TMI Blog1939 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... l, I had expressed a doubt regarding it in the course of the hearing. The question being one of jurisdiction, I feel that I should not ignore it. Criminal Jurisdiction. 3. The first question is whether a criminal appeal at all lies to the Federal Court. The mere fact that the Federal Court has framed rules for such appeals is not by itself conclusive. The doubt is created by the observations made by their Lordships of the Privy Council in the somewhat analogous case in Chung Chuok v. The King (1930) 17 A I R P C 291 In that case the decision turned on the interpretation of Rule 2 of the Order in Council dated 23rd January 1911. Under that Rule an appeal lay as of right from any final judgment of the Court, and at the discretion of the Court from any other judgment Rule 1 defined 'judgment' as including decree, order, sentence or decision. Their Lordships pointed out that although the word 'sentence' is appropriate to some procedure in criminal law and is chiefly heard in criminal trials, there is a groat difference between a conviction and a sentence and it would be very strange if there were appeal against sentence and not against conviction; the word ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal jurisdiction of the Federal Court is mentioned in Section 210(2), but only as regards punishment of any contempt of Court. On the other hand, it cannot be doubted that the words judgment and final order in themselves are certainly wide arid can include a criminal judgment and a criminal order. Although Section 206 is confined to civil cases Section 205 has no such restriction. Similarly, the words judgment or order in Section 209 are also wide enough. Sub-section (3) can be made applicable to a criminal case before the aceused is actually sent to prison. The realization of fine or sending him to prison or the carrying out of a sentence of whipping or death can certainly be postponed if a stay of execution is ordered. Section 210 refers to all Courts in British India. These may well include not only Civil but also Criminal Courts. 5. The main object of the establishment of the Federal Court is to get decided substantial questions of law as to the interpretation of this Act or any Order in Council made thereunder, so as to introduce uniformity throughout India. Section 270 which contains an indemnity for past acts to Government servants prevents criminal proceedings fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 225, Judicature Act, judgment includes decree. In that sense in a civil case the word decree' in the expression 'judgment, decree or final order' would be superfluous. Indeed, although wider, the operative part of a judgment is almost like an Indian decree. Decree was a term, which, in Equity practice, corresponded to judgment at Common law. Decree is the equivalent to the term judgment in the Queens' Bench Division. A judgment is a decision obtained in an action, and any other decision is an order: per Cotton L. J. in Ex parte Chinery (1884) 12 Q B D 342. The forms of judgment given in the Annual Practice, Appendix D, are exactly like the forms of decrees in the Indian Code, Appendix D. According to the English practice, both judgment and decree can be final or interlocutory according as they do or do not finally determine the rights of the parties and conclusively dispose of the whole matter in dispute. Black in his book on Judgments defined a judgment as the determination or sentence of the law pronounced by a competent Judge or Court as the result of an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 15 of the Letters Patent. 10. The learned Chief Justice at page 140 doubted whether the correct technical use of the word 'judgment' in England is a safe guide. The High Courts of Bombay and Patna have purported to accept the definition of Couch C.J. generally. But in Cal. cutta, Bombay and Madras orders in civil revision were regarded as judgments until the Letters Patent were amended in 1919, which made an appeal impossible. The latest Full Bench case of the Madras High Court is 35 Mad l7 where White C.J. held at page 7 that if its effeot, whatever its form may be, and whatever may be the language of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or its effect, if it is complied, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. 11. The Lahore High Court appears to have adopted the view of White C.J. In the Full Bench of the Allahabad High Court, 14 All 2268 Edge C.J. at p.228 observed: 12. In my opinion the judgment referred to in Section 10 of the Letters Patent is the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case in Shahzadi Begam v. Alakhnath (1935) 22 AIR All 620 at p. 685 a full Bench of the Allahabad High Court of which I was a member at the time, dissented from the opinion of White C.J. expressed in the Madras full Bench, and it was pointed out that: The test laid down by the learned Chief Justice of the Madras High Court is put in too wide a language and cannot be aocepted as laying down the correot criterion, and it was further observed that their Lordships' observation in Sewak Jeranohod Bhogi Lal v. Dakore Temple Committee (1925) 12 A I R P C 155 made it clear that the word 'judgment' used in the Letters Patent is not to be taken in its widest scope. The Allahabad full Bench at p. 687 declined to accept the contention that: Every order passed by a single Judge which puts an end to or terminates the proceeding or which has by implication the necessary effect resulting in such a termination is a judgment. 