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Shivkali Goswami Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1944All257
AppellantShivkali Goswami
RespondentEmperor
Excerpt:
- - the tribunal delivered a remarkably good judgment in the course of which it subjected the evidence both for the prosecution and for the defence to a critical examination and marshalled the facts with conspicuous ability. 3. sir tej bahadur sapru who appeared for the applicant assailed the conviction of the applicant, firstly, on the ground that the ordinance was ultra vires the ordinance, making authority of the governor-general, and, secondly, he urged that the conviction was bad in law as it was based on inadmissible evidence. ' clause 85 authorizes the indian legislature as well as the governor. the consideration of an application in revision like the present must, therefore, be approached on the assumption that the jurisdiction conferred by section 8 exists. in the first place,.....iqbal ahmad, c.j.1. this is an application in revision by sheokali goswami against his conviction under section 161, penal code, by a special tribunal constituted under ordinance 29 of 1943. the tribunal sentenced the applicant to 2 1/2 years' rigorous imprisonment and a fine of ns. 500. in default of the. payment of fine, the applicant was ordered to undergo rigorous imprisonment for a further term of six months.2. the applicant was posted as chief goods clerk at shahjahanpur railway station and the charge against him was that he on 15th july 1943, when posted as chief goods clerk and thus directly concerned in that capacity with transport of goods, in his capacity as a public servant as such, obtained rs. 100 as illegal gratification from one abdul hakim in respect of five wagons,.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an application in revision by Sheokali Goswami against his conviction under Section 161, Penal Code, by a Special Tribunal constituted under Ordinance 29 of 1943. The tribunal sentenced the applicant to 2 1/2 years' rigorous imprisonment and a fine of ns. 500. In default of the. payment of fine, the applicant was ordered to undergo rigorous imprisonment for a further term of six months.

2. The applicant was posted as chief goods clerk at Shahjahanpur railway station and the charge against him was that he on 15th July 1943, when posted as chief goods clerk and thus directly concerned in that capacity with transport of goods, in his capacity as a public servant as such, obtained Rs. 100 as illegal gratification from one Abdul Hakim in respect of five wagons, booked for Abdul Hakim, in June and July 1943, for transport of bones, and thereby committed an offence punishable under Section 161, Penal Code. Even though the offence was alleged to have been committed in the province of Agra, the applicant was, in view of the provisions of Ordinance 29, tried by a Special Tribunal at Lahore. The tribunal, in conformity with the provisions of Section i of the Ordinance, consisted of three members, one of whom was an officer of His Majesty's forces and was a barrister of not less than five years' standing and one at least of the remaining two members was qualified for appointment as a Judge of the High Court. The tribunal delivered a remarkably good judgment in the course of which it subjected the evidence both for the prosecution and for the defence to a critical examination and marshalled the facts with conspicuous ability. It arrived at the conclusion that the charge was brought home to the applicant and accordingly convicted him.

3. Sir Tej Bahadur Sapru who appeared for the applicant assailed the conviction of the applicant, firstly, on the ground that the Ordinance was ultra vires the ordinance, making authority of the Governor-General, and, secondly, he urged that the conviction was bad in law as it was based on inadmissible evidence. The validity of the Ordinance was challenged on two alternative grounds. It was contended that the Ordinance was ultra vires because it contravened the provisions of the Letters Patent which constituted this High Court as a Court of criminal appeal and criminal revision and, in this connexion, it was urged that the power vested in the Governor-General by Section 72 of Schedule 9, Constitution Act, is not wide enough to justify interference with the criminal jurisdiction exercised by this Court under the Letters Patent. In the alternative he impugned the validity of Section 8 of the Ordinance which gives revisional jurisdiction to this Court on the ground that the jurisdiction thus conferred was in excess of the revisional jurisdiction conferred by the Letters Patent, and maintained that the provisions enacted by Section 8 being inseparable from the other provisions contained in the Ordinance, the whole Ordinance was ultra vires. In my judgment there is no force in these contentions.

