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Nishan Singh Harnam Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 356 of 1953
Judge
Reported inAIR1955P& H65; 1955CriLJ609
ActsPrevention of Corruption Act, 1947 - Sections 3 and 6; Evidence Act, 1872 - Sections 114; Indian Penal Code (IPC), 1860 - Sections 161, 165 and 165A; Code of Criminal Procedure (CrPC) , 1898 - Sections 193, 197, 409 and 529; Criminal Law Amendment Act, 1952 - Sections 5(2), 6(1) and 7
AppellantNishan Singh Harnam Singh
RespondentThe State
Appellant Advocate Narinjan Singh Keer, Adv.
Respondent Advocate Kartar Singh, Asst. Adv. General and; K.L. Jagga, Adv.
Cases ReferredEmperor v. Anwar Ali
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordersoni, j.1. nishan singh, a clerk in the office of thedeputy commissioner, gurdaspur, was chargedunder section 161, penal code and section 5(1)(d) of theprevention of corruption act for having on21-5-1952, accepted from darshan singh a sum ofrs. 12/- as gratification other than legal remuneration as a motive for rendering service to him byhelping him to obtain certain copies and also tohave been guilty of criminal misconduct in thedischarge of his duties. he was found guilty bythe special judge trying the case under the provisions of the prevention of corruption act, 1947,as amended, of both charges and was sentenced tosix months' rigorous imprisonment under eachcharge, the sentences to run concurrently. hehas appealed.2. there is one point of considerable importance in this case for.....
Judgment:
ORDER

Soni, J.

1. Nishan Singh, a clerk in the office of theDeputy Commissioner, Gurdaspur, was chargedunder Section 161, Penal Code and Section 5(1)(d) of thePrevention of Corruption Act for having on21-5-1952, accepted from Darshan Singh a sum ofRs. 12/- as gratification other than legal remuneration as a motive for rendering service to him byhelping him to obtain certain copies and also tohave been guilty of criminal misconduct in thedischarge of his duties. He was found guilty bythe Special Judge trying the case under the provisions of the Prevention of Corruption Act, 1947,as amended, of both charges and was sentenced tosix months' rigorous imprisonment under eachcharge, the sentences to run concurrently. Hehas appealed.

2. There is one point of considerable importance in this case for which I consider that this case should be referred to a Division Bench. The facts are that this case was originally sent up for trial before the Additional District Magistrate, Gurdaspur. 'The challan was put before him on 2-6-1952'. He examined the first witness on 4-7-1952. On 8-8-1952 prosecution evidence was closed. During this interval the criminal Law Amendment Act XLVI of 1952. came into force on 28-7-1952. Under the provisions of this Act offences 'punishable under Section 161, Indian Penal Code, and punishable under Sub-section (2) of Section 5, Prevention of Corruption Act could' only be tried by Special Judges.

The Additional District Magistrate therefore on 7-10-1952 sent the case to the Special Judge. I suppose the case was not sent earlier because there was no notification appointing a Special Judge till 5-9-1952. 'By Notification No. 7782-JJ-52/3980, dated 5-9-1952, published in the Punjab Gazette on the 12-9-1952 all Sessions Judges in the State were appointed Special Judges for the trial of cases under the Prevention of Corruption, Act. This notification was issued' under Clause (2) of Section 6, Criminal Law Amendment Act, XLVI of 1952. When the case came before the Sessions Judge as Special Judge he went on adjourning it without recording any evidence. Eventually on the 29th of May 1953 there is an order by the Judge sending the case to the Additional Sessions Judge who during this interval had also, been appointed as a Special Judge. There is a notification No. 10576-JJ-52/17944, dated 6-11-1952, published in the Punjab Gazette of 14-11-1952, by which all Additional Sessions Judges were appointed Special Judges to try cases under the Prevention of Corruption Act. This having been done the Addl. Sessions Judge as a Special Judge began to try this case. He began examining witnesses on the 4-6-1953. On 13-7-1953 all defence witnesses were examined except one. That one was examined on 21-7-1953. Thereafter judgment was delivered by the Special Judge on 30-7-1953.

