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The State Vs. Gurcharan Singh - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 893 of 1949
Reported inAIR1952P& H89
ActsPrevention of Corruption Act, 1947 - Sections 5, 5(1) and 6; Indian Penal Code (IPC) - Sections 409; Code of Criminal Procedure (CrPC) , 1898 - Sections 197
AppellantThe State
RespondentGurcharan Singh
Appellant Advocate Bishan Narain, Adv. for;Adv. General
Respondent Advocate S. Gurdev Singh, Adv.
Cases ReferredPrasad Chandra v. Emperor
Excerpt: itself, then clearly apublic servant who has committed an offence falling eitherunder section 409 or section 5 (1) (c) of the act can betried on a charge under either of these sections. clearly, therewould be no difficulty whatever in accepting the positionof the state in tbe matter if act ii [2] of 1947 simplymade an offence already punishable undersection 409, penal code, punishable also under sectionsection (1) (c) & went no further. i do not, however,consider the fact that the cases relied on by craies& maxwell were prior to the act of 1889, or thedifference in the wording of section 33 of tbe act & s16, general clauses act, really have much effect onthe argument, or on the principles set forth bycraiea & max well which are obviously fundamentalprinciples governing the..........section 5, prtiveniionof corruption act, acs ii(2) of 1947, remained inforce, section 409, penalcode, so far as it relatedto offences by publicservants, stood effect this decisionmeant that if a publicservant was alleged tohave com-mitted an offencewhich fell either undersection 409, penal code,or section 5 (1) (c)prevention of corrup-tionact, be could only beprosecuted under thelatter section, & in tbatcase the sanction of theappropriate authoritymentioned in section 6,prevention of corruption.act, was necessary beforeany court could takecognizance of the case. itis not disputed that forthe case under section 409,penal code, againstgurcharan singh no sanc-tion of any authorityhad been obtained. thelearned trial magistraterightly felt that he wasbound by this.....

Falshaw, J.

1. The circumstances givingrise to-this reference bythe learned Ses. J. atDelhi, Criminal Revision893 of 1949, are asfollows. Gurcharan Singhrespondent was formerly em-ployed as a Held Inspectorin the office of theCustodian of Evacuees'Probity & it is alleged thatwhile acting in thiscapacity he misappropriated some evacuees'property over which he haddominion. The casa wasfirst registered as a resultof report to the police on 2-1- 948, & as a result of theinvestigation by thepolice Gur-charan Singhwas arrested on 31 4 1948, &released; on ail on thefollowing day, the 1stof May. The chalan wasactually put into theCourt of a Magistrate on 23-7-1948, under Section 409,Penal Code. On 18 8 1948,preliminary objections tothe legality of theCourt's proceeding withthe trial were raised onbehalf of the accused.These objections wereprimarily based on mydecision in Cri. Revn. No.191 of 1948 decided on 18-71948, in which I held thatas long as the provisionsof Section 5, Prtiveniionof Corruption Act, ACS II(2) of 1947, remained inforce, Section 409, PenalCode, so far as it relatedto offences by publicservants, stood repealed.In effect this decisionmeant that if a publicservant was alleged tohave com-mitted an offencewhich fell either underSection 409, Penal Code,or Section 5 (1) (c)Prevention of Corrup-tionAct, be could only beprosecuted under thelatter section, & in tbatcase the sanction of theappropriate authoritymentioned in Section 6,Prevention of Corruption.Act, was necessary beforeany Court could takecognizance of the case. Itis not disputed that forthe case under Section 409,Penal Code, againstGurcharan Singh no sanc-tion of any authorityhad been obtained. Thelearned trial Magistraterightly felt that he wasbound by this decision, &he; also rejected anotherground on which it wascontended on behalf of theCrown that the case couldcontinue notwithstandingmy decision. Thiscontention was that at thetime when the Court tookcognizance of the caseGuroharan Singh was nolonger a public servant.It is in fact not in disputethat he was discharged fromGovt. service on 8-5-19(sic)8. i. e., on a dateintervening between the dateon which his bailapplication had beenentertained & accepted & theda e on which the actualchalan was presentedbefore the Court. Thelearned Magistrate,however, was of theopinion that he had takencognizance of the case onthe 1st of May when heapplied his mind to the facta of the case in dealingwith the bail applicationof the accused. Hetherefore heldthat the case could not The Mate (Cr R. No. 779 ofproceed without the 1950), in which inter aliasanction of the the effect of the Preappropriate authority vention of Corruption Actmentioned in Section 6 of of 1947 on Section 409.Act 11 [2] of 1947 and he Penal Code, istherefore discharged the involved.

