TMI Blog1948 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for the issue and acceptance of tenders for purchase of material in compliance with indents made by the proper authorities. 4. The appellant Lahiri is the proprietor of the Baranagoro Engineering Works. In that capacity he obtained numerous contracts for supplying Government requisites through the appellant Gill and other officers. 5. As a result of secret enquiries which, for reasons that need not be further investigated, the Deputy Superintendent of Police, Calcutta, thought fit to make into the affairs of Gill, it was found that Gill had on 21-5-1941, received from Lahiri a cheque for ₹ 500. A search warrant was then obtained for the search of Lahiri's house. The warrant was executed on 11-10-194,2, and the police took possession of a diary kept by Lahiri and of the counterfoils of his cheque book in which there were notes purporting to refer to Gill in the handwriting of Lahiri. Upon these materials with others to which reference will be made it was determined that criminal proceedings should be instituted against Gill and Lahiri and accordingly steps were taken to obtain what were thought (so far as Gill was concerned) to be the necessary consent and san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the consent of the Governor-General under Section 270 was given to the institution of proceedings against Gill in the following terms: Under Section 270(1), Government of India Act, 1935, I, Victor Alexander John Marquesa of Linlithhgow acting in my discretion consent to the institution of criminal proceedings against Major H.H.B. Gill formerly Deputy Controller of Purchase, Supply Department Calcutta for having committed during the years 1941 and 1942 offences punishable under Section 161 and Section 120B read with Section 420, Penal Code. 6. On 3-2-1943, sanction of the Governor-General in Council under Section 197, Criminal P.C. was given in similar terms. 7. It is to be observed that the sanctions refer to offences punishable under Section 161 and Section 120B read with Section 420, Penal Code. and it is convenient here to set out these sections together with Section 120A and Section 165, Penal Code, which are also relevant: 120A. - Definition of Criminal Conspiracy,- When two or more persons agree to do, or cause to be done- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but include all remuneration which he is permitted by the Government, which he serves, to accept. A motive or reward for doing : A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words. Section 165 : Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself, or for any other person, any valuable tiling without consideration or for a consideration which he knows to be inadequate: from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate; or from any person whom he knows to be interested in or related to the person so concerned; shall be punished with simple imprisonment for a term which may extend to two years, or with fine or with both. Section 420. - Cheating and Dishonestly Inducing Delivery of Property. - Whoever cheats and thereby dishonestly induces the person decei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gas Respirator Spring Compressor No. 3 and you thereby committed an offence punishable under Section 161, Penal Cede and within my cognizance. 3. Against Lahiri only. That you on or about 21-5-1941, at Calcutta abetted Major H. H. B. Gill in the commission of the offence under Section 161, Penal Code by paying him ₹ 500 by cheque (Exhibit 4) as gratification other than legal remuneration for showing, in the exercise of his official functions as Deputy Controller of Purchase, favour to your firm Baranagore Engineering Works in the matter of the contract for the supply of Anti-gas Respirator Spring Compressor No. 3, which offence was committed in consequence of your abetment and you thereby committed an offence punishable under Section 109 read with Section 161, Penal Code, and within my cognizance. 10. It has not been disputed that these charges at least were framed strictly in accordance with the consent and sanction given. It has, however, been urged by learned Counsel for Gill that it was not competent for the Magistrate to try the appellants upon any other charges or for any other offences. To this matter their Lordships will recur. 11. On 29th June 1948, bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The separate charges under Section 161 and Section 161/109 (which related to the cheque for ₹ 500) were retained unaltered. 15. Upon these charges, old and new, Gill and Lahiri were duly tried. A large number of witness gave evidence for the prosecution. Both Gill and Lahiri were examined by the learned Magistrate under Section 342, Criminal P.C. while Gill also it put in written statement and an additional written statement. Amongst the evidence adduced by the prosecution and admitted by the Court were the diary and cheque counterfoils and notes to which reference has already been made. That these documents, which will be compendiously referred to as Lahiri's notes , were evidence against Lahiri is not denied. Nor is it to be denied that they would be at least cogent evidence against Gill, if against him they were admissible. The question which must be present-considered is whether they are admissible against him. 16. On 13th August 1945, the Chief Presidency Magistrate gave judgment, and, in view of the importance which upon one part of the case this matter has assumed, it is relevant to note how he dealt with Lahiri's notes. These payments , he said, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the entries in the counterfoils are explicable only on the hypothesis that Lahiri gave the amounts mentioned to Gill and we agree therefore with the learned Magistrate's finding that the conspiracy is established. This makes it clear that Lahiri's notes were admitted as evidence not only against Lahiji but also against Gill on the conspiracy charge, and the question at once arises upon what ground they were so admissible. 18. The High Court also had to consider the questions of general importance indicated earlier in this judgment. They were; (1) whether sanction was necessary to the institution of proceedings against Gill and (2) assuming that it was necessary whether the sanctions in fact given justified cognisance being taken of the altered charges under Section 161 read with Section 120-B and further whether in any event sentence for an offence under Section 165 read with Section 120-B could be justified. 19. Upon these questions the High Court, held (a) that sanction was not necessary under Section 270, Government of India Act, (b) that sanction was necessary under Section 197, Criminal P.C., but that (c) the sanction in fact given was sufficient to cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with the question of a new or altered charge in cases where sanction is necessary, but their Lordships do not doubt that it was this section (amongst others) that the Court had in mind. 24. Finally the Court dealt with the competence of the Magistrate to record a conviction, under Section 120B read with Section 165 when the charge was for an offence under Section 120B read with. Section 161 and after a close analysis of the relevant offences held that under Section 238 of the Code such, a course was justified. 25. The Court stated that no other issue was raised before it. This statement was challenged by counsel for the appellants who urged that at, any rate an attempt had been made to argue the question arising upon the admissibility of evidences to which reference has been made. 26. From the order of the Federal Court, an appeal has by special leave been brought and has now to be considered by their Lordships and they would first observe that, inasmuch as there was not (as is sometimes done) any special limitation imposed upon the subject-matter of appeal, it must be open to the appellants to rely upon any ground of appeal which would normally be open to them. They d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. 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. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of |the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited think it sufficient to say that in their opinion no sanction under Section 197, Criminal P.C., was needed. 31. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Gill and Lahiri had conspired to commit the offence which was the subject of that charge, so that, under Section 10, Evidence Act, the notes made by Lahiri were admissible in evidence against Gill. That section, so far as relevant, provides that, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by one of them, is a relevant fact against each of the persons believed to be so conspiring, as well for the purpose, of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. But it must be observed (a) that apart from the evidence relevant to the specific charge there was no other competent evidence upon which such a reasonable ground for belief could be rested and (b) that the notes were clearly not admissible against Gill unless Section 10 could be invoked. It was plainly admitted by counsel for the respondent that it was upon Section 10 only that he relied for the admission of such evidence, though it is not clear what course ..... X X X X Extracts X X X X X X X X Extracts X X X X
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