TMI Blog1954 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court was dismissed summarily on 25-8-1953 with the one word dismissed . The first and third accused appealed separately. Their appeal was heard by another Bench and was admitted, and a reasoned judgment followed on 23-11-1953. This, to say the least, was, in the circumstances of this case, anomalous. The appeals arise out of the same trial and are from one judgment and relate to the same charge to the jury, and what is more they raise substantially the same points. This Court was constrained to express its disapproval of the summary rejections of appeals which raise issues of substance and importance. We draw attention to the remarks in Mushtak Hussein v. The State of Bombay [1953]4SCR809 . Those observations apply with even greater force in the present case. 3. The three accused are Government servants. At all material times, the first was the Officer Commanding the Military Engineering Stores Depot at Dehu Road near Poona. He was in over-all charge. The second was under him as the officer in charge of the Receipts and Issue control section. The third worked directly under the second as the Assistant Stores Officer. 4. The depot is maintained by the Central Government an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The Court then made the following order on 10-7-1953 : Thus, though a joint trial for offence under section 5(2) of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid, I think, in view of the circumstances mentioned above, it would be in the interest of justice and also in the interests of the accused themselves if the trial for the offence under section 5(2) of the Prevention of Corruption Act is separated. I therefore grant the application to this extent and order that the charge should be amended accordingly . 10. In view of this the charges were re-framed on 11-7-1953. The only difference of substance is that the charge under section 5(2) was dropped. The others remained. 11. Now it will be observed that the accused are all public servants and they contend that as, according to the prosecution, they purported to act in the discharge of their official duties, sanction was necessary under section 197 of the Criminal Procedure Code. There is sanction so far as the first accused is concerned but the second accused contends that there is none in his case to justify the present trial, so his trial, conviction and sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er punishment. 15. The question then is who is to do the choosing. Under section 197 of the Code of Criminal Procedure the Governor-General was at that date the sanctioning authority though the words exercising his individual judgment had by that time been deleted. Under the Prevention of Corruption Act the sanctioning authority was the Central Government . Now it may well be that the two mean the same thing because of section 8(a) of the General Clauses Act but that makes no difference at the moment. The fact remains that either one, or two, Government authorities were given the right, and invested with the duty, of making an election. They had the right to say whether a certain class of public servant who had committed criminal breach of trust should be tried for that offence under section 409 of the Indian Penal Code in the ordinary courts of the land according to the normal procedure obtaining there and be subject to a maximum penalty of ten years plus an unlimited fine or be tried for the same offence under another name in a special court by a special procedure and be subject to no more than seven years plus a fine which is also unlimited. 16. At this stage of the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no part of this accused's official duties to permit an unauthorised removal of the goods : therefore, when he allowed that he neither acted, nor purported to act, in the discharge of his official duties. Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley v. The King-Emperor: [1944] F.C.R. 262, where Zafrullah Khan, J. held that it must be established that the act complained of was an official act , and to the observations of Varadachariar, J. in Hori Ram Singh v. The Crown [1939] F.C.R. 159, where, dealing with section 409 of the Indian Penal Code, he says - 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 first, the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of . 19. What this argument overlooks is that the stress in the passage quoted is on the word nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done : in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it. 24. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus wilfully suffer another person to use them dishonestly : section 405 of the Indian Penal Code. In both cases, the offence in his case would be incomplete without proving the official act. 25. We therefore hold that section 197 of the Code of Criminal Procedure applies and that sanction was necessary, and as there was none the trial is vitiated from the start. We therefore quash the proceedings against the second accused as also his convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal act is done by several persons......... It is essential that they join in the actual doing of the act and not merely in planning its perpetration. The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh v. The King-Emperor. At page 52, he explains that participation in action is the leading feature of section 34. And at page 53 in explaining section 114 of the Indian Penal Code, he says - Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of section 34 . 29. At page 55 he says about section 34 that - participation and joint action in the actual commission of crime are, in substance, matters which stand in antithesis to abetments or attempts . 30. The misdirection is plain and it goes to the root of the matter because the jury returned a verdict of guilty under section 409 of the Indian Penal Code read with section 34 alone and not under section 409 read with section 109. 31. It is part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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