2. The first questionrevision petition was to be decided is whetherfiled on behalf of the it was correctly decidedCrown in the Court of by me in Criminal Revn.the learned Sss. J., who, No. 191 of 1948 that asby his order dated 13-7- long as Section 6 of Act1949, held that he was II (2) of 1947 remains inbound by my decision force Section 409 Penalregarding the section Code, pro tanto standsunder which proceedings repealed as regardsmust be taken against the offences alleged to haveaccused, but at been committed by publicthe same time, after ser-vauta. This questionconsidering the relevant obviously requires consiauthorities, held that deration of the scheme &Gurcharan; Singh was no purpose of Act II [2] oflonger a public servant 1947, which came intowhen the trial Court took force on 11-3-1947. It iscognizance of the case & headed 'An Act for thethat therefore no more effective preventionprevious sanction of bribery & corruption' &under; Section 6, the opening words of thePrevention of Act itself are 'whereas itCorruption Act was is expedient to make morenecessary. He accordingly effective provision forforwarded the case to this the prevention of briberyCourt with the re- & corruption; it is herebycommendation that the enacted as follows.''order of the trial Magis Section 1 deals with thetrate discharging the short title, extent &accused; be set aside, & duration of tho Act,the case remanded to him regarding which it isfor proceeding with it sufficient to say that Sub-according to law. When the section (3) pro. videscase came before a learned that Section 5 shallSingle Judge for admission remain in force for aho considered the point period of three years frominvolved important enough the commencement of thefor refer-ence to a Act, & this has now beenDivision Bench. The case extended by a furtherhas accordingly been heard period of two us along with four Section 2 merely providesother revision petitions, thatBalwant Rai v. The Grown for the purposes of the(or. b. no. 398 of 1949) Act 'public servant'Major T. S. Oill v. The means a public servant asState (Cr R. No. 1073 of defined in Section 21,1949), Captain Ram Parkash Penal Code. Section 3v. The Crown (cr. B. No 6 provides thatof 1950) & bharah Singh v. notwithstanding anythingcontained in the Criminal of corruption may fairlyP. C. offences punishable be drawn. Section 5under Section 161 or 165. proceeds to deal with thePenal Code, shall be offence of criminaldeemed to be cognizable misconduct in discharge ofoffences for the pur-poses official duty. The sectionof the Criminal P C. with reads:

' (1) Aan order from a first public servant is Bald toclass Magistrate no Police commit the offence ofOfficer below the rank of criminal misconduct in theDeputy discharge of bis duty:

Superintendent shall (a) if heeither investigate such an habitually accepts oroffence or make any arrest obtains or agrees towithout a warrant. Section accept or attempts to4 is more revolutionary, obtain from any person forsince without mentioning himself or for any otherthe Evidence Act person, any gratificationspecifically it modifies (other than legalcertain provisions of this remuneration) as a motiveAct by implication, since or reward such as isit provides that whore in mentioned in Section 161,the trial of an offence Penal Code or

under Section 161 or 165, (b) if he habituallyPenal Code, it is proved accepts or obtains orthat an accused person has agrees to accept oraccepted or obtained, or attempts to obtain foragreed to accept or himself or for any otherattempted to obtain, for person, any valuable thinghimself or any other without consideration orperson, any gratification for a consideration whichother than legal he knows to be inadequate,remuneration or any from any person whom bevaluable thing it shall be knows to have been, or topresumed unless the be, or to be likely to becontrary is proved that he concerned in anyaccepted or obtained, or proceeding or businessagreed to accept or transacted or about to beattompted to obtain, that transacted by him orgratification or that having any connection withvaluable thing, as the the official functions ofcase may be, as a motive himself or of any publioor reward such as is servant to whom he ismentioned in the said subordinate, or from anySection 161 or, as the person whom he knows to becase may be, without interested in or relatedconsideration or for a to be person so concerned,consideration which he or