4. The Ordinance was, as declared by the preamble, made and promulgated with a view to provide 'for the more speedy trial and more effective punishment of certain offences punishable under the Indian Penal Code.' By the Ordinance the Central Government was empowered to constitute two Special Tribunals one to sit at Calcutta and the other at Lahore (Section 3) and the cases triable by the tribunals were specified in Section 5. It is clear from Section S read with Schedule 1 of the Ordinance that the jurisdiction conferred on the tribunals was limited in its scope and was confined only to the cases specified in Schedule 1. The procedure to be followed by the tribunals was prescribed by Section 6 and Section 7 barred an appeal against any order or sentence of a Special Tribunal. Revisional jurisdiction on the High Courts was, however, conferred by Section 8 which runs as follows:

8. Revision. - The High Court within the local limits of whose jurisdiction the offence charged in a case before a Special Tribunal is alleged to have taken place may, in relation to that case, exercise, so far as they may be applicable, all the powers conferred by Chap. 32, Criminal P.C., 1898 (5 of 1898), on a High Court, as if the Special Tribunal were a Court of Session situate within the local limits of that High Court's jurisdiction.

5. The rest of the provisions of the Ordinance are immaterial for our present purposes. It is manifest that the Ordinance does, with respect to the cases triable by the tribunals, amend the provisions of the Criminal Procedure Code in important respects, viz., as regards the place of trial (chap. 15), as regards appeals (chap. 31) and as regards the procedure pre. scribed by the Code. The validity of the Ordinance is not and cannot, however, be assailed on this ground. The Criminal Procedure Code is an Act passed by the Indian Legislature and that Legislature is fully competent to in any way alter, amend or repeal the provisions of that Code either in their entirety or with respect to specified class of cases. It is conceded that the ordinance-making authority of the Governor-General is co-extensive with the powers of the Indian Legislature to make laws. It follows that the Governor-General was competent to make and promulgate the Ordinance in question. But, as stated before, it is argued that the Ordinance runs counter to Clauses 20 and 21, Letters Patent, and is therefore invalid. Clause 20 provides that the

High Court of Judicature at Allahabad shall be a Court of appeal from the criminal Courts of the said territories...,

Clause 21, Letters Patent, ordains that

the said High Court shall be a Court of reference and revision from the criminal Courts subject to its

appellate jurisdiction....

The Ordinance does not in any way, in my judgment, run counter to Clauses 20 or 21. Those clauses constitute this Court as a Court of appeal or a Court of revision from the criminal Courts exercising jurisdiction within the territorial limits of the jurisdiction of this Court. The tribunal sitting at Lahore was not a Court subordinate to this Court. There is, therefore, no escape from the conclusion that the Ordinance does not in any way curtail the appellate or the revisional jurisdiction of this Court. Apart from this, Clause 35, Letters Patent, furnishes a complete answer to the contention advanced on behalf of the applicant. That clause ordains and declares that all the provisions of the Letters Patent

'are subject to the legislative powers of the Governor-General in Legislative Council...and also of the Governor-General in cases of emergency under Section 72' of the Constitution Act, 'and may be in all respects amended and altered thereby.'

Clause 85 authorizes the Indian Legislature as well as the Governor. General to amend and alter the provisions of the Letters Patent 'in all respects.' It follows that the Governor-General is empowered by Clause 85 to amend or alter the provisions of Clauses 20 and 21, Letters Patent. The matter may be looked at in another way. Clauses 20 and 21 constitute this Court as a Court of appeal and revision from the criminal Courts in the province of Agra. These clauses are, however, silent as to the class of cases in which the appellate or the revisional powers can be exercised. Provision in this respect is made by the Criminal Procedure Code which specifies the class of cases in which this Court can exercise its appellate or revisional jurisdiction. In other words, the Letters Patent does no more than to constitute this Court as a Court of criminal appeal and a Court of criminal revision, and provision as to the cases in which and the extent to which the appellate or the revisional jurisdiction can be exercised by this Court is made by the Code which is an Act passed by the Indian Legislature. The Indian Legislature and the Governor-General are therefore vested with the power to extend or to limit the scope of the appellate or revisional jurisdiction of this Court.

6. It was, however, argued that Section 8 of the Ordinance was invalid as it conferred revisional jurisdiction on this Court in excess of such jurisdiction given by Clause 21, Letters Patent. Clause 21 ordains that this Court shall be a Court of revision 'from the criminal Courts subject to its appellate jurisdiction,' whereas Section 8 of the Ordinance confers revisional jurisdiction over a tribunal that was not subject to the appellate jurisdiction of this Court. It must, therefore, be held that the jurisdiction given by Section 8 does, as regards a limited number of cases, expand the revisional jurisdiction of this Court, but this the Governor-General was, in view of the provisions of Clause 85, Letters Patent, fully competent to do. For the reasons given above, I bold that the Ordinance is intra vires the ordinance-making authority of the Governor-General and Section 8 of that Ordinance embodies a valid and binding provision of law.