During the interval that the Additional Sessions Judge was trying the case as a Special Judge it seems to have, been brought to somebody's notice that cases cannot be transferred by the Sessions Judge to the Additional Sessions Judge. Under Section 7, Clause (2), Criminal Law Amendment' Act, it is provided that every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by 'such one of them as may be specified in this behalf by the State Government'. Attention of the State Government was drawn by the Registrar of this Court by a letter of 10-6-1953 that Government should take steps to make the allocation of cases to the Additional Sessions Judges. Thereafter lists were prepared of the various Additional Sessions Judges who had been made Special Judges and of the various cases that were pending in various districts. On '20-7-1953 by letter No. 9891-JJ-53/49958' the Home Secretary to the Punjab Government wrote to the Registrar of this Court allocating various cases to various Judges specifying them as 1st and IInd Additional Sessions Judges as the case may be.

The present case is allocated to Mr. Tirath Das Sahgal, the Addl. Judge. The point that has been argued in this case is that at the time when the present Special Judge Mr. Tirath Das Sehgal began the proceedings in the present case which was on 4-6-1953 there had been no allocation of the present case to him by the State Government and as there was no allocation to him by the State Government it is argued that the 'proceedings before him were void.' The letter of the Home Secretary dated 20-7-1953 appears on the scene towards the end of the proceedings before the Special Judge. A copy of the Home Secretary's letter Is sent to the Sessions Judge on 24-7-1953. It is argued that it cannot possibly 'cure the initial' defect that had existed when the Special Judge Mr. Tirath Das Sehgal began to take cognizance and to record evidence in this case.

3. On behalf of the appellant attention is drawn to a ruling of their Lordships of the Privy Council in -- 'Nusserwanjee Pestonjee v. MeerMynoodeen Khan', 6 Moo Ind App 134 (PC) (A). At p. 155 their Lordships say-

'The present question turns upon this principle, that wherever Jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the Jurisdiction, for if they be not complied with, the jurisdiction does not arise.'

Their Lordships then went into the facts of the ease with which they were dealing which was the matter of an award. The arbitrators could have taken cognizance of the award only on certain conditions and their Lordships found that those conditions not having been fulfilled as specified by the Regulation under which they were acting the whole proceedings were bad. It is argued that this case decided by their Lordships of the Privy Council coincides with the present case.

4. In the present case the Special Judge could have only jurisdiction under 01. (2) of Section 7, Criminal Law Amendment Act, 1952, if the case had been sent 'on to him for trial by the State Government'. As the State Government never did this on or before 4-6-1953 when he began to record evidence in this case it is argued that he had no jurisdiction in this case and the letter of the Government dated 20-7-1953 reached too late and would not give him jurisdiction in a case in which he had 'ab initio' no other jurisdiction at all. On behalf of the State it is stated that that ruling of their Lordships of the Privy Council was distinguished by Mr. Justice Mookerjee in the case of --'Khosh Mahomed Sirkar v. Nazir Mahomed', 33 Cal 352 (B), decided by a Full Bench of the Calcutta Court. Rampini and Mookerjee JJ. referred the case which was pending before them to a Full Bench. There an initiatory order under Section 145 (1), Criminal P. C., was drawn up in a form according to which it was argued that the Magistrate had no jurisdiction. Mr. Justice Mookerjee at p. 357 dealing with judgment of their Lordships of the Privy Council in 6 Moo Ind App 134 (A)' said:

'By that Regulation jurisdiction was conferred upon the Civil Courts to deal with arbitration awards made out of Court, provided the reference to arbitration and the award complied with certain conditions minutely detailed in the Regulation itself. One of these conditions was that the agreement of reference should specify the time for the completion of the award. An agreement of reference to arbitration was made which contravened this condition and specified no time within which the award was to be made. It was held by their Lordships of the Judicial Committee that an award made upon such a reference was not an award which the Civil Court could deal with under the Regulation, because the Civil Court had been given jurisdiction over awards made under a specified condition, and the award in suit was not an award of that description. That was, therefore, a case which stood on an entirely different ground and has no analogy to the case now before us. We are consequently unable to hold that the omission to state the grounds in the initial order makes it an order without Jurisdiction so as toinvalidate the whole proceedings.'

