1. This revision arises under the following circumstances. The petitioner Captain Saiyad Ahmad Agha, at present under suspension, is the Aerodrome Officer, Santa Cruz, Bombay. In 1949, he was Aerodrome Officer at the Indore Aerodrome. It is alleged that during the period 1-1-1949 to 31-5-1949, the petitioner and his subordinate Shri Sinhawal (Station Officer, Indore Aerodrome) engaged in a criminal conspiracy to commit criminal breach of trust by dishonestly obtaining salaries in the names of N. V. Parmeshwaram and S. K. Biswas showing them as Radio Telephone Operators at the Indore Aerodrome.
Thus they are alleged to have misappropriated the amount of their salaries during the period 1-1-1949 to 31-5-1949. It is also alleged that false acquittance rolls were prepared and false signatures of the two persons were appended. On 7-5-1951, an anonymous application was made to the Central Intelligence Officer, Civil Aviation Department.
Eventually, the Delhi Special Police Establishment, Jiibalpur, made enquiry into the matter and registered offences under Sections 409, 420 read with Section 120B, I. P. C. against the accused petitioner and Shri Sinhwal on 11th May, 1952. The Delhi Special Police Establishment then challaned the accused petitioner on 18-2-1955. The President had accorded sanction under Section 197, Cr. P. C. on 11th November, 1954. The sanction is in the following form:
Whereas it has been made to appear to the President of India that during the period between 1-1-1949 and 31-5-1949, Shri S. A. Agha while employed as Aerodrome Officer, Indore, was a party to criminal conspiracy with Shri D. P. Sinhwal to commit criminal breach of trust in the matter of dishonestly obtaining pay in the name M/s N. V. Panneshwaram and S. K. Biswas shown working as Radio Telephone Operators and misappropriate the same and thereby committed such acts as constitute offences punishable under Section 120B read with Section 409, I. P. C. and Section 420, I. P. C.
The President is satisfied that Shri S. A. Agha has committed the above alleged offences and is of opinion that he should be tried In a Court of law; And
Therefore, sanction under Section 197, Criminal Procedure Code (as amended by the Adaptation of Law Order, 1950) is hereby accorded for institution of criminal proceedings against Shri S. A, Agha, and it is further ordered that he be tried in a Court of law of competent jurisdiction.
By Order of the President.
The learned Magistrate has now framed a charge against the petitioner for offences under Section 120B of the Indore Penal Code, Section 420, Indore Penal Code and Section 409, Indore Penal Code. He mentions it in the beginning of the charge that he is trying this case as the Additional District Magistrate (First Class), City Indore, and also as a Special Magistrate.
The petitioner had raised objections to the competence of the learned Special Magistrate, and also he contended that the President's sanction was invalid. Both these contentions have been rejected by the Court below, and the petitioner files this petition under Section 561-A, I. P. C. for quashment of proceedings and alternatively for revision under Section 435, Cr. P. C. of the orders of the learned Special Magistrate.
2. Mr. Bhargav, learned Counsel for the petitioner, raised both the contentions which he had raised in the Court below. Now, it appears that the two jurisdictions which the Court below exercised are distinct and separate as the sources of the two jurisdictions are distinct. As First Class Magistrate and as Additional District Magistrate, he derives his powers from the Code of Criminal Procedure, while as Special Magistrate he derives his powers from a notification which appeared in the Madhya Bharat Government Gazette dated 31st October, 1954.
In brief, it states that the Raj-Pramukh has appointed the Additional District Magistrate, Indore, who is a First Class Magistrate, as a Special Magistrate for the districts of Indore, Dewas, Ujjain, Ratlam, Mandsaur, Jhabua, Dhar and Nimar to try all cases which have been investigated by the Delhi Special Police Establishment except those cases which are mentioned in Section 6 of the Criminal Law Amendment Act of 1952.
3. The investigation of offences by the Delhi Special Police Establishment is regulated by the Delhi Special Police Establishment Act (No. 25 of 1946) and lays down in Section 3 that the Central Government may, by notification in the Official Gazette, specify the offences or classes of offences committed in connection with matters concerning Departments of the Central Government which are to be investigated by the Delhi Special Police Establishment.