7. Before proceeding to deal with the contention advanced on behalf of the applicant relating to the merits of the case I must notice a point that was raised during the arguments of the applicant's counsel. It was suggested that as, according to the applicant's contention, Section 8 of the Ordinance was invalid, this Court could not entertain the application in revision and must, therefore, summarily dismiss the same. I find it impossible to assent to this proposition. Section 8 must be presumed to be valid and operative unless the contrary is shown. The consideration of an application in revision like the present must, therefore, be approached on the assumption that the jurisdiction conferred by Section 8 exists. It must therefore be assumed that it is within the competence of this Court to exercise its revisional jurisdiction in cases covered by the Ordinance, and the application of the applicant cannot be summarily dismissed on the ground that this Court has no revisional jurisdiction, even though such an argument was advanced on behalf of the applicant.

8. I now proceed to deal with the second contention urged on behalf of the applicant. Sir Tej argued that certain letters to which reference was made in the course of its judgment by the tribunal were inadmissible in evidence, and, as such, the finding of the tribunal should be reversed. In the first place, I am not satisfied that the letters were wrongly admitted in evidence and in the second place I consider that, even apart from those letters, there was ample evidence on the record to justify the finding of the tribunal. I, therefore, cannot give effect to this contention. It is to be remembered in this connexion that the matter is before this Court not as an appeal but as an application in revision and this Court, according to its well-established practice, does, in the exercise of its revisional jurisdiction, usually accept the findings on questions of fact recorded by a subordinate tribunal, unless the finding is manifestly perverse or patently erroneous. The revisional powers of this Court are no doubt wide, but they are discretionary and must be exercised not as a matter of course but only where it is demanded in the interest of public justice. As I am satisfied that the applicant was rightly convicted and the sentence passed on him was appropriate I would dismiss this application. The applicant's counsel requested this Court to grant a certificate under Section 205, Government of India Act. I am unable to accede to this request. No question of law as to the interpretation of any provision of the Constitution Act was raised before us. All that was contended was that the Ordinance in question was inconsistent with the Letters Patent. This contention involved the consideration I not of the provisions of the Government of India Act but of the provisions of the Letters Patent. The case, therefore, does not fall within the purview of Section 205, Constitution Act. In any case no substantial question of law as to the interpretation of any of the provisions of the Constitution Act is involved, and, as such, I would refuse to grant the certificate prayed for.

Allsop, J.

9. It is unnecessary for me to reiterate the facts which have been sufficiently stated in the judgment of the Hon'ble the Chief Justice. As for the argument that Ordinance 29 of 1943 is invalid I am of opinion that it is irrelevant to these proceedings. The only relevant allegations which can be made by any person who is seeking relief from any Court are those which would, if established, justify the Court in granting his prayer. In this case the allegation that Ordinance 29 of 1943 is invalid would, if established, justify us only in rejecting the applicant's prayer because apart from the Ordinance we could have no possible jurisdiction to interfere with the result of a trial held in Lahore. The only way in which the applicant can mention the point is by way of precaution, that is by way of a statement that his prayer to us for relief is without prejudice to any claim that he may make elsewhere or in other proceedings that the Ordinance is invalid and his trial and conviction a nullity. The Crown which could rely upon this allegation to question our jurisdiction has not done so. The learned Government Advocate maintains the validity of the Ordinance and agrees that we may exercise our revisional powers if we think that the facts justify our interference. Perhaps I can make the position clearer by pointing out that the validity of the Ordinance in our Court can be relevant only to the issue of our jurisdiction, which has not been raised, and cannot be relevant to the issue of the validity of the proceedings before the tribunal because this second issue cannot arise before us at all until we have assumed jurisdiction and we cannot assume jurisdiction without holding that the Ordinance is valid. If the applicant wishes us to assume jurisdiction he must of necessity ask us to hold that the Ordinance is valid because he cannot invoke our aid on any other ground. He cannot in the next breath ask us to hold that the proceedings of the tribunal were a nullity on the contradictory ground that the Ordinance is invalid. For the purpose of this application, he must assume that the Ordinance is valid whatever he may assert elsewhere. That assumption is not controverted by the other side and, therefore, it seems clear to me that the validity of the Ordinance is not properly within our province in these proceedings.