The Full Bench agreed with the view thus expressed in the referring order. In the present case it is urged that Mr. Tirath Das Sehgal, Special Judge, had jurisdiction in the matter of trial of cases punishable under Section 161, Indian Penal Code, and Sub-section 2 of Section 5, Prevention of Corruption Act, because a notification of the State Government had been issued on 6-11-1952 appointing all Additional Sessions Judges as Special Judges. It is stated that that w,as the notification which gave Mr. Tirath Das Sehgal jurisdiction over all cases of this nature. Bo far as the allocation of a particular case is concerned that matter is dealt with by another section of the Criminal Law Amendment Act, that section being Section 7 Clause (2) which authorises the State Government to allocate the various cases. It is argued that this is a purely ministerial duty and that Clause (2) of Section 7 might as well have given this duty of allocation of cases to the Sessions Judges or to the High Court or to anybody else which the Legislature pleased but that so far as the actual vesting of the jurisdiction is concerned, Clause (2) of Section 7 has nothing to do with it. That matter of vesting or jurisdiction is dealt with in Clause (2) of Section 6 and when a notification is issued under Clause (2) of Section 6 all Additional Sessions Judges become Special Judges competent to try cases of the present nature.

5. Mr. Chawla one of learned counsel for the State in an able argument drew my attention to Section 529, Criminal P. C. In that section it is provided-

'If any Magistrate not empowered by law to do any of the following things namely:--

X X XXX (e) to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or Clause (b);

X X XXX erroneously in good faith does that thing, hia proceedings shall not be set aside merely oh the ground of his not being so empowered.'

If reference is made to Section 190 we find that it Is stated as follows:

'196 (1). Except as hereinafter provided any presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitutes such offence;

(b) upon a report in writing of such facts made by any police officer; X X X X X

Ordinarily Magistrates cannot take cognizance of offences directly. This is a privilege which is given to the District Magistrates, the Sub-Divisional Magistrates or the Magistrates specially empowered for that purpose. But otherwise Magistrates take cognizance of cases which are ordinarily sent to them either by the Sub-Divisional Magistrate or the District Magistrate. Section 529 enacts that if any Magistrate not empowered by law to take such cognizance erroneously in good faith takes cognizance then his proceedings will not be set aside merely on the ground that he was not so empowered. It is argued that in this case Mr. Tirath Das Sehgal acted 'bona fide', thatno objection at all was taken to his proceedings from the beginning right to the end when he delivered his judgment and that this objection is being taken now for the first time in this Court. Mr. Chawla referred me to a Full Bench judgment of the Patna High Court in the case of -- 'Jhakar Abir v. Province of Bihar', AIR 1945 Pat 98 (C), in which Mr. Justice Shearer at p. 102 says -

'The jurisdiction of every criminal Court to try a particular offence is derived from statute, either from the statute which creates the Court or from the statute which defines the olfence (see Bailey on Jurisdiction Vol. I, p. 486).'

At p. 103 the learned Judge said:

'Where a Court has jurisdiction to try an off-ence it is, as a rule, immaterial whether it has taken cognizance of the 'offence without being empowered to do so or whether the case has been transferred to it' by another Court which was not empowered to make the order of transfer. Clauses (e) and (f) of Section 529, Criminal P. C., provide that the commission of some irregularity of this kind prior to the commencement of the trial does not vitiate the trial itself.'

