that this sum ",as never actually paid and further that in
any case, adequate funds were Dot provided for the appellant to enable him to
proceed to Burma in time by air and be present on the dates fixed for execution
of the commissions.
This point came up for a scrutiny before the
High Court and a Bench of the High Court on 23rd August, 1954, held that a sum
of Rs. 3,0001had already been paid to the appellant for this purpose, and that
there were no further funds available from which additional payments could be
made to the appellant as desired by him. Certain properties and funds belonging
to the appellant were attached under Ordinance 38 of 1944 which laid down ins.
9 that the District Judge was to provide, from the attached property in which
the applicant claimed an interest, such sums as may be reasonably necessary for
the maintenance of the applicant and his family, and for expenses connected
with the defence of the applicant where criminal proceedings may have been
instituted against him in any Court for a scheduled offence.
Our attention has been drawn to the order of
the District Judge by which he directed payment of Rs. 3,000/for expenses in
connection with the examination of witnesses in Burma and by which he further
directed payments ill respect of maintenance, etc. the result of which was that
all the funds attached under Ordinance 38/1944 were completely exhausted. The
High Court also in its order dated 23rd August, 1954, found that the funds had
already been exhausted and no further money was available to be paid to the
appellant as desired by him. It cannot, therefore, be held that there was any
refusal on the part of the authorities to provide funds to which the appellant
was entitled. In any case, it appears to us that all this grievance about
non-provision of funds is immaterial in view of tile fact that the appellant
himself ultimately withdrew his request for the examination of those witnesses
It appears that in order to enable the
appellant to go to Burma, a passport was obtained for him; but the validity of
the passport expired some time before the date for execution of the commission
was fixed. Consequently, the passport was sent to the appropriate authorities
for further extending its validity. The High Court was specifically mentioned
in its judgment under appeal that, before 224 this passport could be renewed,
the appellant withdrew his request to the High Court to have the Burma
witnesses examined on commission. It will thus appear that all necessary steps
for examination of the Burma witnesses were being taken when the appellant of
his own accord withdrew his request for their examination, so that there has
been no denial of the right of the accused to produce the defence which he
The Judgment of the High Court upholding the
conviction of the appellant was also challenged on the ground that Court based
its findings on certain War Diaries which were inadmissible in evidence. The
War Diaries which have been referred to in connection with the charges for
which the appellant has been convicted are those of 6, Bombay Pioneers and
Chief Engineer, Burcorps, the latter having been referred to as C.E.s diaries
and with these diaries, it appears, were incorporated the C.R.E. War Diaries of
Burcorps also. The submission before us was that all the ingredients necessary
for showing that these War Diaries were admissible in evidence under S. 35 of
the Indian Evidence Act were not established by the prosecution.
The first aspect put forward was that these
War Diaries were not public documents; they were confidential and were not open
to public; and in this connection, reliance was placed on some remarks of the
House of Lords in Maria Mangini Sturla and Others V. Filippo Tomasso Matta
Freccia, Augustus Keppel Stavenson &. Others(1) It appears to us that for
the interpretation of S. 35 of the Evidence Act, this decision on common law in
England cannot be of much help, because under S. 35 of the said Act, the
documents admissible are not only public documents, but also record of official
There can be no doubt that these War Diaries,
which have been used as evidence were records of official acts and in fact
there is specific evidence of witnesses that these were required to be
maintained under the rules applicable to the units of the army which maintained
It was also urged that the prosecution had
not given specific evidence to show that the persons who were maintaining these
diaries were public servants. This objection, sought to be raised for the first
time before us, involves a mixed question of fact and law. The diaries were
maintained by officers of the army and at no earlier stage was any objection
put forward that they were not servants of the Indian Government as they
belonged to units which were not parts of the Indian Army. The case proceeded
in the lower courts on the basis that these units in which these diaries were
maintained were parts of the Indian Army and in fact, it was on this very basis
that an earlier objection dealt with by us was raised on behalf of (1)
(1879-80) 5 I. A. 623.
225 the appellant that sanction of the
Central Government was required for the prosecution of Henderson. We cannot,
therefore, at this stage go into the question of fact whether the prosecution
led evidence to show that the officers maintaining these diaries were in
service of the Government of India. The diaries were further proved by the
evidence of the persons who wrote them and of the persons who dictated the
entries recorded in them. There was, therefore, no error in admitting these
diaries in evidence.
It was also submitted that these War Diaries
were not put to the accused when he was examined under s. 342 of the Code of
Criminal Procedure and consequently, their use to the prejudice of the appellant
to record findings against him was not justified. This submission is clearly
based on a misapprehension of the scope of s. 342, Cr. P.C. Under that
provisions, question are put to an accused to enable him to explain any
circumstances appearing in the evidence against him, and for that purpose, the
accused is also to be questioned generally on the case, after the witnesses for
the prosecution have been examined and before he is called on for his defence.
These War Diaries were not circumstances appearing in evidence against the
They were, in fact, evidence of circumstances
which were put to the accused when he was examined under s. 342, Cr. P.C.
It was not at all necessary that each
separate piece of evidence in support of a circumstance should be put to the
accused and he should be questioned in respect of it under that section; and
consequently, the High Court committed no irregularity at all in treating these
War Diaries as part of the evidence against the appellant.
The last point urged by the learned counsel
before us related to the question of sentence, The sentence of substantive
imprisonment awarded by the Tribunal has already been very substantially
reduced by the High Court and we are unable to find any justification for
interference with it.
However, our attention was drawn to the fact
that the High Court, while fixing the amount of compulsory fine in respect of
charge No. 21, committed an obvious error. The finding recorded by the High
Court was that under this charge, the claim was bogus in respect of four
amounts, viz., Rs. 38,000/-, Rs. 44,000/-, Rs. 8,800/and Rs. 17,600/relating to
four different items in respect of this work.
The fictitious claims thus totaled Rs.
1,08,400/-. The High Court proceeded on the basis that this was the amount paid
to the appellant in respect of this bogus claim and overlooked the fact that in
respect of the claim which was the subject-matter of charge No. 21, payment had
actually been made only to the extent of 50 per cent of the claim verified.
Thus, in respect of this work which was found to be bogus, the payment was to
the extent of Rs. 54,200/only and not to the extent of Rs. 1,08,400/-. The
compulsory fine imposed in respect of this charge must, therefore, be reduced
from Rs. 1,08,400/to Rs. 54,200/-.
226 So far as the four State appeals are
concerned, learned counsel appearing on behalf of the State of Punjab has not
been able to show' to us that any error of law has been committed by the High
Court when recording findings of fact holding that the prosecution had failed
to prove beyond all reasonable doubt that the claims paid to the appellant were
bogus. The findings of fact recorded by the High Court do not, therefore, call
for any interference by this Court.
In the result, all the appeals are dismissed,
subject to the modification that the compulsory fine imposed on the appellant
in respect of charge No. 21 which was the subject matter of Criminal Appeal No.
478 of 1949 in the High Court is reduced from Rs. 1,08,400/to Rs. 54,200/-.
G. C. Appeals dismissed.
M14 Sup C1/66-2.500-13-3-67-GIPP.