10. Subject to these remarks I may, however, express my opinion on the argument which has in fact been addressed to us. The proposition asserted was that the Governor-General had no power under Section 72, Government of India Act, 1915, (still in force under Schedule 9, Government of India Act, 1985) to make an Ordinance contrary to the provisions of our Letters Patent. It will be necessary to examine the truth of this proposition only if Ordinance 29 of 1943 is in fact contrary to the provisions of our Letters Patent. Clause 35, Letters Patent, ordains and declares that the provisions contained in them are subject to the legislative powers of the Governor-General under Section 72, Government of India Act, and may be in all respects amended and altered thereby. It would appear, therefore, on the face of the matter that the Ordinance is not contrary to the provisions of the Letters Patent. It was further argued, however, that the power to amend and alter does not include the power to repeal or completely to abrogate. In view of the provision that the Letters Patent are subject to legislation this proposition may or may not be true but it is unnecessary to go into that question because the Ordinance does not purport to repeal or completely to abrogate the Letters Patent or even to repeal or completely to abrogate the two sections which deal with appellate and revisional jurisdiction. It purports only to amend or alter our appellate and revisional jurisdiction in respect of certain particular cases out of a small class of those which deal with offences punishable under a few sections of the Penal Code. The Ordinance clearly does not purport to do anything which is contrary to our Letters Patent and it is, therefore, unnecessary to consider whether it would have been outside the powers of the Governor-General if it had purported to do so.

11. Learned Counsel has next invited us to intervene upon the ground that the tribunal was wrong in its finding of fact and that the applicant was not guilty. In this connexion it is as well to emphasize the point that we are acting not as a Court of appeal but in exercise of our powers of revision. There is a clear distinction between appellate and revisional jurisdiction. The former is derived from a right conferred upon some particular person to demand an adjudication upon any question of law or fact which he is authorised to raise in appeal. The latter is derived from a discretion vested in the Court to intervene in any criminal matter to prevent a substantial miscarriage of justice. It may be inferred that any person may bring a case of apparent injustice to the notice of the Court with a view to its intervention but no such person acquires any right to require the Court to determine any question of law or fact. Under Section 440, Criminal P.C., he has not even the right to be heard in person or by pleader. The accused is in no better position than any other person and indeed in one sense is in a worse position because he cannot even bring his case to our notice if he has had a power of appeal and has not exercised it. There is the further fact that it is our duty to administer the law as laid down by the Legislature and we must be careful to exercise our powers of revision in such a way that we do not render nugatory any provision that there shall be no appeal from the decision of an inferior Court. It has, therefore, been our settled practice not to interfere with decisions of fact unless we are satisfied that they are perverse or clearly indefensible. It is evident also from the provisions of Section 537, Criminal P.C., and Section 167, Evidence Act, that it was the intention of the Legislature that Courts should not interfere with decisions on the ground of mistakes in adjective law unless those mistakes had caused in any case a substantial failure of justice and, quite apart from these provisions, it has always been my view that we should exercise our discretion not to examine such questions or hear parties upon them in detail unless we are supplied prima facie with some reason for thinking that a substantial wrong has been caused.

12. Having considered the arguments addressed to us in the light of these observations, I have come to the conclusion that there is no ground for intervention on our part. Learned Counsel argued that the tribunal had acted on two kinds of inadmissible evidence, namely evidence that the accused had taken bribes on previous occasions and evidence that the person who paid the bribe had complained in letters written at the time that bribes were being demanded from him. The former type of evidence would seem to be admissible under the rule, embodied in Section 14, Evidence Act, that similar facts are relevant to an issue of intention or other state of mind although they cannot be used to prove the commission of physical acts, the latter would seem to be admissible as corroboration of the statement of the witnesses subsequently made in Court, but there was other direct evidence which there is no reason to suppose the tribunal would have disbelieved without corroboration. After reading the judgment and seeing the explanation given by the accused I am satisfied that substantial justice was done. I, therefore, concur in the order proposed by the Hon'ble the Chief Justice that the application should be rejected. I have held firstly that the question whether the Ordinance is valid is not relevant to these proceedings and, secondly, if it does arise, that it must be decided against the applicant not because the Governor-General has powers under some section of the Government of India Act which the applicant denies him but because the Governor-General has not in fact done or purported to do what the applicant alleges that he has done. If any document requires interpretation it is our Letters Patent or the Ordinance and not the Government of India Act. I, therefore, agree that we cannot certify that this is a proper case for appeal to the Federal Court under Section 205 of the latter Act.