The Central Government issued the said notification on 3rd June, 1948 and it is published in the Gazette of India dated 12th June, 1948, at page 704. The Central Government specified the following classes of offences, committed in connection with matters concerning Departments of the Central Government for the purposes of the aforesaid Section 3:
(a) Offences punishable under Sections 161, 162, 165, 379 to 382, 406, 409, 411 to 414, 417 to 420, 465, 466, 468, 471 and 477A of the Indian Penal Code, 1860(Act 45 of 1860) and Section 5 of the Prevention of Corruption Act, 1947;
(b) Offences punishable under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946;
(c) attempts, abetments and conspiracies in relation to, or connected with, the offences mentioned in Sub-clauses (a) and (b).
It will be obvious that this Notification is restricted to offences Under the Indian Penal Code and it does not give any power to the Delhi Special Police Establishment to investigate offences under the Indore Penal Code. It may be mentioned here that at the material time in .1949, the Indore Penal Code (Act 2 of 1904) was in force here.
It was an Act of the Indore Ruler which continued till it was repealed on 5-9-1949 by an enactment of the Madhya Bharat Legislature known as the Indian Penal Code Adaptation Act (No. 50 of 1949). This enactment brought the Indian Penal Code into force but with certain adaptations and modifications. Except for more than a dozen sec-dons, in form and contents the adapted Penal Code was substantially the same as the Indian Penal Code.
This adapted Penal Code was repealed on 1-4-.1951 by the Part B States (Laws) Act, 1951, which brought the Indian Penal Code (Act XLV of 1860) in force in Madhya Bharat State. It was an Act of the Parliament and in this respect differs from the Indore Penal Code and the Indian Penal Code Adaptation Act of 1949.
In view of the provisions of Article 20(1) of the Constitution of India, the petitioner cannot be convicted under sections of the Indian Penal Code for offences which were alleged to have been committed during the period 1-1-1949 to 31-5-1949. The conviction must be under sections of the Indore Penal Code; and, therefore, the learned Magistrate framed charges for offences under the Indore Penal Code.
4. It is conceded on behalf of the State that the Delhi Special Police Establishment could not have investigated the offences under the Indore Penal Code. If it is so, then the Special Magistrate cannot try those cases which cannot be investigated under Section 3 of the Delhi Special Police Establishment Act (No. 25 of 1946).
The learned Special Magistrate can derive his powers only from the Notification of the Madhya Bharat Government and the Notification of the Government of India issued under Section 3 of the Delhi Special Police Establishment Act. The investigation by the Delhi Special Police Establishment must be held to be invalid and all the proceedings in the Court of the Special Magistrate cannot be validated by saying that he is trying the case as Additional District Magistrate, or as First Class Magistrate, Indore.
As I observed before, the two jurisdictions are distinct. Before an order made in the intended exercise of a supposed power can be upheld as an order validly made under another power, all the conditions contained in the lawful exercise of the one must be identical with the conditions prescribed for the exercise of the others. In other words, the legal foundation of an order under one, must be the same as that intended for an order under the other.
From the order of the learned Special Magistrate it appears that he can take cognizance even as a First Class Magistrate, and the learned Government Advocate before me also argued about Section 190 and about taking cognizance of cases. As Justice Braund observed in Basdeo v. Emperor AIR 1945 All 340(A), jurisdiction is given to Courts by the statutes which create them. Cognizance of an offence or a case is something quite different from jurisdiction to dual with that case.
It is, in other words, a confusion of ideas to treat competence to take cognizance as the same thing as competence in respect of jurisdiction in relation to that offence. The two things are quite different. Here there is a defect of jurisdiction so far as the Court of the Special Magistrate is concerned; and the Privy Council, in the last sentence of para 12 in the case of Gokulchand Dwarkadas Morarka v. The King AIR 1948 PC 82(B) made it quite clear that a defect in the jurisdiction of the Court can never be cured under Section 537, Cr. P. C.
It is well settled that in criminal cases jurisdiction cannot be assumed (Emperor v. Brian Bonnam Carter 17 Ind Cas 559(Lah)(C)), and in regard to matters for which the Legislature has made express provision, it cannot be assumed in excess of the jurisdiction so conferred. The learned Government Advocate invited my attention to several provisions embodied in Section 529 and Section 531 Cr. P. C., but those are defects not of jurisdiction but only of venue and can be cured by Section 531, Cr. P. C.
