L.D. Healy Vs. State of Uttar Pradesh
[1968] INSC 299 (27 November 1968)
27/11/1968
ACT:
Prevention of Corruption Act 1947 s.
6(c)-Prosecution of the Railway employee for offences under s. 161 I.P.C. and
s.
5(1)(d) read with s. 5(2)-Sanction for
prosecution at first obtained from Deputy Chief Commercial Superintendent-
Proceedings quashed at Public Prosecutor's request- Thereafter fresh sanction
for prosecution obtained from Chief Commercial Superintendent and fresh
proceedings commenced-If quashing of first proceeding amounted to acquittal and
therefore conviction invalid.
Section 5A(1)(d)-Offences investigated by
officer below the rank of Deputy Superintendent of Police by order of
Additional District Magistrate-If investigation valid-S. 356 ss. 356(1) and 537
Criminal Procedure Code Witnesses recording evidence in presence of one Judge
who died-Second Judge subscribing signatures to record of evidence- Whether
such non-compliance with s. 356(1) vitiated trial or mere irregularity curable
under s. 537.
HEADNOTE:
The appellant, who was a Platform Inspector
employed by the North Eastern Railway was prosecuted for offences under s. 161
I.P.C. and s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act,
1947 for accepting a bribe from another subordinate railway employee. The
prosecution was commenced after obtaining the sanction of the Deputy Chief
Commercial Superintendent but it was discovered during the trial that this
officer was not competent to sanction the appellant's prosecution. The trial
Judge, at the request of the Public Prosecutor, quashed the proceedings.
Thereafter. sanction was obtained from the
Chief Commercial Superintendent and in fresh proceedings for the same offences,
the appellant was convicted and the order of conviction was confirmed in appeal
by the High Court.
In appeal to this Court it was contended on
behalf of the appellant: (i) that in view of the provisions of cl. (i) of r.
1704 of the Indian Railway Establishment Code, the Deputy Chief Commercial
Superintendent had the power to remove the appellant from service, and was
competent to grant sanction under s. 6(c) of the Prevention of Corruption Act
for his prosecution; the sanction given by the Deputy Chief Commercial
Superintendent for prosecuting the appellant was therefore valid and the order
passed by the Special Judge quashing the proceeding amounted in law to an order
of acquittal so that the appellant could not again be tried for the same
offence; (ii) that in relation to the evidence of two witnesses for the prosecution,
the provisions of s. 356 Cr. P.C. had not been complied with in that, the
evidence of these witnesses was recorded in the presence of one trial Judge and
the record of the evidence had been signed by his successor in office, after
the death of the former; and (iii) that the investigation was made by an
officer who. in view of the provisions of s. 5A(1)(d) of the Prevention of
Corruption Act, 1947 had no authority to investigate the offence as he was a
Police Officer below the rank of a Deputy Superintendent of Police.
949
HELD: Dismissing the appeal, (i) The powers
exercisable under r. 1704 (i) being subject to cl. (c) of r. 1705 of the Indian
Railway Establishment Code and also to the provisions of Art. 311 of the
Constitution in the present case the Deputy Chief Commercial Superintendent
could not remove the appellant from service and, therefore had no power to
sanction his prosecution. the trial judge who had taken cognizance of the case
on a sanction given by the Deputy Chief Commercial Superintendent was
incompetent to try the case, and an order of acquittal passed by a court which
had no jurisdiction did not bar a retrial for the same offence.
[952 C-E] (ii) There was irregularity in
maintaining the record of the evidence at the trial because the evidence was
recorded before one Judge and another Judge. subscribed his signature to the
record of that evidence, and on that account there was non-compliance with the
provisions of s. 356(1) Cr.P.C., but this was an irregularity curable under s. 537
Cr.P.C.
and did not vitiate the trial. [955 B. E] The
object of the provisions in the Code relating to the recording of evidence is
to ensure that a correct record is maintained of what is said in court by
witnesses, and the record may be available at a later stage of the trial and in
appeal. If the court is satisfied that in a given case the record
notwithstanding any departure from the provisions relating to maintenance of
the record is correct the irregularity may be ignored if no injustice has resulted
there from. [954 D] Liverpool Borough Bank v. Turner, [1861], 30 L.J. Ch. 379,
referred to.