16. Shortly after this Allahabad Full Bench case came the Full Bench decision of the Rangoon High Court in Daya Bhai Jiwan Das v. Murugappa (1935) 22 A I R Rang 267 where at p. 269 the view of White C.J. was dissented from and Page C. J. observed that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 is not a judgment within the meaning of Section 360 and this was the opinion of the majority. This opinion was later followed by another Division Bench of the Madras High Court in Emperor v. Maheshwara Kondaya (1908) 31 Mad 543 at page 545 where it was held that an order of discharge is not a judgment, as a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused. 18. Thus, neither under the English nor the lndian law the term 'judgment' in a criminal case includes an interlocutory orders In Section 205(1) of the Act, the word 'judgment' does not occur by itself but is used; in conjunction with final order. When both the terms judgment and final order are used together in one expression, they undoubtedly connote different and distinct meanings, and judgment cannot be interpreted as embracing even interlocutory orders, which would make the category 'final order' wholly superfluous and unnecessary. It is true that in the Federal Court Rules unfortunately the definitions of judgment, decree and order have been borrowed from the Code of Civil Procedure; but that of course is only for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case should not be gone into at all. 20. But their Lordships have in two more recent cases expressed a somewhat different view. In Ramchand Manjimal v. Goverdhandas Vishan das Ratanchand (1920) 7 A I R P C 86 their Lordships following two English decisions,Salaman v. Warner (1891) 1 Q B 734 and Bazson v. Altricham Urban Dristrict Council (No.1) (1903) 1 K B 547 laid down that an order refusing stay of suit under the Arbitration Act was not a final order, as it did not finally dispose of the rights of the parties but left them to be determined by the Courts in the ordinary way. The definition of final order as given in Salaman v. Warner (1891) 1 Q B 734 was as follows: Lord Esher M.R. observed: If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. 21. Fry L. J. remarked : I conceive that an order is final only where it is made upon an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order from which it is sought to appeal is not to dispose finally of the rights of the parties, then even though it decides an important and even a vital issue in the case, it leaves the suit alive and provides for its trial in the ordinary way. As the 'final order' may be either in a civil or criminal case the definition given by their Lordships in the civil case must by analogy be applied to a criminal case as well. In the present case, the appeal has not yet been tried on the merits. It is still to be finally decided by the Sessions Judge whether the accused was or was not guilty of the offences with which he had been charged. The question of want of consent, although vital for the purposes of the proceedings as it went to the root of the matter so far as their continuance is concerned, is after all a preliminary question as to whether the proceedings had been properly instituted or not. The criminal case is still a live case, and the innocence or the guilt of the accused has not been finally determined. The question raised was one of jurisdiction of the Magistrate to entertain the complaint and was therefore analogous to the question of jurisdiction raised in (1933) 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernor of that Provinoe in his discretion. 27. The main question for consideration is the interpretation of the words any act done or purporting to be done in the execution of his duty as a servant. The Act being a recent one, no case turning on the interpretation of Section 270(1), other than the one under appeal, has been brought to our notice. Besides the cases under Section 80, Civil P.C, there are a very large number of cases under Section 197, Criminal P.C., showing a considerable conflict of opinion among the Indian High Courts as to the applicability of that Section. The words of that Section are not exactly identical with those in the Section before us. There we have the words while acting or purporting to act in the discharge of his official duty, which have caused a divergence of opinion on the true significance of the words 'while acting or purporting to act. It is therefore best to focus attention on the words actually used in Section 270(1). 