1. Forty -four persons were committed for trial under Section 120B read with Sections 465, 466 and 471, Indian Penal Code , to the Court of Session, Jullendur, on a charge of criminal consipracy, having a plurality of objects , namely to obtain fraudulently passports from persons at various places in the Punjab, to insert false and forged entries and photographs in them, and to use such forged passports and other travel documents for travelling to United Kingdom , Two of them, including Manmohan Singh Johal, were also charged for the substantive offence under Section 466, Indian Penal Code. They were tried by Shri C. G. Suri, EX- Offico Additional Session Judge , Jullundur, Thirty -six of these accused persons were passengers , hailing mostly from the Jullundur District of Punjab . Out of these passenger accused, the learned trial Judge has acquitted 15, and convicted the rest and sentenced each of them to imprisonment till the rising of the court and a fine of RS. 101/- Out of the accused catalogued as 'Travel agents or their employees functioning in Jullundur in the year 1959', the learned trial Judge has acquited accused Nos. 40, 41, and 43 an convicted the rest.
2. Manmohan Singh Johal (Accused No. 37) has been convicted under Section 120B read with Section 471 of the Penal Code, and sentenced to 5 Years ' rigorous imprisonment and a fine of Rs. 50,000 /- and in default of payment of fine, to undergo 2 years' further rigorous imprisonment. He has been further convicted under Section 466 . Indian Penal Code , and sentenced to 5 years' rigorous imprisonment, with the direction that the sentences on both the counts shall run concurrently.
3. Amrit Lal Kapila (Accused No. 38), has been convicted under Section 120B read with Section 471 of the Penal Code, and sentenced to 3 Years' rigorous imprisonment and a fine of Rs. 10,000/- and, in default , to undergo further rigorous imprisonment for one year.
4. Kashmira Singh (Accused No. 44) , has also been convicted.
5. Harbhajan Singh Sanghera (Accused No. 39) has been convicted under Section 120B read with S. 471, Indian Penal Code, and sentenced to 3 years' rigorous imprisonment and a fine of Rs. 10,000/- or, in default of payment of fine, to undergo further rigorous imprisonment of one year.
6. A. Joseph Verghese (Accused No. 42) who was the Port Registration Officer at Cochin from where the passenger accused had sailed has been convicted under Section 120B read with S. 471 Indian Penal Code, and sentenced to 6 months' rigorous imprisonment.
7.Out of the 26 convicts, only 4, namely, Manmohan Singh Johal, Amrit Lal Kapila, Harbhajan Singh Sanghera, and A. Joseph Verghese have preferred Criminal Appeals 121 , 119, 118 and 120 of 1965, respectively , against their conviction, to the Court , This Judgment will dispose of all four appeals.
8. The facts of the Prosecution Case, in brief are as follows:
On the 9th October, 1959 , 'M. V. Neptunia' said from Cochin Port carrying 188 Passengers, 80 had been booked with the shipping Agents Messrs Volkart Brothers of Cochin bythe 'Ranjit Travel Agency', (hereinafter referred to as the R. T. A.) Jullundur, of which Manmohan Singh Johal, Accused No. 37 was th sole Proprietor , Amrit Lal Kapila , Accused No. 38 was the manager, and Tilak Ram, Accused No. 43 and Kashmira Singh, Accused No., 44 were employees. The last named was working as motor-driver to Manmohan Singh Johal, proprietor of the R. T. A. 'M. V. Roma' , belonging to Messrs. Laura Lines sailed from Cochin Port on the 14th October , 1959. Jit Singh (Accused No. 36) , who was also booked by the R. T. A. with Messrs. Harrison and Cross-fields , Shipping Agents sailed by that ship.
The passengers of both the aforesaid ships that sailed on the 9th and 14th October, 1959, were cleared at the port by Joseph Verghese (Accused No. 42) , Accused Nos 1 to 35 disembarked at Genoa on or about the 23rd October, 1959, and went by trian to London where they were checked and found travelling with forged travel documents, Mr. K. R. Sood Of the Indian High Commission in London made enquiries from the passengers and recorded their statements in a set form. Thereafter, these passenger-accused, including Jit Singh (Accused No. 36 ) were sent to India.
After obtaining the consent of th Punjab Government under Section 196-A of the code of Criminal Procedure (the validity of which is hotly disputed in this case), all the aforesaid 44 accused were challenged in the Court of a Magistrate at Jullunder, who, after making a preliminary judicial enquiry, charged and committed them for trial to the Court of Session with the aforesaid result.
