TMI Blog1959 (10) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... engthening and repairing of old tracks and converting railway lines into motor roads. Some of these works were executed by the army and some were entrusted to contractors. After evacuation of Burma its Government was located at Simla. In August, 1942, the Government of Burma advertised inviting claims from contractors who had executed works or had supplied materials in Burma and had not yet been paid. Satwant Singh had worked as a contractor in Burma. He at first submitted a claim for a sum of a little over ₹ 18,000. Later on, he put in further claims the total amount of which ran into several lakhs of rupees. These claims were sent by the Government of Burma to Major Henderson at Jhansi in March and May, 1943, for verification as he was the officer who had knowledge of these matters. This officer certified many of these claims to be correct and sent the papers back to Simla. He did not pass one claim because it was within the knowledge of another officer Mr. Nasa. On the certification of the claims by Henderson, the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Claims at Kolhapur was directed to pay the amounts sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Henderson applied for examination of certain witnesses on commission in England. His prayer was granted. Satwant Singh fearing that the trial of the cases against him would be delayed, requested that his cases be separated from the cases against Henderson. This prayer was allowed and his trials proceeded against him as the sole accused except in the trial of Cases Nos. 54, 55 and 56 in which Henderson was a coaccused with him. The Special Tribunal imposed sentences of imprisonment ranging from one year to three and a half years in the several trials. In addition, it imposed fines of various amounts. It divided the fines into ordinary and compulsory , the latter by virtue of s. 10 of the Ordinance. In default of payment of the ordinary fines it directed the appellant to undergo further imprisonment for certain periods. There was no such direction with respect to the compulsory fines. The High Court reduced the sentence of imprisonment to two years in all the trials where such sentence was in excess of that period. The sentences of imprisonment in all the trials were to run concurrently. The High Court maintained the sentence of ordinary fines imposed by the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cheating by the former and 3 offenses of abetment thereof by the latter. Section 239 of the Code was a self-contained provision and had to be read without bringing into aid the provisions of s. 234. Fourthly, it was pointed out that as no sanction under s. 197 of the Code by the proper authority had been given for the prosecution of Henderson, he could not be tried without such a sanction. Joint trial of Henderson and the appellant without such a sanction vitiated the trial. Fifthly, it was submitted that as Burma was not a Dominion of His Majesty s Government in 1943 the Ordinance did not apply. In the course of the argument the fifth submission was abandoned and, we think, rightly It would be convenient to deal together with the first and the fourth submissions regarding the noncompliance with the provisions of ss. 188 and 197 of the Code of Criminal Procedure. Before the provisions of s. 188 can apply it must be established that the offence for which the appellant was charged was committed outside British India. The appellant was charged with the offence of cheating. He had filed certain claims before the Government of Burma at Simla. Those claims were certified as true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1959, and it was held that the rule in the Ogale Glass Works case ([1959] 36 I.T.R. 488) was inapplicable to the facts of the case. In the latter case it was found by this Court that : Whatever may be the position when there is an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties, the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Glass Works case (1)would be inapplicable. In the present case an inquiry was made from the appellant how he would like the payment to be made and he replied that cheques payable at the Imperial Bank of India, Lahore Branch, should be sent to him. Accordingly, cheques on the Imperial Bank of India, Lahore Branch, were sent to the appellant by post in Lahore and the appellant encashed them there. In these circumstances, the rule in Ogale Glass Works case (1) is inapplicable and it must be held that the payment was made to the appellant at Lahore and not at Kolhapur where the cheques had been posted. Furthermore, what may be relevant for consideration as to the place of payment f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sanction under s. 197 of the Code. -In the High Court, apparently, no submission was made that Henderson was not a public servant removable by the Governor General-in- Council or the Provincial Government. If it is being urged now that Henderson was not such a person then the appellant should be given an opportunity to show that he was a public servant so removable. It is unnecessary to deal with these submissions, which relate to a question of fact, in view of our conclusion as mentioned below with respect to the applicability of the provisions of s. 197 of the Code in the present case. Under, s. 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor General-in Council or a Provincial Government, save upon a sanction by one or the other as the case may be, when such offence is committed by him while acting or purporting to act in the discharge of his official duty. Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under s. 420 of the Indian Penal Code by falsely stating as a fact, in his reports that the appellants claims were true and that stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code were not inconsistent with the Ordinance and therefore had to be complied with before the Special Tribunal could try Henderson. It was pointed out that under s. 6 of the Ordinance the Special Tribunal was specifically authorized to take cognizance of an offence without the accused being committed to it for trial and sub-s. (2) of that section stated that Save as provided in sub-s. (1) the Code of Criminal Procedure,1898 (V of 1898), except the provisions of section 196-A and of Chapter XXXIII, shall so far as they are not inconsistent with this Ordinance, apply to proceedings of a Special Tribunal ; and for the purposes of the said provisions the Special Tribunal shall be deemed to be a Court of Session, trying cases without a jury, and a person conducting a prosecution before a Special Tribunal shall be deemed to be a Public Prosecutor. It was urged that by virtue of this sub-section the provisions of the Code of Criminal Procedure would be applicable except the provisions of s. 196-A and Chapter XXXIII which had been expressly excluded.If s. 197 of the Code was intended to be excluded, the Ordinance would have said so. Having regard to the view we take that the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce either at Lahore or at Simla. The case of these accused was allotted to the Special Tribunal at Lahore and would have normally been tried there but for the partition of India. The trial under the authority of law, was concluded at Simla. There seems, therefore, to have been no illegality committed in trying the appellant and Henderson together at Simla. The other line of argument in support of the objection that the appellant and Henderson could not be tried together was based on the provisions of ss. 233 and 239 of the Code. It was pointed out that under the provisions of s. 233 of the Code for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in ss. 234, 235, 236 and 239. Unless, therefore, the joinder of trial of the appellant and Henderson was permitted under s. 239 of the Code they could not be tried together. It was: urged that in construing s. 239 of the Code it was not permissible to take into consideration the provisions of s. 234. The only provision by which a person accused of an offence and a person accused of abetment of that offence can be tried tog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 235, 236 and 239 are permissive sections. They are not compelling sections. That is to say, although these sections permit joinder of charges and joinder of persons a Court may well consider it desirable in the interest of justice and having regard to the circumstances of a particular case that the charges framed should be split up and separate trials should take place in respect of them and the accused be tried separately. It was to avoid multiplicity of trials, harassment to the accused and waste of time that the permissive ss. 234, 235, 236 and 239 enable a court, within their terms, to join charges and persons in a single trial. Section 239 permitted joinder of charges and persons in a single trial in cases covered by cls. (a) to (g). These clauses permitted the joinder of persons as accused in one trial and they contemplated the various circumstances in which such persons could be tried together. Joinder of several persons in one trial necessarily involves the framing of more than one charge. If the joinder of charges was within the terms of the section, then the provisions of s. 233 had no application. Although in cl. (b) of the section the words used are persons accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number. S. 235 went a step further. It permitted an accused person to be tried for more offences than one committed by him and the framing of -a charge with respect to every such offence, provided that the series of acts were soconnected together as to from the same transaction. It also permitted that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for,each of such offences. It also provided that if several acts of which one or more than one would by or them-selves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more of such acts. S. 236 permitted the framing of alternative charges where a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ringe the provisions of cl. (b). Furthermore, the concluding words of the section make it clear that the provisions contained in the former part of Chapter XIX, i.e., previous to s. 239 as a far as may be shall apply to all charges framed at the trial. It was suggested that the words the former part of this Chapter referred to ss. 221 to 232 as Chapter XIX is in two parts, the first part being the form of charges and the second part joinder of charges. Although such headings do appeal in the Chapter, it is to be noticed that Chapter X LX does not divide itself into several parts as is to be found in many of the Chapters of the Code, e.g., in Chapter XXIII the parts are headed A to L. It is further to be noticed that words similar to the concludingwords of s. 239 do not appear in s. 235 of the Code.The reason for these words appearing in s. 239 of theCode appears to be that this section permits persons to be charged and tried together. The (lode obviously contemplated that when charges were being framed against each of the several accused in the cases contemplated in s. 239, not only the provisions concerning the form of charges but also the provisions concerning the joinder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat has been described as compulsory fines. The High Court felt that it was bound by the decisions of this Court in the cases of Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh and Kedar Nath Bajoria v. The State, of West Bengal (2). It was urged by the Solicitor-General that the Special Tribunal was in error in describing the fines imposed by it as ordinary and compulsory .Section 10 of the Ordinance contemplated no such distinction. What it did direct was, whether or not a sentence of imprisonment was imposed by the Special Tribunal, that a sentence of fine must be imposed and that fine shall not be less in amount than the amount of money or value of other property found to have been procured by the offender by means of the offence. In other words, the section imposed a minimum fine, in any event, whether a sentence of imprisonment was or was not imposed. In the present case a sentence of imprisonment was, in fact,imposed and the total of fines imposed, whether described as ordinary or compulsory , was not less than the amount of money procured by, the appellant by means of his offence. Under s. 42O of the Indian Penal Code an unlimited amount of fine co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 20 of the Constitution has been contravened by the provisions of s. 10 of the Ordinance as the extent of fine which can be imposed under s. 420, by law, is unlimited. It cannot be said that s. 10 of the Ordinance in imposing the minimum fine which a court shall inflict on a convicted person was a penalty greater than that which might have been inflicted on that person under the law in force at the time of the commission of the offence, where under such law the extent of fine which could be imposed is unlimited. In the case of Rao Shiv Bahadur Singh ([1953] S.C.R. 1189.), referred to above, this Court held that Art. 20 of the Constitution must be taken to prohibit a conviction or subjection to penalty after the Constitution in respect of ex post facto law whether the same was a pre-Constitutional law or a post-Constitutional law. The prohibition under the Article was not confined to the passing or the validity of the law but extended to the conviction or :the sentence and was based on its character as ex post facto law and therefore fullest effect must be given to the actual words used in the Article. It had been urged in that case that the Vindhya Pradesh Ordinance (No. XLVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant under the law in force at the time of the commission of the offence, because the fine which could have been imposed upon him under s. 420 was unlimited. A law which provides for a minimum sentence of fine on conviction cannot be read as one which imposes a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed. Whether a fine was excessive or not would be a question of fact in each particular case but no such question can arise in a case where the law imposes a minimum sentence of fine. Under Art. 20 of the Constitution all that has to be considered is whether the ex post facto law imposes a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence. For the reasons already stated it cannot be said that s. 10 of the Ordinance imposed any such penalty and therefore was in contravention of the provisions of Art. 20. These appeals are accordingly allowed and the order of the High Court setting aside the compulsory fines imposed by the Special Tribunal is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Is official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. The same test was repeated in Meads case (75 I.A. 185.) and in Phenindra Chandra Neogy v. The King(76 I.A. 10). Gill s case(5 I. A. 41.) and Neogy s case (2) dealt with an offence of bribery under s. 161, but Meads case(1) was a case of a Courtmartial against an officer who was alleged to have misappropriated money entrusted to him and his defence was that while he was sleeping, the currency notes were burnt by the falling of a candle which was burning in his room. In Hori Rain Singh s case ([1939] F.C.R. 159.) which was approved by the Privy Council and this Court in Amrik Singh s case ([1955] 1 S.C.R. 1302.), Vardachariar, J., had accepted the correctness of that track of decision which had held that sanction was necessary when the act complained of attached to the official character of the person doing it. The test was thus stated by Venkatarama Aiyar, J., in Amrik Singh s case (5) at p. 1307: but if the act complained of is directly concerned with his official duties so that, if questioned, it could be clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne at the earliest moment in the trial Court when the facts could have been established by evidence. This is not the stage for asking the facts to be proved by additional evidence. In the grounds of appeal to the High Court the objection was to the form of the sanction. It also appears that no argument was raised in the High Court that the sanction under s. 270 of the Constitution Act could not take the place of a sanction under s. 197, Criminal Procedure Code, because the scope of the two provisions is different. But as I have said above the evidence to support the plea under s. 197 and to establish the requisite nexus between the act done by Henderson and the scope and extent of his duties is lacking and therefore the applicability of s. 197 to the facts of the present case cannot be held to have been proved. In my opinion the foundation has not been laid for holding that sanction under s. 197 was necessary in the instant case. I therefore agree that the appeals be dismissed. By court.-The petitioner s Criminal Appeals Nos. 100 to 105 of 1954 having been dismissed and the conviction of the petitioner having been upheld, this petition is dismissed. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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