knows to be inadequate. (c) if he dishonestlyThere is, however, a or fraudulentlyproviso that the Court may misappropriates ordecline to draw such a otherwise converts for hispresumption if the gratifi own use any propertycation or thing aforesaid entrusted to him or underis in its opinion so his control as a publictrivial that no inference servant or allows anyother person so to do, or

(d) if ho, by corruptor illegal means or byotherwise abusing hisposition as public servantobtains for himself or forany other parson anyvaluable thing or pecuniary advantage.

2. Any publio servantwho commits criminalmisconduct in thodischarge of bis dutyshall be punishable withimprisonment for a termwhich may extend to sevenyears, or with fine, orwith both.

3. In any trial of anoffence punishable underSub-section (2) the factthat the accused person orany other person on hisbehalf is in possession,for which the accusedperson cannotsatisfactorily account, ofpecuniary resources orproperty disproportionateto his known sources ofincome may he proved, & onsuch proof the Court shallpresume, unless thecontrary is proved thatthe accused person isguilty of criminalmisconduct in thedischarge of his officialduty & his convictiontherefor shall not beinvalid by reason onlythat it is based solely onsuch presumption.'

3. The next S. No. 6refers to sanction torprosecution & reads :

'No Court shall take cognizance of an offence punish-able under Section 161 or Section 165, Penal Gode or underSub-section (2) of Section 6 of this Act, alleged to havebeen committed by a public servant except with theprevious sanction :

(a) in the case of a person who isemployed in connection with the affairs of the Federation& is not removable from bis office save by or with thesanction of the Central Govt. or some higher authority,Central Govt.;

(b) in the oase of a person who is employed in connection with the afiaira of a Province and is not removablefrom his office save by or with the sanction of the Provincial Govt. of some higher authority, Provincial Govt.;

(e) In the case of any other person of the authoritycompetent to remove him from his office.' Finally Section7 provides that any person charged with an offencepunishable under Section 161 or 165, Penal Code or underSub-section (2) of Section 5 of the Act shall be acompetent witness for the defence & may give evidence onoath in disproof of the charges made against him or anyperson charged together with him at the same trial, & thenfollow certain safeguards regarding its being optional forthe accused to appear as his own witness, & regarding theabsence of any presumption against him if he does notchoose to appear ag a witness, and the nature of thequestions which can be asked from him if he does so.

[d] The effects of the Act may now be summed up asfollows :

(I) Public Servants accused of having committed offences under Sections 161 & 165, Penal Code, maystill be tried on charges under those actual sections, bateven so their trials will be governed by the other changesintroduced by the Act regarding the presumptions to bedrawn against them, the necessity for the sanction of theappropriate authority under Section 6, & the privilege ofthe accused to give evidence on oath ag a competentwitness if he so desires under Section 7.

(II) Sub-sections (1) & (2) of Section 5 are more orless based on Sections 161 & 165, Penal Code, but createnew offences by somewhat enlarging the scope of thosesections. Section 5 (1) (d) creates a new offence ofobtain-ing favours by abuse of official position. Section5 (1) (c), with which we ave primarily concerned in thiscase is for all practical purposes the same as Section409, Penal Code, so far as it relates to offences bypublic servants, & it is difficult if not impossible toconceive of any such offence committed by a public servantwhich would be puniahable under one of these sections ¬ under the other.

(III) A radical change ia introduced regarding thenecessity for previousaanctbn for prosecution. This aspect of the prosecution ofpublic servantswas hitherto governed entirely by the provisions ofSection 197, Criminal P. C.,

Sub-section (1) of which reads :

'When any person who is a Judge withinthe meaning of Section 19, Penal Code, or when anyMagistrate, or when any public servant who'is aotremovable from his office save by or with the sanction ofa Provincial Govt or some higher authority is accused ofany offence alleged to have been committed by him whileacting or purport-ing to act in the discharge of Msofficial duty, no Court shall take cognizannce of suchoffence except with the previous sanction.

