Report No. 14
18. Lack of sanction.-
The further question whether the plea of want of sanction should be permitted in the appellate or revisional courts, if it has not been raised in the trial court, is of greater importance.
Reason for the requirement.- Several provisions such as sections 195, 196, 196A, 198 etc., provide that "no court shall take cognizance" of certain categories of cases except on certain conditions. Courts are not to take cognizance of offences against the lawful authority of public servants, offences against public justice and certain other offences except on a complaint in writing by the public servant or by the court concerned. In respect of certain offences against the State, specified in section 196, a prosecution has to be preceded by a complaint made by order of, or under authority from, the State Government or some officer empowered by the State Government in this behalf. In cases of conspiracy also, such a complaint by the State Government or some specified officer is necessary.
In other categories of offences referred to in section 198, a complaint has to be made by some person aggrieved by such offence. Act XXVI of 1955 enacted section 198B dealing with prosecutions for defamation of public servants in respect of their conduct in the discharge of their functions. An exclusive jurisdiction has been conferred on the court of session to take cognizance of such offences upon a complaint in writing made by the public prosecutor. The public prosecutor is required to obtain the previous sanction of certain specified authorities before filing the complaint. In such cases, the law bars a court from taking cognizance of offences, except upon a complaint made by a specified person who must act with the previous sanction of specified authorities.
19. We may also refer to section 197 which relates to the prosecution of judges, magistrates or public servants. When any of these persons is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, the law provides that no court shall take cognizance of such an offence except with the previous sanction of the Central or the State Government, as the case may be. In these cases also, the previous sanction of the Government is necessary before a criminal proceeding of the nature specified can be launched against such a person. Though the police might investigate such an offence and prepare a police report, the court is not competent to commence proceedings upon such a report if, in the case of such an accused person, previous sanction has not been accorded by the Government concerned.
It has to be remembered that section 537 which deals with irregularities or illegalities does not include want of sanction within its scope. The reason for this omission probably is that unless such sanction is available at the commencement of the proceedings, the court would have no jurisdiction to deal with the matter. Where in a case in which previous sanction is required by the law and a prosecution has been launched without such sanction, the proceedings will be void as the court is prevented from trying the case without such previous sanction.
20. Underlying policy.-
The policy underlying these provisions appears to be that persons in responsible positions ought to be protected from malicious or vexatious proceedings in respect of acts done by them in the discharge of their official duties and that no prosecution should be permitted to be launched against such persons, unless there is some reasonable foundation for the accusation. It is obvious that the administration cannot be carried on, if a citizen is to be free to invoke the criminal law against public servants whose lawful action may engender his hostility.
However, the public servant is not placed beyond the reach of the law. His official acts are, initially protected; but if an act purporting to have been done by him in the discharge of his official duties is alleged to be an offence, a superior authority responsible for the administration becomes entitled to examine the matter. If it is satisfied that the allegation calls for judicial scrutiny, it may sanction the prosecution of the public servant. By these provisions every public servant would not become liable to face frivolous prosecutions launched by disgruntled members of the public.
Section 197 applied only to offences alleged to have been committed by public servants while acting or purporting to act in the discharge of their duties. It does not apply to all offences alleged to have been committed by a public servant. The Privy Council in interpreting this provision has observed that "The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office1."
1. Gill v. Emperor, AIR 1948 PC 128 (133).
21. Raising such objections subsequent to the trial stage.-
The question has been raised whether, in cases where the law requires sanction before courts can take cognizance of cases, a contention based on the want of sanction should be permitted to be raised in the appellate or revisional court, if it has not been raised in the trial court. The defence of want of sanction is, it is said, the last resort of many dishonest public servants and is generally not put forward till the matter is under appeal. It is, therefore, urged that it is important that courts should investigate at the earliest opportunity whether a sanction is necessary.
The interests of the accused also require that he should raise the contention at the earliest stage because, if such a plea is upheld by the trial court, a duty would be cast upon the superior authorities to examine the facts of the case and to exonerate the public servant, if the charge against him is ill-founded, or grant the necessary sanction in case the complaint is true. It has already been stated that only public servants who are conscious of having acted illegally in the discharge or the purported discharge of their official duties do not put forward the defence at the earliest stage. The prosecution would thus have the advantage of curing the defect of want of sanction in the proceedings started by it if it raises the contention at the earliest stage.