9. The first point of law raised by Mr. Chari the learned counsel for Amrit Lal Kapila, Accused No. 38, is that the trial in this case was invalid because no complaint as contemplated by S. 196-A , Criminal Procedure Code, was made in this case, It is maintained that in Section 196-A (1), the use f the expression 'the object of the conspiracy' indicates clearly th goal to be achieved. It means the ultimate object which is sought to be achieved by the conspiracy. The object in ths case as disclosed by the charge-sheet says Mr. Chari, was to send people to England, which by itself was not an offence or an illegal act, though it was sought to be achieved by illegal means i.e., forging of passports an other travel documents. According to the counsel, the expression 'illegal means' embraces both aspects of wrong, civil wrngs as well as criminal offences. It is urged that in these circumstances , sub-Section (1) and not sub-Section (2) of Section 196-A was applicable. Since the cognzance in this case was tzken on police repolrt and niot on a complaint the proceedings were null and void ab initio.
10. Though this argument is ingenious and plausible, yet on a careful consideration , in the circumstances of the case, it will appear to be untenable., A glance at the charge-sheet would show that the conspiracy with which the accused were charged had a plurality of objects, including the commission of offences viz., to forge passports and other travel documents and to fraudulently or dishonestly use as genuine those forged documents . Thus, the salient intention and design of the conspiration was to prepare false documents for enabling the passengers to go abroad. Ig is wrong to say that there can be only one object of a conspiracy. Nor is it permissible, in my opinion , to make a distinction between the primary or subsidiary object of a conspiracy. In its dictionary sense, the word 'object' is of very wide amplitude . It means 'that about which any power or faculty is employed'; 'that towards which the mind is directed in any of its states or activities';' that for the attainment of which efforts are directed';' The term 'object' 's synonymous with 'aim', end. 'design', 'purpose' or 'view'. Conspiracy, therefore, can be hatched with a series of objects in view.
11. This argument was raised before Groover J. in Sardul Singh v. State, 1967 Delhi L. T. 344 Criminal Appeal No. 97-D of 1963 (Delhi) . It was rejected with these observations:
'I find it difficult to accede to the contention of th learned counsel for the appellants of th learned counsel for the appellants that the prime object of th conspiracy was to send the passengers abroad. The dominant intention apparently was to make spurious documents******The principle and main object was to forge and to use forged documents fr enabling the passengers to g abroad ..............It can well be said that in the present case th object of the conspiracy was to do the various acts which have been stated in the charge of alternatively what was stated in the police report on which th cognizance of th offence was taken . Nevertheless the object was such as would attract the applicability f clause (2) of S. 196-A and not clause (1).'
12. I am in respectful agreement with the above observations. The facts of Sardul Singh's case, 1967 Delhi LT 344 == Cri App. No. 97-D of 1963 (Delhi) were similar. Indeed, Mr. H. L. Sibal, the learned counsel for Manmohan Singh Johal appellant has conceded that sub-Section (1) would apply.
13. The next legal objection which was raised in the alternative by; Mr. Chari and was canvassed at length by Mr. H. L. Sibal, is, that sanction for prosecution , as contemplated by the code of Criminal Procedure is not a routine, mechanical executive act, but is a decision of policy which has to be taken by the Minister , Counsel of Ministers, or th Governor, According to Mr. Chari this power could not be delegated by; the Minister to th Home Secretary. Mr. Sibal, however, is not rigid in his contention that this power to accord sanction to consent under sub-Section (2) of S. 196-A , Criminal Procedure Code, could not be delegated by the Governor to th Home Secretary. He has laid stress on the fact that this power had not been delegated by the Governor or the Minister to the Home Secretary, who had consequently no authority to take a decision in the matter at his own level without reference to the Minster.