6. It is urged that in the present case the jurisdiction of Mr. Tirath Das Sehgal was conferred on him by the notification of the 6-11-1952 issued under the provisions of Clause (2) of Section 6, Criminal Law Amendment Act. That notification issued under statutory powers was the basis of the jurisdiction of Mr. Tirath Das Sehgal and his exercise of jurisdiction had nothing to do with his getting the jurisdiction. The exercise of that jurisdiction was no doubt irregular as the case had not been transferred to him by an order of the State Government but had been sent on to him by the order of the Sessions Judge but that irregularity, it is urged, is not fatal because it is not urged that Mr. Tirath Das Sehgal was not acting 'bona fide' or that any failure of justice has been occasioned and it is also urged that the objection is being taken too late. Under the provisions of Section 537, Criminal P. C., it is said-

'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or 'other proceedings before or during' trial or in any inquiry or other proceedings under this Code. ..... unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.'

It is urged that in this particular case no failure of justice has been occasioned much less proved. Attention was also drawn to the explanation of Section 537. The Explanation says -

'In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.' ,

It is said that if the attention of Mr. Tirath Das Sehgal had been drawn to the fact that he was not competent to try this case as the case had been sent on to him by the Sessions Judge he would have stayed his hand and would have drawn the attention of the Sessions Judge or of other officers to the fact that the case should be sent on to him by the State Government and on that irregularity having been pointed out the State Government would have sent the case on to him at a date earlier than 20-7-1953.

Mr. Chawla drew my attention also to a ruling of the Peshawar Court in the case of -- 'Pearey Lal v. Emperor', AIR 1940 Pesh 41 (D). In this case Almond J. C. said at p. 43-

'A Senior Subordinate Judge does not exercise his powers in view of any authority delegated to him by the Provincial Government, but in view of the statutory provisions embodied in the Civil Procedure Code'.

7. Reference may also be made to a judgment of their Lordships of the Privy Council in the case -- 'Ledgard v. Bull', 13 Ind App 134 (PC) (E). At pp. 144-45 their Lordships say-

'The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit, if it were competently brought, and their Lordships do not doubt that, in such a case, a defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when in a cause which the Judge is competent to try, the parties without objection Join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.'

This case no doubt was a case of a civil nature but the principles which their Lordships enunciated in this case are of general application. I have already referred to the case of '33 Cal 352 (PB) (B)'. In the same volume there is another case decided by the Full Bench, -- 'Sukh Lal v. Tara Chand', 33 Cal 68 (F). In the order of reference to the Full Bench it is stated at p. 71-

'Another class of question may, however, arise, namely, whether a Court in the exercise of the jurisdiction which it possesses, has acted according to the mode prescribed by the Statute. If such a question is raised, it relates obviously not to the existence of the jurisdiction, but to the exercise of it in an irregular or an illegal manner. We are not prepared to accept the view that a non-compliance with every rule of procedure destroys the jurisdiction of the Court.'

The Pull Bench at p. 78 said:

'In our opinion the mere fact that the Court omitted to have a copy of the Magistrate's order, referred to in Section 145, published by affixing it insome conspicuous place at or near the subject of dispute did not deprive the Court of its jurisdiction to deal with the case. We express this opinion with some diffidence, as a different View has been expressed by Division Benches of this Court, which is entitled to every consideration and respect. Assuming that Sub-section (1) of Section 145 has been complied with, the Court had undoubted jurisdiction to deal with the case. Has this jurisdiction been lost by reason of the omission as to notice referred to above? We think not. We regard the provision as to publication of the order in Sub-section (3) of Section 145 as directory, and as a matter of procedure only, and not as destroying the jurisdiction of the Court, if not complied with.'

8. In the case of -- 'Vishnu Sakharam v. Krishna Rao', 11 Bom 153 (G), West J. said at p. 159-

'It is this, that where jurisdiction over the subject-matter exists, requiring only to be invoked in the right way, the party who has invited or allowed the 'Court to exercise it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings' due to his own invitation or negligence.'

After, at the same page, West J. says:

'Had there indeed been no jurisdiction over the subject-matter, the acquiescence of the parties concerned could not create it; but as there was a jurisdictional power, and the questions at issue were investigated and determined, the irregularity, according to the subsequent ruling in another case, was covered by the assent with which this Court acted.'