Abdul Rahman v. King Emperor, L.R. 54 I.A.
96, distinguished.
(iii) By s. 5A(1)(d) the legislature has
expressly provided that an officer below the rank of a Deputy Superintendent of
Police may conduct the investigation with the order of a Presidency Magistrate
or a Magistrate of the First Class. In the present case such are order of the
Additional District Magistrate who held the office of a First Class Magistrate
was obtained and there was compliance with the provisions of s. 5A(1)(d). [957
H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.138 of 1966.
Appeal by special leave from the judgment and
order dated March 22, 1966 of the Allahabad High Court, Lucknow Bench in
Criminal Appeal No. 82 of 1965.
S.P. Sinha and M. I. Khowaja, for the
appellant.
O.P. Rana, for the respondent.
The Judgment of the Court was delivered by
Shah, J. The appellant Healy was an employee of the NorthEastern Railway and
was posted in March 1959 as a platform Inspector at Gorakhpur Railway Station.
The appellant told Ghammoo a sweeper working under him that unless he was paid
a bribe of Rs. 15 Ghammoo would be marked absent. Ghammoo 950 at first demurred
but later agreed to pay the amount demanded and to give a bottle of liquor, and
thereafter made a report to the R.S.O., Special Police Establishment at
Gorakhpur about the demand made by the appellant.
Arrangements were made to set a trap.. On
March 27, 1959, Ghammoo went.t to the office of the appellant and paid Rs. 15
in currency notes which had been duly marked by the Special Police
Establishment Officers and half a bottle of liquor. The appellant. after
receiving the currency notes assured Ghammoo that he "would not be harassed
anymore." Thereafter the police officers and the witnesses who were
watching the appellant rushed into his office and recovered the currency notes
and the bottle of liquor from him.
The appellant was prosecuted for offences
under s. 161 I.P. Code and s. 5(1)(d) read with s. 5(2) of the Prevention of
Corruption Act, 1947, after obtaining the sanction of the Deputy Chief
Commercial Superintendent. It was discovered during the course of the trial
that the Deputy Chief Commercial Superintendent was not competent to sanction
the prosecution of the appellant. The Special Judge, at the request of the
public prosecutor, by order dated May 27, 1960, quashed the proceeding.
Thereafter a fresh sanction was obtained from the Chief Commercial
Superintendent, North-Eastern Railway, Gorakhpur and the proceeding was again
started against the appellant on a charge for offences under s. 161 I.P. Code
and s. 5(1)(d) read with s, 5(2) of the Prevention of Corruption Act, 1947. The
appellant was convicted by the Special Judge and was sentenced to suffer
rigorous imprisonment for two years on each count, the sentences to run
concurrently. The order was confirmed in appeal by the High Court of Allahabad.
The appellant has appealed to this Court with special leave.
The evidence of Ghammoo, and J.K. Mehta and
V.P. Chaturvedi-officers of the Special Police Establishment,-and two panchas
Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High
Court, the Special Judge held that the appellant had under a threat compelled
Ghammoo to give him Rs. 15 and half a bottle of liquor. The marked currency
notes were found on the person of the appellant when the police officers rushed
into his office immediately after he received the currency notes from Ghammoo.
The story of the appellant that Ghammoo had been instrumental in filing a false
prosecution due to enmity was discarded. His story that the currency notes and
the bottle of liquor were brought by Ghammoo voluntarily and had been placed on
his table without any demand by him was also rejected. There is therefore clear
evidence to establish the case for the prosecution that the appellant received
a bribe from Ghammoo as a motive for forbearing to show in the exercise of his
official functions disfavour against Ghammoo.