14. It is emphasised that the recital in th consent, Exhibit P. 303 to the effect, that the Governor of Punjab was pleased to give his sanction to the initiation of these proceedings, had been shown to be factually wrong. Thus, the essential prerequisite for prosecution of the accused persons in respect of an offence under Section 120B read with Sections 465, 466 and 471 fo the Indian Penal Code was missing, and their trial on that charge was null and void. Mr. Sibal has referred to the Rules of Business framed by the Governor under Article 166 of th Constitution. He has stressed that the Rules in Part I, Exhibit C. W. 1/1 , framed by the Governor , concern only the allocation of business among the Ministers, while the Rules relating to th transaction of business are to be found in Part II, Mr. Sibal points out that there is nothing in the Rules of Business (Exhibit C. W. 1/1 and C/ W. 1 /2 ) giving specifically or by necessary implications , powers to the Home Secretary to give consent f initiation of proceedings under Section 196-A , Criminal Procedure Code, on behalf of the Government . The Rules in Part I (Exhibit C. W. 1/1 ) only classify the Departments and prescribe a channel through which the business of th Government is to be carried on by the counsel of Ministers, or th Minister under whose charge the Department has been placed by the Governor . In the view of the learned counsel, these Rules do not delegate the various item of business enumerated therein to the Secretaries, On the contrary, Rule 18 (Exhibit C. W. 1/2 ) of the Rules of Business of th Punjab Government expressly says that cases shall ordinarily be disposed of by or under the authority of th Minster-in-charge who may, by means of standing orders, give such direction as he thinks fit for th disposal of cases in the Department. No such standing order authorising the Home Secretary to accord sanction for prosecution under Section 196-A , Criminal Procedure Code, has been produced.
14A. In anticipation of the arguments f the learned counsel for the State , Mr. Sibal contends that he is not challenging the validity of th consent order, Exhibit P. 303 , on the ground that it is not an order or instrument made or executed in accordance with law, and that the recital in the order is wrong. It is urge that Clause (1) of Article 166 postulates that there should be a previously passed order of the Government, which means an order passed b;y the Minister- in- charge or the counsel of Minster's and only thereafter the question of expressing that order or decision to have been taken in the name of the Governor would arise. According to the learned counsel, if there is no order of the Government passed in accordance with the Rules of Business of the Punjab Government, but of secretary not authorised by the Government , its expression in the name of the Governor or it subsequent authentication under clause (2) of Article 166 would not afford any immunity against an attack on the ground that the order was not in accordance with law.
15. In support of his contention, Mr. Sibal has relied upon state v. Smt. Kartar Devi , 1968 Cur LJ 18 ; (!968 Cri LJ 709) (Pb & Haar); Tara Chand Verma v. State , 63 Pun LR 238 :( AIR 1961 Punj 333); Criminal Appeal No. 388 of 1963, Rachpal Singh v. Satate decided by a Single Bench of this Court on 14-8-1964 (Punj); Criminal Appeal No. 956 of 1964, state v. Bishan Aarup Dalwala, decided by; a Division Bench of this Court on 29-11-1965 (Punj); Emperor v. Sibnaath Banerjee, AIR 1945 P. C. 156; State of Bihar v. Rani Sonabati Kumari, AIR 1961 S, C. 221 Tulsi Ram v. Statge of Uttar Pradesh, AIR 1963 SC 666: parkash Chandra v. Union of India, AIR 1965 Punj 270 (D. B.) ; and M/s Bijoya Lakshmio Cotton Mills ltd. v. State of West Bengal AIR 1967 SC 1145.
16 .In reply Mr. K. L. Arora, the learned counsel for the state, maintains that under Article 154 of the Constitution, the executive power of the State which; vests in the Governor, can be exercised by him either directly or through officer subordinate to him in accordance with the constitution. The rules of Business f th Punjab Government contained in Part I (Exhibit C. W. 1/1) have been framed by the governor not only under Clause (2) and (3) of Article 166 of the Constitution but also under Article 154(1) f th Constitution. In this connection, counsel has laid stress on the word 'In exercise of .... And all other powers enabling him in this behalf' occurring in the preamble of the Rules in Part I (Exhibit C. W. 1/1 ). Counsel has then referred to Rule 2 of the Rules of Business, Exhibit C. W. 1/1 , which says 'that the business of the Government shall be transacted in the Departments specified in the schedule annexed'. The Governor has, consequently not only in exercise of his powers under Article 166, Clauses (1) and (2), but also under Article 154, directed by these Rules that the business of the Government shall be transacted in the Departments through such and such Secretary. According to Mr. Arora , the word 'though' occurring in this Rule is significant . In this Annexed schedule, referred to in Rule 2, there is item no. 5, which according to the learned counsel, delegates all the powers to the Home Secretary with regard to the administration of Criminal justice, excluding some 18 matters enumerated therein. The accord of sanction or consent under Section 196-A , Criminal Procedure Code, says Mr. Arora, is a matter which the Home secretary , by Virtue of item No. 5 relating to the administration f criminal justice , was empowered to deal an decide.