And reference is made to a number of authorities by the learned Judge.

9. The matter is again dealt with by Mr. Justice Mookerjee in the case of -- 'Gurdeo Singh v. Chandrikah Singh', 36 Cal 193 (H). At p. 207, Mookerjee J. states as

'An entirely different class of questions, however, arises, when it is suggested that a Court in the exercise of the jurisdiction which it possesses, has not acted according to the mode prescribed by the Statute. If such a question is raised, 'it relates obviously, not to the existence of jurisdiction, but to the exercise of it in an irregular or illegal manner'. This distinction between elements, which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised, 'is of fundamental importance', but has not always been sufficiently recognised. That the distinction is well-founded is manifest from cases of high authority. Thus, in -- 'Pisani v. Attorney-General for Gibraltar', (1874) 5 PC 516 (I), their Lordships of the Judicial Committee held that, where there is jurisdiction over the subject-matter, but non-compliance with the procedure prescribed as essential for the exercise of jurisdiction, the defect might be waived.

The same principle was adopted in -- 'Ex Parte Pratt', (1884) 12 QBD 334 (J) and --'Ex parte May', (1884) 12 QBD 497 (K), which are authorities for the proposition that where jurisdiction over the subject-matter exists requiring only to be invoked in the right way, the party, who has invited or allowed the Court to exercise it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings due to his own invitation or negligence; see -- '11 Bom 153 (G)'. Although the objection that a Court is not given jurisdiction over the subject-matter by law, cannot be waived, -- 'Golab Sao v. Madho Lal', 2 Cal LJ 384 (L), yet defects of jurisdiction arising from irregularities in the commencement of the proceedings, may be waived by the failure to take objection at proper stage of the proceedings.'

The learned Judge quotes American cases in his support. The learned Judge then continues at p. 208-

'To put the matter from, another point of view, it is only when a Judge or Court has no jurisdiction over the subject-matter of the proceeding or action in which an order is made or a judgment rendered, that such order or judgment is wholly void, and that the maxim applies that consent cannot give jurisdiction; in all other cases, this objection to the exercise of the jurisdiction may be waived, and is waived when not taken at the time the exercise of the jurisdiction is first claimed.'

10. It is urged that the Additional Sessions Judge's jurisdiction cannot be split up by reference in one instance to Clause (2) of Section 6 and in a second instance to Clause (2) of Section 7, Criminal Law Amendment Act, but that both these clauses must be read together and when read together it is clear that Mr. Tirath Das Sehgal could only have jurisdiction over the subject-matter of this case if the State Government were to send this case on to him. It is urged that the Privy Council had repeatedly held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden: -- 'Nazir Ahmad v. 'King-Emperor', AIR 1936 PC 253 (2) (M).

11. The letter of Government dated 20-7-1953 affects a large number of cases in which proceedings had been started before Additional Sessions Judges as Special Judges before the letter was issued and vitally affects the trial of those cases. The matter is of general importance and I consider that though I am inclined to hold that there is no substance in the objection, the matter be heard by a Division Bench.

12. So far as the merits of the case are concerned, there are also some difficulties in the case. The case for the prosecution is that a man called Darshan Singh wanted certain copies. He applied to the Copying Department on 7-5-1952. The copies were not delivered. Then he again wanted certain other copies and made an application on 19-5-1952 which was registered on the 20th of May. It was found that the copies related to a certain file which had to be sent for and it is said that Nishan Singh, accused was the person who had to send for the file and he told Darshan Singh that unless some money was paid the file would not be sent for and the copies would not be made or, at any rate, considerable delay would take place. It is said that Darshan Singh was accompanied by a relation of his, Tek Singh,whose wife is Darshan Singh's father's maternal uncle's daughter. They both asked Nishan Singh to get on with the work but Nishan Singh would not do so unless a sum of Rs. 12/- was given to him. They promised to bring the money the next day. Next day they went to him and wanted to bargain but Nishan Singh was adamant and wanted his Rs. 12/-.