Even under Section 537, Cr. P. C., the Court whose proceedings are to be validated must be a Court of competent jurisdiction in respect of the particular offence charged. If the case is tried by a Magistrate not having jurisdiction, the proceedings cannot be validated and the trial must be held to be invalid irrespective of the fact whether it has occasioned a failure of justice or not.
I, therefore, come to the conclusion that the Court of the Special Magistrate for the district of Indore appointed under the Law Department's Notification No. 190(5)J 840-4-52 dated 14th October, 1954, which has been published in the Madhya Bharat Government Gazette dated 31st October, 1954, has no jurisdiction to try offences under the Indore Penal Code.
The proceedings in this Court, if continued, will be coram non judice. So far as the Court of the Special Magistrate is concerned, the very elements which are essential for the foundation of its jurisdiction are absent. It is not the irregular exercise of jurisdiction but the inherent lack of jurisdiction that is manifest in this case.
5. The learned Government Advocate placed reliance upon Prabhu v. Emperor AIR 1944 PC 73(D); Lumbhardar Zutshi v. The King AIR 1950 PC 26(E) and H. N. Rishbud v. State of Delhi : 1955CriLJ526 , for the proposition that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial, and the learned Counsel urges that so far as the Court of the Additional District Magistrate, Indore, or the Court of the First Class Magistrate, Indore, is concerned, the faulty investigation by the Delhi Special Police Establishment will not affect the competence and the jurisdiction of these Courts.
I have no doubt that the principle is very well settled now; but it was observed in para 10 of : 1955CriLJ526 that the invalidity of the investigation is not to be completely ignored by the Court during the trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court will have to take the necessary steps to get the illegality cured and defect rectified by a suitable order. In my opinion, the instructions contained in para 10 of this case ought to be complied with. Therefore, I think it proper to remove the confusion by holding that the Court of the Special Magistrate, Indore, cannot try this case. If the Additional District Magistrate, Indore, or the First Class, Magistrate, Indore wants to try the case, or is trying this case as such then, the charge framed must be suitably modified and the accused should be told in plain words that the case is being tried by the Additional District Magistrate, Indore, or, by the First Class Magistrate, Indore, as the case may be. The confusion that has been prevailing and that may lead to a miscarriage of justice must be dispelled so that the accused should know the particular Court which is trying this case.
6. As regards the second point raised by Mr. Bhargav, the learned Counsel for the petitioner, it suffices to say that 1 do not find any substance in it. The facts constituting the offence charged in this case are shown on the face of the sanction. So, it is clear that the test laid down in AIR 1948 PC 82(B) and in Biswabhushan Naik v. The State of Orissa : 1954CriLJ1002 , is fully satisfied in this case. The sanctioning authority knew the facts alleged to constitute offences and die sanction is quite valid.
Mr. Bhargav thinks that it was necessary to tell the sanctioning authority that the petitioner was to be prosecuted under the Indore Penal Code, and the sanctioning authority might have refused sanction on the ground that the prosecution was inexpedient. In my opinion, what is to be looked at is whether the allegation of facts for sanction to prosecute an officer of the State had b 'en before the sanctioning authority or not.
In the present case the sanction contains a statement of the facts relied upon as constituting the offences, in ordinary and concise language, with as much certainty as the nature of the case admits and this, in my opinion, should be deemed to be sufficient in view of the fact that sanction to prosecute under Section 197, Cr. P. C. is after all an executive and not a judicial act.
It is true that a sanction to prosecute for an offence under one section may not be valid for prosecuting the accused for an offence under another section of the Code or under another law which could not come within the terms of the sanction; but this difficulty can arise only where no facts or details are given in the sanction itself. Where the facts in detail appear clearly in the sanction itself (as in this case), the accused can, in my opinion, be ' prosecuted for any offence which quite clearly comes within the terms of the sanction. The result is that this revision succeeds on the first point and fails on the second.
7. For reasons stated above, I allow this petition only to this extent that I hold that the Special Magistrate for the district of Indore has no jurisdiction to try this case. The charge framed against the accused by the Special Magistrate is hereby set aside and the case is sent to the Court below for altering or for suitably modifying the charge, after hearing the arguments of the parties, in case it is disposed so to do, and for the disposal of the case according to law.