17. Mr. Asrora has also referred to Rule 9, Clause 1, in Part II ( Exhibit C. W. 1/2) which authorises the Secretary to the Government to sign every order or instrument of the state and further says 'such signature shall be deemed to be the proper authentication of such order or instrument'. Mr. Arora contends that in view of item no. 5 in the Schedule annexed to the Rules in C. W. 1/1 and Rule 9 in C. W. 1/2 , the Home Secretary had duly passed the order or accorded the consent. Exhibit P. 303 , on behalf of the Government, This order is expressed in the name of the Governor as is required by Clause (1) of Article 166, and Rule 8 of the Rules of Business Exhibit C. W. 1/2 it has been duly authenticated in accordance with the Rules made by the Governor. Consequently , it cannot be called in question in this Court on the ground that it was not made by the Governor.
18. According to Mr. Arora the validity of the order , Exhibit P. 303 is in substance being challenged on that ground that this order though duly authenticated in accordance with the Rules and expressed in the name of the Governor. The defendants cannot, in view of Clause (2) of Article 166 of the Constitution , go behind that order and question its validity.
19. Mr. Arora has controverted Mr. Chari's argument that the Governor or the Minister could not validity delegate the authority to grant consent under Section 196-A, Criminal Procedure Code. The Constitution itself, says Mr. Arora, envisages such delegation of powers. The language of Section 196-A, Criminal Procedure Code , also shows that the Government could delegate its function of according the consent even to a district Magistrate. The Home Secretary was a far higher officer of th Government. Mr. Arora has cautioned the Court not to follow th decision which proceed on an interpretation of Section 198-B, Criminal Procedure Code. Those Provisions , says Mr. Arora, constitute a complete code in themselves, and different considerations apply to accord of sanction under Section 198-B, Criminal Procedure Code, Mr. Arora has cited Dattatraya Moreshwar v. State of Bombay , AIR 1952 S. C. 181, and has endeavored to distinguish the numerous rulings cited by Mr. H. L. Sibal.
20. Section 196-A Criminal Procedure Code reads as follows:
'196-A No Court shall take cognizance of the offence of criminal conspiracy publishable under Section 120B of the Indian Penal Code,
(1) In a case where the object of th conspiracy is to commit either an illegal act other than an offence , or a legal act by illegal means, or an offence to which the provisions of Section 196 apply, unless upon complaint made by order or under authority from th State Government or some officer empowered by the State in this behalf, or
(2) in a case where the object of th conspiracy is to commit any non cognizable offence , or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings;
Provided that where the Criminal conspiracy is one to which the provisions of sub-sections (4) of Section 195 apply no such consent shall be necessary.'
21. Thus, the sole question for determination is, whether Exhibit P. 303 is a valid consent to the initiation of the proceedings of the appellants and the other accused persons for the offence of criminal conspiracy when the object of that conspiracy was to commit offences under Section 465, 466 and 471, Indian Penal Code.
22. The 'Government' spoken of in Section 196-A Criminal Procedure Code, means the Governor acting on the advice of the Counsel of Ministers, or on the advice of the individual Minister to whom the Department concerned has been allocated under the Rules of Business framed by the governor . In th ultimate analysis it may also mean a Secretary to the Government to whom the transaction of that business has been delegated by the Minister concerned by a standing order or otherwise in accordance with the Rules of Business framed by the Governor under Clauses(2) and (3) of Article 166 of the Constitution. If an order according the consent for th purposes of sub-Section (2) of Section 196-A Criminal Procedure Code, is passed by th Council of Ministers, authorise Minister, or the authorised Secretary , and is thereafter expressed in the name of the Governor as required by Clause (1) of Article 166 and authenticated in accordance with the rules f Business then in view of the provisions of Clause (2) of Article 166, this order cannot be challenged on the ground that it was not passed or made by the Governor.
23. There is also authority for the proposition that if the order is not expressed in th name of the Governor, and is not duly authenticated in the manner prescribed, evidence can be led to show that the order was, in fact, passed or made by the Governor. In the instant case, the consent in writing was expressed to have been made in the name of th Governor. It was further signed by the Home Secretary, who, under the Rules of Business, was competent to authenticate it. The immunity envisaged in Clause (2) of Article 166 of the Constitution , therefore, was available to this order. That is to say, its validity cannot be challenged on the ground that this order was not made by the Governor . But since two pages of this order, in which the names of certain accused were enumerated, were found missing, the trial Court examined Shri R. K. Sondhi, Superintendent of the Home Secretary, C . W. 1. And Shri A. N. Kashyap, then Home Secretary as C./ W. 2, who had signed the order in question. The competency of Mr. Kashyap, the then Home Secretary to accord this consent, Exhibit P. 303, was questioned at the earliest opportunity by; the defence , Mr. A. N. Kashyap, C. W. 2, conceded that the case was not put up before the Minister, because according to precedent, the Home Secretary was entitled to grant sanction in such cases without reference to the Minister. Mr. Sondhi, C. W. 1. Stated that the Home Secretary could, in his discretion decide whether the matter should be placed before the Minister in charge or not.