Thereupon they went to a Police Inspector Sohan Lal who recorded the statement of Darshan Singh. After recording the statement of Darshan Singh he was taken to Mr. Abhairaj Singh, Magistrate who also recorded his statement and thereafter marked currency notes of the value of Rs. 12/- were given to Darshan Singh and a raid was organized. It is said that Mr. Abhairaj Singh, the Magistrate, and others kept behind while Darshan Singh and Tek Singh went towards the Copying Department. They took Nishan Singh aside and there it is alleged that the Rs. 12/- were paid and on a signal being given the Magistrate and the raiding party approached and the marked currency notes of Rs. 12/- were recovered from the pocket of Nishan Singh.

Thereafter an application was made to Mr. Abhairaj Singh by Sohan Lal for permission to investigate the case which permission Mr. Abhairaj Singh gave. Mr. Abhairaj Singh made a report of what had happened to the District Magistrate. The District Magistrate on that report ordered the prosecution of Nishan Singh as Nishan Singh worked under the Deputy Commissioner who was in charge of the Copying Department. It was probably felt by the police that the permission to investigate by Mr. Abhairaj Singh was perhaps not proper. So another application was made by Sohan Lal to Mr. Ajit Singh Magistrate for permission to investigate the offence. He also applied for permission to be given to Assistant Sub-Inspector Gurbakhsh Singh to investigate the case and these permissions were granted by Mr. Ajit Singh. All this was done on 21-5-1952. A few days later the Deputy Commissioner also gave the permission to prosecute Nishan Singh. It is urged that the permission to investigate the case was improperly obtained. In my opinion it would have been better on the part of Mr. Abhairaj Singh not to give the permission as he himself was the person who was acting in the case and the permission to investigate the case should have been given by another Magistrate.

13. It is then urged that the permission which was given by Mr. Ajit Singh was improper as the application of Sohan Lal to Mr. Ajit Singh was in the following terms:

'I may kindly be permitted to conduct the investigation of case Crown v. S. Nishan Singh Second Moharrir in the Copying Agency.

Sd/- Sohan Lal,

Inspector of Police.

21-5-52.'

It is urged that there is nothing to show that Mr. Ajit Singh was apprised of any facts before permission was granted. Mr. Ajit Singh has not been examined as a witness and there is no statement of anybody saying that the facts were given to Mr. Ajit Singh. It is however urged on behalf of the State that when 'Mr. Ajit Singh was approached we must not presume that he did act blindfold but that he asked the Inspector what this application was about and that the Inspector must have told him what had happened'.

Moreover all this took place within the Court compound and everybody must have come to know of it including the Magistrate Mr. Ajit Singh. Under the provisions of Section 114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The grant of permission to investigate an offence to an officer of an inferior rank of police does not stand on the same footing as the sanction of the prosecution of a person accused of an offence. In an investigation facts have to be found out and the only question to be considered by the authority granting permission to investigate is whether a particular police officer of a rank inferior to that of a Deputy Superintendent of Police should or should not investigate the offence. A Deputy Superintendent can always investigate. In my opinion there is no substance in this objection.

14. It is next urged that the permission to prosecute given by the Deputy Commissioner, Mr. H. B. Lall, was not proper. The sanction to prosecute by Mr. H. B. Lall was given in the following terms:

'I, H. B. Lall, Deputy Commissioner, Gurdaspur, do hereby accord sanction under Section 6 of the Prevention of Corruption Act to the prosecution of Nishan Singh s/o Harnam Singh Mazhbi Sikh of Sohal, a Clerk in my office for offences under Section 5(2) of the aforesaid Act and Section 161, I. P. C. in having accepted on 21-5-52 a sum of Rs. 12/- as bribe or gratification other than legal remuneration as a motive or reward for doing an act in the discharge of his official duties, from Darshan Singh Jat of village Marrar P. S. Sadar Batala for supplying him copies of his claim reports.

Sd/- H. B. Lall,

Deputy Commissioner,

Gurdaspur,

30-5-52.'