951 Counsel for the appellant, however,
raised three contentions in support of the appeal:
(1 ) The trial by the Special Judge was
without jurisdiction because the appellant had been previously tried and had
been acquitted in respect of the same offence. In support of this contention
counsel contended that the sanction given by the Deputy Chief Commercial
Superintendent for prosecuting the appellant under the Prevention of Corruption
Act was a valid sanction, and the order passed by the Special Judge on May 27,
1960, quashing the proceeding at the request of the public prosecutor amounted
in law to an order of acquittal and the ,appellant could not again be tried for
the same offence. By virtue of s. 6(c) of the Prevention of Corruption Act,
1947, a Court may take cognizance of an offence punishable under S. 161 I.P.
Code or under s. 5 (2) of the Prevention of Corruption Act in the case of a
public servant not employed in connection with the affairs of the Union or the
affairs of a State, only with the previous sanction of the authority competent
to remove him from office. Cognizance was taken of the offences for which the
appellant was tried at the first trial with the sanction of the Deputy Chief
Commercial Superintendent, North-Eastern Railway, Gorakhpur. On May 27, 1960,
the public prosecutor applied for withdrawal of the case of the prosecution on
the ground that the sanction was ineffective.
The Special Judge granted the request and
ordered that the proceeding be quashed. Thereafter a fresh sanction was
obtained from the Chief Commercial Superintendent, North- Eastern Railway,
Gorakhpur. It is contended that the Deputy Chief Commercial Superintendent was
competent to sanction the prosecution of the appellant and the order quashing
the trial operated as an order of acquittal.
The appellant was appointed by the Traffic
Manager of the O.T. Railway in 1947. After the amalgamation of that Railway
with the North-Eastern Railway the office of Traffic Manager was abolished and
the powers of that Office were thereafter exercisable by the Chief Commercial
Superintendent of the North-Eastern Railway. Under r. 1705 cl. (c) of the
Indian Railway Establishment Code no railway servant is liable to be removed or
dismissed by an authority lower than that by which he was appointed to the:
post held by him substantively. This rule in
substance gives effect to Art. 311 (1 ) of the Constitution. Since the
appellant was appointed by the Traffic Manager of the O.T. Railway, after
amalgamation of that Railway, the power to remove the appellant could be
exercised by the Chief Commercial Superintendent. Counsel for the appellant
urged that under cl. (i) of r. 1704 of the Indian Railway Establishment Code,
the authorities specified in column 3 of Sch. I appended to the Rules in Ch.
XVII of the State Railway Establishment Code Vol. 1, may impose the penalties
specified in column 4 upon the classes of railway servants shown in column 952
2 of that Schedule, and Sch. I which occurs in Appendix III confers upon the
Deputy Heads of Department "full powers" of removal from service.
Consequently, it was said, the Deputy Chief Commercial Superintendent had the
power to remove the appellant from service, and was competent to grant sanction
under s. 6 of the Prevention of Corruption Act for the prosecution of the
appellant, and that the order passed by the Special Judge quashing the
proceeding on May 27, 1960, amounted to an order of acquittal. But r. 1704 is
subject to the provisions of r. 1705, and by r. 1705 it is expressly provided that
a railway servant shall not be removed or dismissed by an authority lower than
that by- which he was appointed to the post head by him substantively. The
powers exercisable under r. 1704(i) being subject to cl. (c) of r. 1705, and
also to the provisions of Art. 311 of the Constitution, the Deputy Chief
Commercial Superintendent could not remove the appellant from service. It
follows therefore that the Deputy Chief Commercial Superintendent had no power
to grant sanction for prosecution of the appellant, since he was an officer
inferior in rank to the Officer who had appointed the appellant as a railway
servant. The Court may take cognizance of an offence against a public servant
for the offences set out in s. 6 of the Prevention of Corruption Act only after
the previous sanction of the specified authority is obtained. The Special Judge
who had taken cognizance of the case on a sanction given by the Deputy Chief
Commercial Superintendent was incompetent to try the case, and an order of
acquittal passed by a Court which had no jurisdiction does not bar a retrial
for the same offence. It is unnecessary, therefore, to consider whether the
order quashing the proceeding amounted to an order of acquittal.