(a) in the case of a person employed inconnection with the affairs ot the Federation, of theGovernor General exercising his individual judgment. &

(b) in the case of a person employed in connectionwith the allaira of a Province, of the Governor of thatProvince exercising his individual judgment.'

Thus two major changes have been introduced by the newAct. The first of these is that while under Section 197the sanction of the Governor-General or the ProvincialGovernor, as the case may be, was only necessary for theprosecution of public servants who were not removable fromtheir offices save with tho sanction of the Central Govt,or the Provincial Govt. respectively, no suchqualification ia contained in Section 6 in which the wordsused are 'committed by a public servant.' Thus under theCriminal P. C. no sanction was ever required to prosecutea public servant removable by a leaser authority then theProvinoial or Central Govt. whereas cow the sanction ofthe appropriate authority is necessary for the prosecutionof any public servant however subordinate, allowed to havecommitted an offence under Section 161 or 165, Penal Codeor under Section 6 of the Act. The second change is thatintrocuced by the omission in Section 6 of the Act of thewords appearing in Section 197 'while acting or purportingto act in the discharge of his official duty.' Thisomission appears to be deliberate. & to have been made inconsequence of decisions of various High Courts & theFederal Court to tbe effect that an officer who hadaccepted a bribe or embezzled Government property wasneither acting nor pun-porting to act in the discharge ofhis official duty, & that therefore no sanction for hiaprosecution was necessary. The sanction of the appropriateauthority is therefore now necessary for the prosecutionof any public servant under the Act.

(IV) Another major change is the introduction bySection 7 of the Act of the Privilege of an accused personin a case under s. 161 or 165, Penal Code, or Section 5 oftho Act, to appear as a competent witness and giveevidence on oath in disproof of the charges made againsthim or any other co-accused. So far as I am aware this isthe first granting of such privilege to a person on trialfor a criminal offence in this country. Thus althoughneither tho provisions of Section 843 (4), Criminal P. C.which specifically states that no oath shall beadministered to the accused; & the latter part of Section5 of the Oaths Act of 1873. which provides that nothingherein contained shall render it lawful to administer in acriminal proceeding an oath or affirmation to the accusedperson, are mentioned at all in Section 7, theseprovisions of law are clearly repealed by Section 7 fortue purpose of trials under the Act,

(V) There is also ono important change regarding thesentence for embezzlement by a public servant. The penalClause Section 5 (2) fixes a maximum sentence of sevenyears imprisonment or a fine or both, for the offences setout in Section 5(1) (a) (b) (e) & (d), whereas underSection 409, Penal Code, the words regarding sentence read:

'shall be punished with transportation forlife, or with imprisonment of either description for aterm which may extend to ten years, & shall also be liableto fine.'

Thus not only is tbe maximum term of imprisonmentunder Section 5 (2) for an offence under Section 6 (1) (c)considerably leas than that under Section 409, Penal Code,but also under Section 409, Penal Code, a sentence ofimprisonment is mandatory, while under Section 5 (2) theRent once need only be a fine without any sentence ofimprisonment.

5. The question before us is whether in view of thesechanges introduced by Act II (2) of 1947, particularlyregarding the necessity for previous sanction of theappropriate authority for prosecution, the right of theaccused to give evidence as a witness & the charge ofsentence, it is now open to the authorities concerned,when a public servant is accused of committing aa offencewhich would be punishable either under a. 409, Penal Cede,orSection 5 (1)(c) of the Act, to choose which of these twosections the offender should be prosecuted under,& by choosing to proceed under s. 409, Penal Code, todispense with the necessity for any previous sanction inthe case of a public servant removable from office by anauthority subordinate to the Provincial or Central Govt.,& also to deny him the privilege of giving evidence onoath aa a competent witness on his own behalf. Primafacie, it would appear to be unlikely that this was theintention of the Legislature when it passed Act II [2] of1947, the avowed object of which was to deal moreeffectively wtth bribery & corruption of public servants,for which purpose the prevalent forms of these offenceswere collected into a single Act & what was thought to bea more effective procedure for trying offences of thisbind was introduced. The general impression that Section S(1) (c) was intended to supersede Section 409, Penal Code,for offences of this type committed by public servants isgreatly strengthened by the fact that the Act specificallyprovidesfor the trial of offences under Sections 161 &165, Penal Code, with the procedural changes introduced bythe Act, whereas Section 409, Penal Code, is nowherementioned in the Act. On behalf of the State reliance waschiefly placed, as it was before me in tbe previous case,on the provisions of Section 26, General Clauses Act,which reads :