It is urged that this sanction is improper and reference is made to a ruling of their Lordships of the Privy Council in -- 'Gokulchand Dwarka-das v. The King', AIR 1948 PC 82 (N), where the sanction was in the following terms:

'Government is pleased to accord sanction under Clause 23, Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of Clause 18(2) of the said Order.

By Order of the Governor of Bombay,

(Signed)

Deputy Secretary to Government, Bombay.'

The Privy Council held that in that case there were no sufficient facts given nor was there any extraneous evidence to show that any facts had been placed before the Governor at the time when he accorded the sanction. But in the present case we have the evidence of the Deputy Commissioner's Clerk Bansa Singh P. W. 5 to the effect that an application Ex. P. B was sent by the Superintendent of Police to the Deputy Commissioner for obtaining sanction for prosecution. This application Ex. p. B reads as follows:

'A 'prima facie' case has been made out against Nishan Singh accused cited as subject for offences under Section 5(21, Prevention of Corruption Act, and Section 161, I. P. c. in having accepted a sum of Rs. 12/- from one Darshan Singh Jat of Marar P. S. Sadar Batala, as bribe or gratification other than legal remuneration as a motive or reward for supplying him copies of his claims reports--an act in the discharge of his official function.

It is therefore requested that sanction for his prosecution for the above said offence, as required under Section 6 of the said Act may kindly be granted.'

This application does give the facts of the case. We have moreover the evidence of Mr. Abhairaj Singh that he sent his report of what had happened to the Deputy Commissioner, his report being Ex. P. W. 6/C which gives details of all that happened on 21-5-1952. I must presume that this report of Mr. Abhairaj Singh reached the Deputy Commissioner. The detailed report of Mr. Abhairaj Singh and the application Ex. P. B of Superintendent of Police made to the Deputy Commissioner apprised him of all the facts and it cannot be urged that he did not know what he was doing. The sanction Ex. P. C of the Deputy Commissioner dated 30-5-1952 gives, in my opinion, 'sufficient facts and I think that there is no substance in this objection'.

15. It was next urged that this sanction referred to a charge under Section 161, Indian Penal Code only, while there were two charges framed against the accused--one under Section 161, Indian Penal Code and another under Section 5(1)(d), Prevention of Corruption Act, In my opinion there is no 'substance in this objection'. The two sections in certain respects overlap and the sanction, even if it be granted for the sake of argument that it was only for an offence under Section 161, Indian Penal Code, is really a sanction for the prosecution of offences punishable under Section 161, Indian Penal Code, or Section 5(2), Prevention of Corruption Act.

16. It is next urged that there is no evidence in the case from which it can be concluded that this sum of Rs. 12/- was given to corrupt Nishan Singh. I have already given the facts of the case. It is urged that Darshan Singh is an accomplice and that his statement requires corroboration. It was urged on behalf of the State that his conduct is corroboration, his conduct being that he wanted certain copies and not being able to get those copies without payment of Rs. 12/- he made a report of this to the Inspector of Police, Sohan Lal and later on repeated his grievance before the Magistrate Mr. Abhairaj Singh and then repeated what had happened to the Court. It is urged that a repetition by a person any number of times does not corroborate. The corroboration must be from a source other than the person to be corroborated,

It is urged on behalf of the State that Tek Singh corroborated him. First of all Tek Singh is a relation of Darshan Singh and secondly in ray opinion Tek Singh and Darshan Singh were both acting jointly and they are both accomplices and therefore the statement made by Tek Singh would not corroborate the statement made by Darshan Singh. One accomplice cannot corroborate another. The corroboration must be by a person who is not an accomplice. It is next urged that the corroboration is by circumstances in so far as that at the time when the currency notes of Rs. 12/- were demanded from the accused by Mr. Abhairaj Singh Magistrate at the time of the raid the accused did not tell the Magistrate that this sum was not an illegal gratification but was what he subsequently alleged to be part payment of a loan of Rs. 25/- due from Darshan Singh to the accused. It is said that his silence at the time shows his guilt and is corroborative of the evidence of Darshan Singh. It was held in a case in England, -- 'R. v. Feigenbaum', (1919) 1 KB 431 (O), that silence may be corroboration but the authority of this case seems to have weakened in England; see Archbold's Criminal Pleading, Evidence and Practice, 1949 edition, pages 463-464.