24. From the plethora of case law on th subject, the rule that can be deducted is that though an order. Which is expressed in th name of th Governor and is authenticated in accordance with the Rules of Business, cannot b assailed on the ground mentioned in Clause (2) of Article 166 of th Constitution, Viz., that it was not made by th Governor, yet it can be challenged on any other ground for instance, that the person who made that order on behalf of the Governor had no authority under the Rules of Business or any other law to make that order or take the decision on behalf of th Governor. The reason is that the Governor under or constitution is a constitutional head. Only in few matters he has to act directly in his discretion. In all other matters, he has to act on the advice of the Council of Ministers or individual Minister concerned in accordance with the Rules. It is true that under Article 154 of the Constitution, the executive power of the State vests in the Governor but that executive power is to be exercised, (excepting a few cases, where he has to act directly in his discretion) through officers subordinate to him. It is well settle that the word 'officer' in Article 154(1) of the constitution includes the Ministers. Thus, the ultimate analysis, this executive power, including the matter of granting sanctions, rests with the Council of Ministers or the Minister-in-charge of the Department concerned.
25. Now let me advert to the Rules of Business framed by the Governor under Article 166 of the Constitution, Clause (3) of this Article says:
'(3) The Governor shall make rules for the more convenient transaction of the business of the Government f the state, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Government is by or under this Constitution required to act in his discretion.'
26. This clause speaks of two distinct subject in relation to business of the Government. Firstly, it speaks of the allocation of such business among Minster's. Secondly, it speaks of the transactions of such business, while in some States , such as West Bengal, consolidated rules relating both to the transaction and th allocation of such business among Ministers have been framed , in the State of Punjab the Rules relating to the allocation of th business among Ministers have been framed separately from the Rules relating to the transaction of such business, The Rules, Exhibit C. W. 1/1 (Part I) are captioned, 'business of the Punjab Government (Allocation) Rules 1953' The Rules in Exhibit C. W. 1/2 (Part II) are captioned, 'The rules of Business of the Government of Punjab, 1953'. Though the Rules in Exhibit C. W. 1/1 an in Exhibit C. W. 1/2 ar not be read in isolation from each other, yet their division into two parts under somewhat different heading would help in Court in their construction. The Rules in Exhibit C. W. 1/1 (Part I) are 4 in number . Rule 1 only gives the name of the Rules . Rule 2 says:
'2. The business of the Government shall be transacted in the Departments specified in this Schedule annexed , and shall be classified and distributed between those Departments as laid down therein.'
Rule 3 provides:
'3. The governor shall , on th advice of the Chief Minister, allot among th Ministers th business of th Government by assigning one or more Departments to the charge of a Minister: Provided that nothing in this Rule shall prevent the assigning of one Department to the Charge of mor than one Minister.'
27. In the instant case, it is not disputed that under Rule 3, the Governor had assigned the Department of Home Affairs to the charge of the Home Minister.
Rule 4 lays down:
'4 Each Department of the Secretariat shall consist of the Secretary to the Government , who shall be th official head of the Department, and of such other officers an servants subordinate to him as the State Government may determine:
(a) more than one Department may be placed in charge of the same Secretary,
(b) the work of a Department may be divided between two or more Secretaries.'
28. Then there is the Schedule spoken of in Rule 3. It classifies the Departments, such as 'General Administration', 'law and Order', 'Administration of Justice' etc. Then, under these classified headings is written 'through Chief Secretary', 'through Home Secretary' , etc. We are concerned only with the Department, 'Administration of justice'. Under that caption it is written 'through Home Secretary'. The thereafter are enumerated several items of business, which will be transacted in the Department of Administration of Justice through the Home Secretary item No. 5 reads as follows:
'5 Administrated of criminal justice including constitution, powers, maintenance and organisation of Courts of criminal jurisdiction within the State, excluding:
(1) Appeals against acquittals and Governments applications for enhancement of sentences.