'Where an act or omission constitutes anoffence under two or more enactments, then the offendershall be liable to be prosecuted & punished tinder eitheror any of those enactments, bat shall not be liable to bepunished twice for the dame offence '

If this section is taken by itself, then clearly apublic servant who has committed an offence falling eitherunder Section 409 or Section 5 (1) (c) of the Act can betried on a charge under either of these sections. & theonly limitation is that he cannot be convicted & sentencedfor the same offence under both of them. Clearly, therewould be no difficulty whatever in accepting the positionof the State in tbe matter if Act II [2] of 1947 simplymade an offence already punishable underSection 409, Penal Code, punishable also under SectionSection (1) (c) & went no further. There are, however, thethree important changes regarding sanction, the right ofthe accused to give evidence on oath and the change in thequantum & nature of tbe sentence to be taken intoconsideration and they certainly complicate thequestion.

6. There is no doubt, as was contended by Mr. BishanNarain on behalf of the State that as a matter of generalprinciple repeal by implication is not favoured. Thereare, however, obviously exceptions to this generalprinciple. Such a case arose when a Full Bench consistingof seven Judges of the Lahore High Court considered theinconsistent provisions of Section 162, Criminal P. C. &Section; 27, Evidence Act, both of which were fundamentalacts of long stand, ing, regarding tbe admissibility ofstatements made by accused persons in Police custody & itwas held by the whole Court, the decision being reportedin Hakam Khuda v. Emperor, A.I.R, (37) 1940 Lah iss, thatSection 162, Criminal P. C., the later Act, repealedSection 27, Evidence Act. This decision was not reversedby ary higher Court. & as a matter of fact Section 163,Criminal P C., was subsequently amended so as to leave theprovisions of Section 27. Evidence Act, intact. In spiteof the fast that nearly two & a half years have elapsedsince my earlier decision on the point in dispute, theredees not appear to be any decision of any of tbe HighCourts in India, or the Federal Court or the SupremeCourt, in which the same point has been considered, & inmy opinion the most relevant authorities are still thepassages from Craies on Statute Law, & Maxwell on theInterpretation of Statutes on which my earlier decisionwas mainly based. The first of these passages from Craies,p. 314, reads as follows:

'In R. v. Judge of Essex County Court, (1887)18 Q. B. D. 704 Esher M. R. laid it down aa an ordinaryrule of contruction that where the Legislature has passeda new statute giving a new remedy, that remedy alone canbe followed. But the phrase 'new' as applied to a statuteis either needless or ambiguous. The old distinctionbetween 'velara' & 'nova slatula' is obso etc; & the word'new' is insensible unless applied to statutes creatingrights or readies unknown to the common law or to previousenactments. And for modern use the rule could perhaps bemore accurately laid down thus. In the case of an Actwhich crtates a new jurisdiction, a new procedure, newforms or new remedies tha procedure & no others, must befollowed until altered by subsequentlegislation.'

The following passage is also from Craies, p. 315

'In Middleton v. Crofts, (1786) 2 Atk.650, Lord Hardwicke said : 'Sobsequent Acts of Parliamentin the affirmative giving new penalties & institution newmodes of proceeding, do not repeal former methods &penalties; ordained by preceding Acts without negativewords.' 'if, however,' as Lord Campbell said in Mitchellv. Brown (1859) 28 L. 3 M. O. 53, 'a later statute againdescribes an offence which had been previously created bya former statute & affixes a different punishment to it &varies; the procedure, or if the later enactment expresslyaltered the quality of the offence aa by making it amisdemeanour instead of a felony or a felony insteadof a misdemeanour, tie later enactment must be taken asoperating by say of substitution & not cumulatlvely.' Thenext passage ia from p. 195 of Maxwell : 'Indeed, it has been laid down generally,that if a later statute again describes an offence createdby a former one & affixes a different punishment to it.vary-ing the procedure --giving, for instance, nn appealwhere there was no appeal before--the earlier statute iaim-pllediy repealed by it.'