22. Want of sanction affects jurisdiction.-
It is difficult to regard a want of sanction required by the law to entitle the court to entertain the prosecution in the same light as an error, omission or irregularity in the framing of the charge. The court is, in the absence of sanction, without jurisdiction to entertain the proceedings. But when charges are improperly framed, a court having jurisdiction merely acts in contravention of some provisions of the Code regulating the course of the trial. It would, we think, be wrong in principle to permit an order passed by a court without jurisdiction to be effective merely because the accused person failed to raise the plea of want of jurisdiction before the trial court, as if such conduct of the accused could have the effect of giving sanctity to an order or sentence of a court not authorised to pass it.
23. Sanction necessary on grounds of policy.-
Nor must we forget that sanction to the initiation of proceedings is required not only in the case of public servants charged with offences but also in other cases where public policy requires that offences should not be investigated by a court of law unless the State permits them to be investigated. We are referring to offences against the State like sedition or waging war against the Government of India. Obviously, want of sanction affecting the jurisdiction of the court must be treated alike in all cases whether they be cases of offences by public servants or offences against the State.
As already pointed out, the principle underlying the requirement of sanction is that in the case of these offences public policy requires that prior to the initiation of the proceedings the State should decide whether the proceedings should or should not be started. Once the requirement of sanction is accepted to be a matter governed by considerations of public policy, it would obviously be unsound to treat it as a mere technical objection which, if not raised at the earliest stage, should not be allowed to be raised at a later stage.
Not an irregularity.- Nor would it be correct to treat the want of sanction as an irregularity or omission of the nature mentioned and provided for in section 537 of the Criminal Procedure Code. The underlying principle of that section is that the failure to observe the law should make the proceeding void only when such failure has occasioned a miscarriage of justice. No question, however, of miscarriage of justice having taken place could arise from a want of sanction which the law requires. It is not a procedural defect\ It is a defect which goes to the root of the proceedings inasmuch as it bars the court from entertaining and dealing with the matter.
Change undesirable.- In the circumstances, we are unable to recommend any alteration in the existing law in regard either to the need for previous sanction or to the consequences of the absence of such a sanction.
24. Reading out judgment in court.-
Section 366 of the Criminal Procedure Code requires that every judgment of a criminal court of original jurisdiction shall be pronounced in open court or the substance of the judgment shall be explained in the language of the court or in some other language which the accused or his pleader understands. There is a proviso to this section, which requires that "the whole judgment shall be read out by the presiding judge, if he is requested so to do either by the prosecution or the defence." We were told that in the subordinate criminal courts judgments are not as a rule read out in open court; nor is a request generally made either by the prosecution or the defence that the judgment should be read.
Its purpose.- The proviso appears to have been enacted to enable the accused person or the prosecution to know how the judge has viewed the case and how he reached his conclusions. Section 371 makes it imperative that the accused shall be given a copy of the judgment without delay and free of cost in any case other than a summons case. The recent amendment of the Criminal Procedure Code has rather provided by section 371(4) that where the accused is sentenced to imprisonment, "a copy of the finding and sentence shall, as soon as may be after the delivery of the judgment, be given to the accused free of cost". These requirements are intended to enable the accused person after conviction to move for bail and to prefer an appeal.
25. Copy of judgment to be supplied for perusal.-
It seems to us, therefore, that no purpose is served by the proviso to section 366. Section 367 requires that the judgment shall be dated and signed by the presiding officer in open court at the time of pronouncing it. It is also not competent to the court to alter its judgment in any manner except in order to correct a clerical error. Ordinarily, therefore, the written judgment would be ready in its final shape when the judge pronounces it. It should, therefore, be possible for the judge to have a sufficient number of copies of the judgment available for being handed over immediately to the accused if he is entitled to a free copy. Such a copy could perhaps be made available in every case both to the prosecution and the defence for their perusal without the judge being called upon to waste his time in reading the whole of the judgment.
This would be in accord with our recommendation that the High Courts should not read out in court reserved judgments but make copies thereof available for perusal. Such an alteration in the law would ensure, that the Judge prepares his judgment before the date of its pronouncement and no opportunity would be left to the Judges to pronounce judgments without having written them previously. We accordingly recommend that the proviso to section 366 requiring the judgment to be read out, be deleted. It should be provided that a copy of the judgment should be made immediately available to the prosecution or the defence for perusal. That would, of course, be without prejudice to the rights of the accused person to a free copy of the judgment as other sections of the Criminal Procedure Code provide.