(2) The facts necessary to ,appreciate the
second contention about the irregularity of the procedure followed by the
Special Judge are these: J.K. Mehta and V.P. Chaturvedi were examined as
witnesses for the prosecution before Mr. Fakhrul Hasan, Special Judge. Their
evidence was recorded in accordance with s. 356 Code of Criminal Procedure
under supervision of the Special Judge, and record of the evidence was made in
Hindi and an English memorandum of the evidence was also maintained by the
Special Judge. The statements of the witnesses were read over to them 'and were
signed by them in acknowledgment of their correctness. But Mr. Fakhrul Hasan
died before he could append his signature thereto. Before the successor of Mr.
Fakhrul Hasan, J.K. Mehta and V.P. Chaturvedi were recalled and their evidence
which was previously recorded was read over to them. They confirmed its
correctness.
The Special Judge 'also offered to counsel
for the appellant opportunity to cross-examine the witnesses, but the offer was
declined. No objection was raised to the reading over of the evidence to the
witnesses. It was not suggested 953 that the witnesses should be re-examined.
The Special Judge thereafter subscribed his signature to the record of the
statements of the witnesses, and to the English memoranda of evidence. There is
no suggestion of injustice- actual or possible--arising from the failure to
comply strictly with the statute: it is contended that failure to observe the
letter of the law invalidated the trial.Section 356( 1 ) of the Code of
Criminal Procedure provides:
"In all other trials before Courts of
Session and Magistrate ...... the evidence of each witness shall be taken down
in writing in the ,language of the Court, either by the Magistrate or Sessions
Judge with his own hand or from his dictation in open Court or m his presence
and hearing and under his personal direction and superintendence, and the
evidence so taken down shall be signed by the Magistrate or Sessions Judge ,and
shall form part of the record." Evidence of the witnesses was recorded in
the presence and hearing and the personal direction and superintendence of Mr.
Fakhrul Hasan. Mr. Fakhrul Hasan died before he could subscribe his signature.
It is true that the Legislature has enacted that "the evidence so taken
down shall be signed by the Magistrate or Sessions Judge". As observed by
Lord Campbell in the case of the Liverpool Borough Bank v.
Turner(1):
"No universal rule can be laid down for
the construction of statutes, as to whether mandatory enactments shall be
considered directory only or obligatory, with an implied nullification for
disobedience. It is the duty of Courts of Justice to try to get at the real
intention of the legislature by carefully attending to the whole scope of the
statute to be construed.
........ in each case you must look to the
subject matter, consider the importance of the provision that has been
disregarded, and the relation of that provision to the general object intended
to be secured by the Act, and, upon a review of the case in that aspect, decide
whether the matter is what is called imperative or only directory."
Section 356 deals with the mode of recording evidence. The object of the
section is to maintain a correct record of the testimony of the witnesses. The
section occurs in Ch. XXV of the Code, 'and deals with the mode of taking and
recording evidence in inquiries and trials. To ensure a fair trial it is
provided that the evidence shall be recorded in the presence of the accused, or
where his presence is dispensed with in the presence of his lawyer, (1) [1861]
30 L.J. Ch. 379.
954 (s. 353 ): in cases tried before the
Court of Session, or Magistrates -other than Presidency Magistrates, the
evidence shall be taken down in writing in the language of the Court either in
his own hand by the presiding officer or under his direction in open Court, or
in his presence and hearing and under his personal supervision, and shall be
signed by him, (s. 356): the evidence shall after it is completed be read over
to each witness, in the presence of the accused or his lawyer, and it may, if
necessary, be corrected, Is.
[360(1)]: if the evidence is taken down in 'a
language different from the language in which it is given, and the witness does
not understand the language in which it is taken down, it shall be interpreted
to him Is.[360(3)]: if the accused does not understand the language in which
the evidence is given, it shall be interpreted in the language understood by
him: and the statement of the accused shall be recorded in the form of
questions and answers, Is. [364(1)], whereas the evidence of witnesses shall
unless otherwise directed be taken in narrative form. Compliance with the
provisions is insisted upon in the larger interest of justice, but every
departure from the strict letter of the law will not affect the validity of the
trial. The object of the provisions being to -ensure that a correct record is
maintained of what is said in Court' by witnesses, so that it may be available
at a later stage of the trial and in 'appeal, if the Court is satisfied that in
a given case the record notwithstanding any departure from the provisions is
correct the irregularity may be ignored if no injustice has resulted there from.