7. As against these passages of undoubted weight, theonly fresh argument which Mr. Bishan Naram was able toadvance was that the cases on which they were based wereprior to the enactment of the English Interpretation Actof 1889 which in some respects ia similar to the IndianGeneral Clauses Act. Section 33 of thia Act reads :

Where an act or omission constitutes anoffence under two or more Acts or both under an Act and atcommon law, whether any such Act was passed before orafter the commencement of this Act, the offender shall,unless the contrary intention appears, be liable to boprosecuted & punished under either or any of those Acts orat common law, but shall not be liable to be punishedtwice for the same offence.'

In essence this section is the same as Section26, General Clauses Act, the only change of anyimportance being the introduction of the words in theEnglish Act 'unless the contrary intention appears' whichdo not appear in the Indian Act. I do not, however,consider the fact that the cases relied on by Craies& Maxwell were prior to the Act of 1889, or thedifference in the wording of Section 33 of tbe Act & S16, General Clauses Act, really have much effect onthe argument, or on the principles set forth byCraiea & Max well which are obviously fundamentalprinciples governing the interpretation of statutes. I donot consider that the ternn of Section 26, GeneralClauses Act, broad aa they are, prealude the possibilityof repeal by implication & in order to decide thepoint it is again necessary to consider the pro-visionsof Act II [2] of 1947. There ia no doubt whatever thatthia Act dues repeal by implication certain otherprovisions in existing statutes. As I have alreadypointed out, Section 7 repeals by impli-ca ion, withoutmentioning them, certain provi-aions in Section 342 ofthe Criminal P. C. & Section (sic) Oaths Act. Thepresumptions raised in Section 4 & Section 6 (sic) alsomodify, & to that extent repeal certain provisions of theEvidence Act without mentioning this Act. The onlyprovisions in the Act which expressly repeal or modifyprovisions of other statutes are those by which offenaegtinker ss. 161 & 165, Penal Code, are made cognizableoffences, & those by which investigation or arrest withouta warrant are taken away from Police Officers underthe rank of Deputy Superintendent of Police,theae being only minor changes. The majoramendments to existing statutes in the Act are allonly by implication, & it is therefore not difficultto come to the conclusion of an offence underSection 409, Penal Code, by a public servant in Section 6(1) (c) also intended to supersede Section 409, PenalCode, so far as is concerns public servants by Section5 (1) (c), & to apply the procedural& other changes contained in the Act to publicservants who committed offences punishable previouslyunder Section 409, Penal Code. To hold other. wise woutdlead to an anomalous situation & I must confess tbat I amunable to understand the attitude of the State in wishingstill to have the liberty to proceed againat publicservants under Section 408, Penal Code, & thereby denythem the benefits of Act II [2] of 1947 including theright to appear as witnesses the necessity of sanction fortheir prosecution, & the possibility not only of receivinga lesser maximum sentence of imprisonment, but also of notbeing sentenced to any imprisonment at all on conviction.I would therefore adhere to my previous decision & holdagain that as long as Section 6 of Act II [2] of 1947remains in force the provisions of Section 409, PenalCode, so far as they concern offences by public servantsare pro tanto repealed by Section 5 (1) (c) of Act II [2]of 1947.