26. Expert Witnesses (section 510 Cr. P.C.).-
The law of evidence requires the production of the best evidence in proof of all relevant facts. This principle is expressed in section 60 of the Indian Evidence Act, which prescribes the general mode of proof and requires that oral evidence tendered in the court should be direct evidence. This is, however, not an absolute rule and is subject to numerous exceptions.
One such exception is contained in section 510 of the Criminal Procedure Code which lays down as a special rule of evidence, that a document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to the Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer of the Mint, regarding matter or thing duly submitted to him for examination or analysis and report, might be used in evidence in any inquiry or trial or proceeding without actually summoning him for examination in court. The principal object of dispensing with the personal attendance of such witnesses is to avoid the expense, delay and inconvenience that would be caused, if these witnesses were to be obliged to rush from one court to another.
Recent amendment (Recommendation).- Before the recent amendment of the Code, this special mode of proof was restricted only to the reports of the Chemical Examiner or the Assistant Chemical Examiner but the scope of the section has now been extended to other categories of experts like the Chief Inspector of Explosives, Director of Finger Print Bureau or an officer of the Mint, all of whom, before the amendment, had to appear before the court and personally testify with regard to matters submitted to them for report. Another change that has been made by the recent amendment of section 510 is that, while before the amendment, the Court alone had the discretion to summon the Chemical Examiner for examination, if it thought fit, under the amended section the court is bound to summon and examine any such expert on the application of the prosecution or the accused.
The court has no discretion to refuse such an application, even if it be of the view that the personal examination would serve no useful purpose and that the sole purpose of an application to examine him is to delay the proceedings unnecessarily. The accused thus now enjoys the unrestricted privilege of summoning the expert witnesses, which at any rate so far as the Chemical Examiner is concerned, he never enjoyed before. Under sections 252 and 257 of the Code, a magistrate trying a warrant case, has considerable discretion in summoning or refusing to summon prosecution or defence witnesses. He may summon only such of the prosecution witnesses, as he thinks necessary and refuse to summon defence witnesses, if he thinks that the application of the accused is made for the purpose of vexation of delay or for defeating the ends of justice.
In contrast, section 510 confers an unrestricted privilege upon the prosecution or the accused, without any discretion being left to the court. We think that such an unqualified right given to the prosecution and the defence, is likely to be abused and cause unreasonable delay in the disposal of criminal cases. No specific cases of delay having occurred on this account were brought to our notice. But in the replies to our Questionnaire, a substantial body of opinion expressed itself against this provision giving the prosecution or the defence an unrestricted right.
In most of the States, very few such experts are available and if the prosecution or the accused is to be given the liberty, uncontrolled by the discretion of the court, to require the personal appearance of these witnesses, not only would unnecessary expense and inconvenience be caused to the prosecution, but considerable delays will arise in the disposal of cases. We, therefore, recommend that section 510 Criminal Procedure Code be amended, so as to give the court, the discretion to summon these expert witnesses only in those cases, in which substantial grounds are made out by the prosecution or the accused to justify their personal attendance before the court. These officers are generally summoned to appear in the superior courts and these Courts may well be trusted to exercise the discretion properly.
27. Summary of recommendations.-
Our recommendations in this Chapter may be summarised as follows:-
(1)If a witness has made two contradictory statements on oath, the court before which he made the subsequent statement, should have the power to punish him summarily for perjury.
(2) The maximum penalty which can be awarded by the court in any such case should be limited to imprisonment for six months and/or a fine of five hundred rupees.
(3) A person thus summarily convicted should have a right of appeal.
(4) It is not desirable to relax the presumption of innocence of an accused person.
(5) Except in the case of anti-social offences, it is not desirable to restrict the exercise of judicial discretion by prescribing a minimum penalty by statute. Instead, the High Courts' revisional jurisdiction should be invoked when inadequate sentences are passed.
(6) The law relating to the consequences of a misjoinder of charges or lack of sanction needs no alternation.
(7) The proviso to section 366 of the Criminal Procedure Code may be repealed. Instead it should be enacted that copies of the judgment should be immediately made available for perusal by the prosecution or the accused.
(8) Section 510 of the Criminal Procedure Code should be amended so that the expert witnesses mentioned therein can be called by either party to depose before the court, only with the leave of the court.
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