28. Sessions Judge's Opinion. The learned Sessions Judge in an elaborate judgment discussed the legal aspects of the case and also considered certain apparently conflicting rulings, and then came to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the execution of his duty as a servant of the Crown cannot by any stretching of the English language be made to apply to an act which is clearly a dereliction of his duty as such. 31. But if an act has purported to be done in execution of duty, it may be done so, only ostensibly and not really, and if done dishonestly may still be a dereliction of duty. The High Court Bench have taken the view that the Section is clearly meant to apply to an act by a public servant which could be done in good faith, but which possibly might also be done in bad faith...The Section cannot be meant to apply to cases where there could be no doubt that the act alleged must be in bad faith. 32. So far as Sub-section (1) is concerned, the question of good faith or bad faith cannot strictly arise, for the words used are not only any act done in the execution of his duty but also any act purporting to be done in the execution of his duty. When an act is not done in the execution of his duty, but purports to have been done in the execution of his duty, it may very well be done in bad faith; and even an act which cannot at all be done in good faith may purport to be done in execution of duty if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting. 34. The Section is not intended to apply to acts done purely in a private capacity by a public servant. It must have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes a criminal breach of trust by a public servant under Section 409. The question whether a criminal breach of trust can be committed while purporting to act in execution of duty is not capable of being, answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalized way has been responsible for loose language used in some of the cases cited before us. It is possible to conceive of a case where a criminal breach of trust may be committed in conspiracy with other servants and payment of money is dishonestly ordered ostensibly in execution of duty. The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case. 37. The first charge was worded generally that the accused had committed a criminal breach of trust in respect of certain specified medicines, but no objection appears to have been taken to it, no could this defect be urged seriously in view of the provisions of Section 221(5), Criminal P C If the present case had merely been that medicines were openly removed from the hospital dispensary to the house on some pretenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 477-A, though not for that under Section 409, I.P.C. Joint Trial 39. The last question is whether the whole proceedings should or should not be quashed on account of the joint trial. Under Section 235(1), Criminal P C two offences for one series of acts so connected together as to form the same transaction can be tried at one trial. The offences of criminal breach of trust and falsification of account were so connected. The difficulty is caused by the circumstance that for one of these offences previous consent of the Governor was a condition precedent to the exercise of the Magistrate's jurisdiction. There is no specific provision in the Code to cover the present case exactly. In a case of jury trial, I would have had no hesitation in holding that the whole trial was illegal inasmuch as the accused would have been gravely prejudiced by the production of evidence relating to the offence under Section 477-A for which the Court had no jurisdiction at all to try the accused. But this case was tried by a Magistrate before whom no objection regarding the want of consent appears to have been taken. Under Section 537, Criminal P C the Appellate Court before altering the order re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al P C and other Sections in that Chapter, and also Clause 41 of the Letters Patent of the Chartered High Courts. Unlike Section 206, Constitution Act, Section 205 is not in terms limited to civil cases; and it is worth noting that Section 210(2) places orders of this Court on the same footing as orders made by the Highest Court exercising civil or criminal jurisdiction, as the case may be. As no objection has been taken on behalf of the Crown to the maintainability of the appeal, I proceed to deal with the case on the assumption that the appeal was competent. 42. In view of the course of the argument before us, it is necessary to refer in some detail to the nature of the charges against the appellant. He had for many years been a Sub-Assistant Surgeon in the Punjab Provincial Subordinate Medical Service. In March 1937, when he was in charge of the rural hospital at Mithankot, he was suspected of dishonestly removing to his own quarters certain medicines belonging to the hospital. He was at that time under orders of transfer to a new station and was arranging to hand over charge shortly to his successor. Acting on a report sent by the compounder of the hospital to the Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquittal; but, so far as this appeal is concerned, nothing turns on this matter of form. 45. The Crown appealed to the High Court at Lahore against the order of acquittal; and a Division Bench (Sir Douglas Young C.J. and Blacker J.) set aside the order; and returned the records to the Sessions Court, for disposal of the appeal on the merits. The learned Judges do not seem to have felt any hesitation at that time in holding that Section 270(1) could not apply to the case. It does not