8. The other question for consideration is the effectof the fact that Gurcharan Singh respon-dent had beenremoved from public service before the chalan in the caseagainst him was put into Court. This question falls intotwo parts, the first being whether the word 'is' inthe phrase 'is employed' which is used both in Section197, Criminal P C. & in Sub-section (a) A&(b) of Section6 of Act II [2] of 1947 refers to the date on whichthe alleged offence was committid, or to the date onwhich the Court takes cognizance of the case, & thesecond being whether in the present case the Courttook cognizance of the case on the date on which thechalan was presented before it, or on the date onwhich immediately following his arrest; the accusedapplied for & was granted bail. There is no doubt that onthe first of these points the weight of authority is veryheavily on the side of the State. There are twodecisions reported as Sugan Chand v. Narain Das, A. I. R.(19) 193(sic) Sind 177 and In re Section 7. Patil. A. I.R. (24) 1937 Nag. 293 in which the Courts took the viewthat the word 'is' in Section 19(sic), Criminal P. C.referred to the time of the commission of the allegedoffence, & not to the date on which the Court tookcognizance of the case but these views have been dissentedfrom in Suraj Narain v. Emperor, a. I B. (25) 1938ALL. 613; Prasad Chandra v. Emperor, A. I. R. (30) 943cal. 527 & Empe-ror v. P. A. Joshi, A. I R. (35)1918 Bom, 248. There are as yet apparently nodecided cases under Section 6 of Act II (2) of 1947; butboth in Section 197, Criminal P C., & in this sectionthe relevant words are similar. The essendal part ofSection 197reads:

or when any public servant who ia notremovable from his office .... is accused of any offence..... no Court shall take cognizance of suchoffence'.

& the relevant words of Section 6 are:

'No Court shall take cognizance of an offencealleged to have been committed by a public servant, exceptwith the previous sanction .... in the case of a personwho is employed:

In view of this form of wording in the two sectionsclearly the same principles would apply to them in thismatter. The views of the Calcutta and Bombay High Courtswere that without any doubt the protection afforded bySection 197, Criminal P. C. was only intended to be enjoyedby Judges, Magistrates & other public servants while stillin office, and that no sanction was necessary for theprosecution of a Govt. servant who had already beendischarged from service before the case was brought againsthim, & I entirely agree with this interpretation.

9. Finally there is the question whether the trialCourt could be said to have taken cognizance of the casemerely by entertaining the respondent's bail applicationwhile he was still a public servant a week before he wasdischarged from service. In my opinion the view of thelearned Ses. J. on this point was correct. It is not clearhow the respondent's bail application came to he filed inthe Court of this particular Magistrate, but it is suggestedthat the reason was that the learned Magistrate was aSpecial Magistrate dealing generally with cases of thistype. It is, however, quite clear that at the time the bailapplication was filed and accepted by him the investigationwas still far from complete, and that at a later stageeither the case might be withdrawn, or it might go to theCourt of some other Magistrate. Admittedly the meaning ofthe phrase 'taking cognizance' has not been preciselydefined in the Code of Criminal Procedure, but, as thelearned Sessions Judge has pointed out, bail applicationsare frequently considered both by Ses. J. & by the HighCourt during the preliminary stages of cases and yet Section193, Criminal P. C. provides that no Sessions Court shalltake cognizance of any offence as a Court of original jurisdiction unless the accused has been duly committed, andSection 194 provides for the circumstances under which aHigh Court may take cognizance of any offence. From this itcan be deduced that the term 'taking cognizance' has noconnection with entertaining a bail application while a caseis still at the stage of a Police Investigation. Moreovermany bail applications are dealt with by so-called 'duty'Magistrates, in whose case it is merely a coincidence ifthey subsequently have to deal with. Particular cases inwhich they have already dealt with bail application in theircapacity as duty Magistrates. I therefore agree with theview that dealing with a bail application is something quiteseparate & distinct from taking cognizance of a case.

10. The net result is that while the case against therespondent must proceed against him under Section 5 (1) (c)of Act II (2) of 1947, the case can proceed without anysanction as provided in Section 6 of the Act. I wouldaccordingly accept the recommendation of the learned Ses. J.& set aside the order ot the trial Court discharging theaccused and remand the case to it for trial according tolaw. The other revision petitions which were put up forhearing along with this may now be returned for hearing bysingle Judges & decision on the various points involved inthe light of the decision on the first point decidedabove.

11. Khosla, J.

I agree.

Case remanded.

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