Dar, J.

13. The petitioner, who was the chief goods clerk of the East Indian Railway Station at Shahjahanpur, was charged with taking Rs. 100 as bribe on 15th July 1943, in relation to five wagons of bones which were booked from Shahjahanpur to Cawnpore on five different dates in June and July 1943 and was tried by a special tribunal constituted under the Criminal Law Amendment Ordinance (29 of 1943), hereinafter called the Ordinance, at Lahore and was found guilty of an offence under Section 161, Penal Code, and was sentenced to rigorous imprisonment for 2 1/2 years and to pay a fine of Rs. 500. Under Section 8 of the Ordinance, he has made this revision in which he challenges his conviction on the ground that the Ordinance is ultra vires and his conviction is without jurisdiction and is based upon inadmissible evidence and misappreciation of evidence. The Ordinance is attacked on the ground that it conflicts with Clauses 20 and 21, Letters Patent, which confer and define the appellate and revisional jurisdiction of this Court. It is contended that by the Ordinance certain specified offences committed within the jurisdiction of this Court by certain specified persons are made triable at a place outside the jurisdiction of this Court and the appellate jurisdiction of this Court, which extended with regard to the offences committed within the jurisdiction of this Court, has been taken away by the Ordinance and has been replaced by a revisional jurisdiction which extends outside the territories specified in the Letters Patent, and the change which has thus effected virtually amounts to the repealing of appellate and revisional jurisdiction of the High Court conferred by the Letters Patent. Clause 35, Letters Patent, provides:

And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council, and also of the Governor-General in Council under Section 71, Government of India Act, 1915, and also of the Governor-General in cases of emergency under Section 72 of that Act and may be in all respects amended and altered thereby.

14. It is not disputed that in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act, 1935, the Governor-General has power to amend and alter the Letters Patent. But it is contended that the power to amend and alter does not carry with it a power to repeal the Letters Patent and the Ordinance does not amend or alter the Letters Patent, but virtually repeals Clause 32 and 33, Letters Patent. Again, it is not disputed that it was open to the Governor-General to transfer certain specified cases which were pending for trial in criminal Courts of this province to criminal Courts outside the province. And it is also not disputed that it was open to the Governor-General to set up a Special Tribunal outside the province for trial of such cases. The Ordinance does no more than this; it enacts that certain specified offences committed by certain specified persons within the jurisdiction of this Court shall be tried at Lahore by a Special Tribunal. This does not in any way repeal the appellate or the revisional jurisdiction of this Court, though it enlarges the revisional jurisdiction of this Court in regard to certain cases which might not have been within its jurisdiction but for the Ordinance. And in so far as the Ordinance changes the place of trial of certain offences and makes certain persons triable by a Special Court and takes away from them a right of appeal to this Court, it cannot be said that by doing so the Ordinance repeals the Letters Patent, wholly or partially, or does anything which is not sanctioned by Clause 35, Letters Patent.

15. It is intended that the petitioner having raised the plea that the whole Ordinance was ultra vires, including Section 8 of the Ordinance, which gives revisional jurisdiction to this Court, the petition should be dismissed on the preliminary ground that no Court could grant relief to a person, who denies the jurisdiction of the Court and the power to grant the relief. This argument, in my opinion, proceeds upon a misapprehension of the relief which the petitioner seeks in this revision. The petitioner does not deny that this Court has power to quash his conviction on the ground that the Ordinance was ultra vires and the Special Tribunal had no jurisdiction to hold a trial or to convict him. It is true that it is a necessary consequence of this contention that Section 8 of the Ordinance which gives revisional jurisdiction to this Court is also ultra vires. But it does not follow from this that this Court has no jurisdiction to quash the conviction, if it comes to the conclusion that the Ordinance was ultra vires. Nor does it follow from this that the petitioner having raised the plea of want of jurisdiction cannot raise other pleas to secure the reversal of his conviction, if his objection to jurisdiction is found to be untenable.