A rule relating to the appending of the
signature of the Judge on the record of the evidence does not go to the root of
the trial. Section 537 Code of Criminal Procedure is intended to meet
situations in which the strict letter of the law is not complied with. The
section, insofar as it is material, provides:
"Subject to the provisions hereinbefore
contained, no finding, sentence or order passed by a Court of competent
jurisdiction, shall be reversed or altered under Ch. XXVII or on appeal or
revision on account-- (a) of any error, omission, or irregularity in the
complaint, summons, warrant, proclamation, order, judgment or other proceeding
before or during trial or in any inquiry or other proceeding under this Code,
or Explanation. In determining whether any error, omission or irregularity in
any proceeding under this Code has occasioned a failure of justice. the Court
shall have regard to the fact whether the objection could and 955 should have
been raised at an earlier stage in the proceedings." There was
irregularity in maintaining the record of the evidence at the trial, because
the evidence was recorded before one Judge and another Judge subscribed his
signature to the record of that evidence. There was, therefore, no strict
compliance with the provisions of s. 356(1) Code of Criminal Procedure. But no
ground for holding that the trial is vitiated is made out merely because
instead of the Judge who heard the evidence, his successor had signed the
record. In Abdul Rahman v. King-Emperor(1), at the trial of a person accused of
a charge for abetment of forgery the deposition of witnesses were read over to
them while the case otherwise proceeded, and the evidence of some other
witnesses was handed over to them to read to themselves.
There was violation of s. 360 Code of
Criminal Procedure which provided that deposition of each witness should be
read over to him in the' presence of the accused or his pleader. An objection
was raised as to the validity of the order of conviction on the ground that the
requirements of s. 360 of the Code of Criminal Procedure were not complied
with. No inaccuracy in the deposition was suggested, but only failure to comply
with the strict requirements of s.
360 was made the ground on which the trial
was contended to be vitiated. The Judicial Committee observed that there had
been no actual or possible failure of justice. According to the Judicial
Committee reading over of the depositions of the witnesses while the case was
otherwise proceeding was not a violation of s. 360 of the Code, and that giving
of depositions to witnesses to read to themselves was rightly treated by the
High Court as an irregularity curable under s. 537 of the Code of Criminal
Procedure.
Failure to record the evidence of witnesses
J.K. Mehta and V.P. Chaturvedi again in the presence and under the
superintendence of the Judge who signed may be a regrettable irregularity, but
it does not vitiate the trial.
Counsel for the appellant, however, invited
our attention to the judgment of the Privy Council in Nazir Ahmad v. The King
Emperor(2), and contended that where the Legislature has prescribed a method in
respect of a certain thing, it means that that is the only method in which the
thing must be done or not at all. Counsel said that the method of recording the
evidence and of maintaining the record is prescribed by s. 356 of the Code of
Criminal Procedure and no substitute is permissible. In our judgment, the
principle of Nazir Ahmed's case(2) has no application here. That was a case in
which the appellant who was charged with dacoity and murder was convicted on
the strength (1) L.R. 54 I.A. 96. (2) L.R. 63 I.A.
372.
956 of a confession said to have been made by
him to a magistrate of the class entitled to proceed under the provisions of s.
164 of the Code of Criminal Procedure relating to the recording of Confessions.
The confession was not recorded according to the procedure prescribed by s. 164
of the Code of Criminal procedure and the record of the confession was not
therefore available as evidence. The Magistrate however appeared as 'a witness
and gave oral evidence about the making of the confession. The Judicial Committee
held that the oral evidence of the Magistrate of the alleged confession was
inadmissible. According to the Judicial Committee the effect of ss. 164 and 364
of the Code of Criminal Procedure, construed together, is to prescribe the mode
in which confessions are to be dealt with by magistrates when made during an
investigation. The rule that where a power is given to do a certain thing in a
certain way the thing must be done in that way, to the exclusion of all other
methods of performance, or not at all, was applicable to a magistrate, who is a
judicial officer, acting under s. 164. In that case, in the view of the
Judicial Committee, the only manner in which a judicial confession could be
recorded is the one prescribed by s.