It is also urged that in the present case though at the moment of time when the Magistrate demanded Rs. 12/- from the accused the accused did not give his story but did so immediately after reaching the Court Room of the Magistrate from the Copying Department Office. It is said that this interval of time taken to travel from the Copying Department to the Magistrate's Court Room was so short that the statement of the accused that this sum of Rs. 12/- was part payment of the loan given by the accused might be taken as his explanation given at the time regarding the sum of Rs. 12/-. There is something, to be said for this. It is further urged that besides this corroboration by silence there is no other corroboration in the case. In the case of -- 'Emperor v. Anwar Ali', AIR 1948 Lah 27 (P), decided by Cornelius and Falshaw JJ. Mr. Justice Cornelius said at p. 29-

'The weakness of the prosecution case as has been indicated already, consists in the fact that the statement of Mr. Bahi as to the reason why Anwar Ali took the money from him is not corroborated by any other evidence, oral or circumstantial. All the evidence for the prosecution conveys the impression that it was considered sufficient for establishing a case of bribery against the accused, that it should be proved that the marked notes passed from Mr. Bahi to him. Obviously, that is in fact not sufficient for establishing such an offence. Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocateur possess ingenuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function. Therefore, it is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness, that the money was received by the accused person for an illegal purpose.

Naturally, the decoy witness will be extremely keen that his trap should not -fail, and having in the forefront of his mind that the central thing is that the marked money should be passed to the intended victim, and assuming a certain elasticity of moral character in thedecoy witness, there is a real danger that he may pass on the money under some pretext which may perhaps not be guilty in the relevant sense or which may even be wholly innocent, but in giving his evidence may represent that he gave the money for the purpose relevant in the case, feeling confident that having taken care that the money was passed with as little publicity as possible; the case on this particular point will resolve itself into a conflict between his evidence on solemn affirmation and the statement of the accused person which must necessarily be made without an oath. If the prosecution had wished, there can be no doubt that they could have arranged for some person or persons to be within earshot of Mr. Bahi and the Ticket Collector throughout the proceedings'.

17. It is urged that this case is worse than the case which the learned Judges were dealing with in Lahore. There Mr. Bahi was a decoy witness but here Darshan Singh is a vitally interested witness and if corroboration was needed for Mr. Bahi's statement it is all the more essential that it should be needed for the statement of Darshan Singh or of his relation Tek Singh as Tek Singh was also as much interested as Darshan Singh. As observed by Cornelius J. if the prosecution had wished they could have arranged for some person to be within the earshot of Nishan Bingh and Darshan Singh and Tek Singh at the time of the passing of the money but though a police constable is said to have accompanied them to certain distance the evidence is that he came away and left the two to go alone to Nishan Singh. On the other hand it is urged that Darshan Singh had no enmity with the accused that he was like many others an applicant for certain copies & had nothing to do with the accused and that the story that he was indebted to the accused in the sum of Rs. 25/- out of which he had already paid Rs. 13/- and that Rs. 12/- was the balance due from him which was being paid that day, has been held by the Special Judge not to be proved. After going through the defence evidence regarding this matter I am of the same opinion as the Special Judge that this story of a sum of Rs. 25/- being due from Darshan Singh to the accused has not been proved.

18. Considering all the matters in this case I think it would be desirable that the facts of this case would also be examined by the Division Bench which would decide the general point of law which I have stated in the beginning of this order, in order to find out whether there is in law any corroboration of the accomplices' statements.

19. The papers will be laid before the Hon'ble the Chief Justice for the purpose of the constitution of a Division Bench. I suggest an early date for hearing as the question of jurisdiction is involved in a large number of cases.


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