16. The procedure of high prerogative writs by which wrong or excessive exercise of jurisdiction of Special Tribunals and of statutory bodies can be prohibited or corrected is not available in this country. To a person called upon to meet a charge before a Special Tribunal in this country, the only place where a plea of jurisdiction can be taken is the Special Tribunal itself and law must imply in the Special Tribunal an implied power to determine questions relating to its own jurisdiction. It cannot be disputed that it was open to the petitioner to raise the plea of jurisdiction before the Special Tribunal, when he was called upon to meet the charge. And if his contention had prevailed before the Special Tribunal, could it be said that the Special Tribunal on its finding that it had no jurisdiction could give no decision upon the question of jurisdiction? If the decision of the tribunal has gone the other way and the petitioner has been convicted and he has made a revision under Section 8 of the Ordinance, this Court is in the same position as the Special Tribunal was, and can determine the question of jurisdiction and if it comes to a conclusion in favour of the petitioner it can give effect to its decision.

17. In order to examine the contention that the conviction of the petitioner was arrived at on inadmissible evidence and on incorrect appreciation of evidence, it is necessary to set out certain facts. Abdul Hakim and his cousin Abdul Rahman are two residents of Sikandra Rao in Aligarh District, who trade in bones. Under permits which they had obtained from the Divisional Superintendent of Moradabad, they booked four wagons of bones from Shahjahanpur to Cawnpore in May 1943. The petitioner at that time was the chief goods clerk of the East Indian Railway station at Shahjahanpur and was the head of the railway staff which was directly concerned with the booking of wagons. It is alleged by the Crown that in relation to the booking of these four wagons a sum of Rs. 120 at the rate of Rs. 30 per wagon was taken as bribe by the petitioner from Abdul Hakim, and this allegation is supported by the evidence of Abdul Hakim and Abdul Rahman given at the trial and by an entry in a diary in the handwriting of Abdul Rahman.

18. On 20th and 29th June 1943 and on 3rd, 6th and 11th July 1943 five wagons of bones in all were booked by Abdul Hakim and Abdul Rahman from Shahjahanpur to Cawnpore. On 13th July 1943 Abdul Hakim also booked 21 bags of hoofs. The railway receipts of the first two wagons in due course came in possession of Abdul Hakim and were transmitted to the consignee, Afzal Husain, at Cawnpore, who took delivery of the wagons. The railway receipts of the three later wagons did not reach the consignee and the delivery of these wagons had to be taken under an indemnity bond. The Crown alleges that when these five wagons were booked a bribe of Rs. 30 per wagon was again demanded by the petitioner and on Abdul Hakim's promise to pay the bribe when he had received money from the consignee, the railway receipts of two wagons were made over to Abdul Hakim. But on the non-fulfilment of the promise by Abdul Hakim the railway receipts of the three later wagons were withheld under the orders of the petitioner by the railway staff and no railway receipt was prepared with regard to the consignment of 21 bags of hoofs, and the petitioner threatened to auction the goods if the bribe demanded with regard to all the five wagons was not forthcoming. The Crown further alleges that on account of the threat of the detention of the railway receipts, Abdul Hakim got into touch with the police and the district authorities and as a result a trap was arranged for the detection of the bribe. This arrangement consisted in initialling ten currency notes of rupees ten each by a Magistrate which were handed over by Abdul Hakim to the petitioner on 15th July 1943 in railway office at a time when the Magistrate and the police were concealed closely, who immediately after the delivery of the notes recovered them from the possession of the petitioner. At the trial evidence was given about the detention of the railway receipts and about the demand of the bribe by Abdul Hakim and Abdul Rahman, which was supported by the contemporaneous correspondence which passed between them and the consignee, Afzal Husain. Evidence was also given by the police and the Magistrate about the trap laid for the detection of the bribe and about the recovery of the bribe from the possession of the petitioner. Khwaja Bakhsh, the seller of the bones to Abdul Hakim and Abdul Rahman, who was present at the time of the recovery of the bribe, also gave evidence to the effect that the petitioner on receipt of Rs. 100 demanded a further sum of Rs. 50 from Abdul Hakim as due to him.