appear whether, at the hearing of the appeal, their attention was drawn to the conflicting rulings under Section 197, Criminal P. C. When the appellant applied for a certificate under Section 205, Constitution Act, the attention of the High Court seems to have been drawn to some of these decisions and the learned Judges granted the certificate, with the observation that it might be possible to found on them an argument that the consent of the Governor was necessary in a case like the present. The appellant, who appeared in person before us, invited us to deal with the whole case on the evidence; but, in the absence of special reasons, we saw no justification for doing so. He next contended that as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to allege that the appellant dishonestly misappropriated or converted to his own use property which had been entrusted to him in his official character. It is not clear from the record whether the proceedings in this case were initiated by a complaint or by a police report; but taking into account all the materials which appear to have been collected before the proceedings were instituted, I am of the opinion that so far as the charge under Section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty. 47. The learned Judges have dealt with both the charges, i.e. the one under Section 409 and the other under Section 477-A, as on the same footing; it however seems to me necessary to draw a distinction, for the present purpose, between the charge under Section 409 and the charge under Section 477-A. Though a reference to the capacity of the accused as a public servant is involved both in the charge under Section 409 and in the charge under Section 477-A, there is an important difference between the two cases, when one comes to deal with the act complained of. In the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elimit the scope of the Section. The question does not seem to have arisen for decision under Section 270(1), Constitution Act; we were accordingly referred by way of analogy to a number of rulings under Section 197, Criminal P C and one or two decisions under Section 80, Civil P C The judgment in 26. Bai Mahal Panday v. Maung Po Sein (1938) 25 A I R Rang 189 dealt with a provision corresponding to Sub-section (2) of Section 270 and throws no light on the present question. 49. The reported decisions on the application of Section 197, Criminal P C are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each case; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language of similar statutory provisions:in Booth v. Olive (1851) 10 C.B. 827 It does not seem to me necessary to review in detail the decisions given under Section 197, Criminal P C which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut not for prosecuting him under Section 330. In the Calcutta case,85 a trader sued a police officer for recovery of two sums of money, namely ₹ 50 being damages for wrongful arrest, and ₹ 75 being the amount alleged to have been extorted by the police officer from the plaintiff. As regards the second head of Claim, the learned Judges were of opinion 'that no notice under Section 80, Civil P C was necessary, as nobody could suppose that he was purporting to act in his official capacity in demanding and obtaining the sum of ₹ 75. 51. Should it however be assumed that the true import of Section 197, Criminal P C was that stated in the passage from Mitraquoted in 52 Mad 602,33 I must observe that, in that view, that Section cannot be treated as bearing a true analogy to Section 270(1), Constitution Act. The( latter Section does not use the expression while acting etc., but makes it clear that the act complained of should have been done or should purport to have been done in execution of official duty it does not even say in the course of such duty. There are, in my opinion, strong reasons against placing an unduly wide interpretation on this provision. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to a public officer who had acted mala fide in the discharge of his duty. Sir John Wallis. quoted Baron Parke's observation in Kirby v. Simpson (1854) 10 Ex 358 to the effect that a person may act maliciously and yet in the execution of his office. Sadasiva Iyer J. stated (on p, 811) that the question of the good faith on the bad faith of the public officer...is irrelevant at that stage. The Madras decision was followed by the Calcutta High Court in 50 Cal 992. 53. Again, towards the conclusion of the judgment under appeal, the learned Judges observe that the words act done or purporting to be done in the execution of his duty cannot by any stretch of the English language be made to apply to an act which is clearly a dereliction of his duty. The word dereliction may reasonably include negligence in discharging a duty. But, it seems to me that an act is not less one done or purporting to be done in execution of a duty because the officer concerned does it negligently. In my opinion, the order of the High Court should be modified by quashing the proceedings against the appellant so far as the charge under Section 477-A, Penal Code, is concerned and directing the Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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