164 of the Code of Criminal Procedure and if
it is not so corded no evidence of the making of that confession was
admissible. The reasons for that view were explained by the Judicial Committee.
A judicial confession in a trial is of greater sanctity because it is recorded
before an independent Judicial Officer after taking full precautions to ensure
that the accused making the confession is free from all police or other
influence and after the accused has had sufficient opportunity of considering
whether he should or should not make confession and that there is no compulsion
upon the accused to make a confession. The law requires that the accused must
be explained that he is not bound to make the confession. A confession obtained
in such circumstances has great probative value in considering its voluntary
character. Section 164 prescribes stringent rules as to the manner in which the
confession has to be recorded.
If the rules are not complied with, there is
no guarantee that the confession has been voluntarily made. It is in the context
of these provisions that the Judicial Committee held that confession which is
not recorded in the manner prescribed by s. 164 of the Code of Criminal
Procedure cannot be deposed to by a Magistrate as if it was an extra- judicial
confession. The Judicial Committee observed that when the Legislature has
prescribed the method of recording the confessions under s. 164 and s. 364 it
would be an unnatural construction to hold that any other procedure was
permitted than that which is laid down with such minute particularity in the
sections themselves. They further observed:
"As 'a matter of good sense, the
position of accused persons and the position of magistracy are both to be 957
considered. An examination of the Code shows how carefully and precisely defined
is the procedure regulating what may be asked of or done in the matter of
examination of, accused persons, and as to how the results are to be recorded
and what use is to be made of such records. Nor is this surprising in a
jurisdiction where it is not permissible for an accused person to give evidence
on oath.
So with regard to the magistracy: it is for
obvious reasons most undesirable that magistrates and judges should be in the
position of witnesses in so ,far as it can be avoided. Sometimes it cannot be
avoided, as under s. 533; but where matter can be made of record and therefore
admissible as such there are the strongest reasons of policy for supposing that
the Legislature designed that it should be made available in that form and no
other. In their Lordships' view, it would be particularly unfortunate if
magistrates were ,asked at all generally to act rather as police-officers the
as judicial persons, to be by reason of their position freed from the
disability that attaches to police-officers under s. 162 of the Code; and to be
at the same time freed, notwithstanding their position as magistrates, from any
obligation to make records under s. 164." No such considerations apply to
the record of evidence of witnesses given in open court made in the presence
and under the personal supervision of a Judge and in the presence of the
accused, and his lawyer.
(3) It was then urged that the investigation
was made by an officer who had no 'authority to investigate the offence.
After Ghammoo made his complaint sanction of
the Additional District Magistrate (Judicial) was obtained for investigation of
the case by a police-officer below the rank of a Deputy Superintendent of
Police. Section 5A(1 )(d) of the Prevention of Corruption Act, 1947, provides:
"No police officer below the rank of a
Deputy Superintendent of Police shall investigate any offence punishable under
section 161, section 165 or section 165A of the I.P.C. or under section 5 of
this Act without order of a Presidency Magistrate or a Magistrate of the First
Class, as the case may be, or to make any arrest therefore without a warrant
.... " The Legislature has provided that ordinarily investigation of a
case against a public servant should be made by an officer not below the rank
of a Deputy Superintendent of Police in connection with the charge of bribery
and related offences. But the Legislature has expressly provided that an
Officer below the rank of a Deputy Superintendent of Police may investigate
those offences with the order of a Presidency Magistrate or a Magistrate of the
First Class. In the present case the order of the Additional District
Magistrate who held the office of a First Class Magistrate was obtained
authorising an Officer below the rank of a Deputy Superintendent of Police to
investigate the offence. No objection is raised to the regularity of the
proceeding before the Additional District Magistrate, nor is there any ground
that for an oblique motive, services of an officer below the rank of a Deputy
Superintendent of Police were used in making the investigation against the
appellant. The third contention must also fail.
The appeal fails and is dismissed.
R.K.P..S. Appeal dismissed.
Back