19. The petitioner admits that he received ten currency notes of Rs. 10 each from Abdul Hakim in his office on 15th July 1943 at Shahjahanpur, which were recovered from his possession by the Magistrate as alleged by the Crown. But he denies that the notes were given as a bribe and he asserts that they were given by Abdul Hakim with the object of being changed into one rupee notes. At the trial the petitioner called witnesses to prove that the notes were given to the petitioner for a change. But the Special Tribunal on consideration of the entire evidence came to the conclusion that the defence was false and that the charge was proved. The petitioner contends that evidence of the payment of the bribe with regard to the four wagons which were booked in May 1943 previous to the offence charged and the correspondence between the consignor and the consignee with regard to the detention of the railway receipts of three wagons and the evidence relating to 21 bags of hoofs, which were sent subsequent to the wagons on 13th, was wrongly admitted and has prejudiced the petitioner, and as the judgment is materially based upon this inadmissible evidence, it should be set aside. The general principles upon which evidence of previous and subsequent similar transactions is admissible to prove the guilt of the accused in a criminal trial have often been explained by high judicial authorities and are now well settled, and whatever conflict now remains applies not to the principles, but to their application. These principles were thus stated by Lord Herschell in Makin v. Attorney-General for N.S.W. (1894) 1894 A.C. 57:

The mere fact that evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime oharged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused.

And these principles were thus summarised by Bray J., in R. v. Bond (1906) 2 K.B. 389:

A careful examination of the cases where evidence of this kind has been admitted shows that they may be grouped under the three heads : (1) where the prosecution seeks to prove a system or course of conduct; (2) where the prosecution seeks to rebut a suggestion on the part of the prisoner of accident or mistake; and (3) where the prosecution seeks to prove knowledge by the prisoner of the same fact.

20. I have no doubt that the correspondence between the consignor and the consignee with regard to the detention of the railway receipts in relation to the three wagons which were booked in July 1943, and the evidence relating to the booking of 21 bags of hoofs was admissible as it related to the subject-matter of the charge and corroborated Abdul Hakim's and Abdul Bahman's and Khwaja Bakhsh's evidence. But the question remains whether the evidence with regard to the bribe which was given in relation to the four wagons which were booked in May 1943, was legally admissible. There is no controversy in this case about the existence of any state of mind, intention, knowledge or good faith of the petitioner with regard to the ten notes of rupees ten each, which were received by the petitioner from Abdul Hakim on 15th July 1943. According to the Crown they were received as bribe and according to the petitioner they were received for a change. The Crown cannot and does not rely upon the bribe of May 1943, to prove the state of mind of the petitioner on 15th July, but it relies on this previous bribe to rebut the defence of the petitioner that the notes were received in July for a change. The petitioner also relies upon the evidence which has been called on his side to prove that the notes were given for a change on 15th July, and that evidence remains directly uncontradicted by the evidence of the previous bribe which was taken in May 1943. The evidence therefore of the previous bribe of May 1943, is not relevant directly to contradict the defence of the accused, but it is relevant only to make the prosecution story probable and the defence story improbable. But this evidence, though not admissible under Section 14, Evidence Act, and being a single transaction previous to the offence charged is not admissible to prove a 'system or course of conduct,' is admissible as forming part of the same transaction with the offence charged and to corroborate Abdul Hakim. And even if this evidence be excluded, there remains ample evidence to justify the conviction and the case is covered by Section 167, Evidence Act.

21. It is not the practice of this Court generally in revision to enter into evidence unless there is some legal defect in the findings or in the procedure, or the judgment against the accused is perversed or opposed to natural justice. Not only these considerations are totally absent from the case, but up to a great extent the Crown case has been admitted by the defence and is supported by reliable evidence. The receipt of the notes having been admitted by the petitioner, it was for him to establish that the notes were given to him for a change, and I find his explanation opposed to all the probabilities of the case and is incredible. It is the duty of this Court to certify in every case whether 'a substantial question of law as to the interpretation' of the Government of India Act, 1935, is involved in the case. This case undoubtedly raises a question as to the validity of the Ordinance which has been enacted under the Government of India Act. But the question raised before us directly related to the interpretation of the Letters Patent and only indirectly related to the interpretation of the provisions of the Government of India Act. It is possible to take the view that no question of the interpretation of the Government of India Act is involved in the case, but it is not necessary to express any final opinion on this question. Even assuming that a question of the interpretation of the Government of India Act is involved, I am clear that it is not a substantial question of law, and the ease should not be classified for leave to appeal to the Federal Court. I would therefore refuse the certificate and dismiss the revision.

22. We dismiss this application in revision and are unable to give a certificate under Section 205, Government of India Act.


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