(2) Conduct of particular cases in criminal courts. (3) ** ** **(4) ** ** **(5) ** ** **(6) ** ** ** (7) Cases of conditional grants of pardon.
(8) ** ** ** (9) All cases under sections 401 and 402, Criminal Procedure Code, except cases regarding the grant of remission of sentences to prisoners by the Ministers -in-charge, Jails on his visit to Jails.
(10) All cases relating to grant of pardons, reprieves, respites or remission of punishment, r to suspend, remit or commute the sentence of any person except cases regarding the grant f remission of sentences to prisoners by the Minster-in-charge, Jails on his visit to Jails. (11) ..... ** ** **(12) ** ** **(13) ** ** **(14) ** ** **(15) ** ** **(16) ** ** **(17) ** ** **(18) ** ** **
29. It cannot be disputed that giving of sanction or consent for prosecution under the Criminal Procedure Code would fall well-nigh within the ambit of 'Administration of criminal justice', an expression which his of very wide amplitude. But the real question is, whether the enumeration of this item no. 5 under the caption 'Administration of Justice' (through the Home Secretary) amounts to delegation of the power to transact that business without reference to th Minister-in-charge of that Department. In my opinion, the answer to this question must be in the negative ,. The word 'through' immediately preceding 'the Home Secretary' in the heading under which item No. 5 is enumerated , an also elsewhere in the headings, indicates that while classifying the various departments these Rules simply prescribe a channel through which the business would be carried on by the Ministers. The words 'Administration of Justice through Home Secretary' only mean that the Minister, who has been assigned by the Governor under ule 3, the Department of the Administration of Justice, shall be responsible for transacting inter alia the business enumerated as item no. 5 , viz., 'Administration of Criminal Justice, through the Home Secretary'. It cannot , by any stretch of imagination, be construed as delegating the business of item no. 5 to the Home Secretary empowering him to take all administrative decisions relating thereto without reference to the Minister-in-charge. Such a construction will be repugnant to our democratic polity; it will make the Ministers mere figure heads and the Secretaries, their masters, The Rules in Exhibit C. W. 1/1 read alolng with the orders passed by the Governor u;nder Rule 3 will help to determine as to which minister of the Government is empowered under the Rules to do the business of the administration of criminal justice, as stated in aforesaid item no. 5 of the Schedule.
30. So far as the delegated powers of ther Secretaries and other officers are concerned , we have to advert to the Rules in Exhibit C. W. 1/2 which are further sub-divided under different headings, Rule 4 in Part I, captioned 'Disposal of Business', says:
'4. The council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether sucvh orders are authorised by an individual Minister on a matter pertaining to his portfolio or as the result of discussion at a meeting of the Council, or howsoever otherwise, '
31. Mr. Arora has laid a good deal of stress on the words 'or howsoever otherwise' occuring in the above Rule. This expression , according to the learned counsel, indicates that if a Secretary to Government issues an order in the name of the Governor even without reference to the individual Minister concerned or the council, the Council shall be collectively responsible for the same. Thus this Rule impliedly authorises the Secretaries to the Government to carry on the business of te executive Government as classified and enumerated in the Schedule in Exhibit C. W. 1/1 , excepting where under a standing order of the Minister or otherwise, he is required to obtain the decision of the Minister.
32. The contention of the learned counsel appears to be devoid of force. Firstly, the stress in these Rules is on the words 'executive orders issued in accordance with these Rules' and the expression 'or howsoever otherwise' is to be read as relating to those orders which are issued in accordance with the Rules . In any case, Rule 4 enjoins only the collective responsibility on the Council of Ministers. It will not ipso facto validate orders issued by the Secretaries, in breach of these Rules, in the name of the Governor. Secondly Rule 4 is not to be read independently of the other Rules in this Part. Rule 6 (Part I, Exhibit C. W. 1/2) provides:
'6. Without prejudice to the provisions of R. 4, the Minister-in-charge of a Department shall be primarily responsible for the disposal of the business pertaining to that Department.'
33. Rule 9 (1), which is also material, reads as follows:
'9 (1) Every order or instrument of the Government of the State shall be signed either by a Secretary , an Additional Secretary , a Joint Secretary, a Deputy Secretary , an under-secretary or an Assistant Secretary or such other officer as may be specially empowered by the Governor in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.'
34. The Rules in Part II in Exhibit C. W. 1/2 relate to the 'Procedure of the Council'.
35. The material Rules in Part III (Exhibit C. W. 1/2 ) are as follows.
'18 Except as otherwise proveded by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may , by means of standing orders, give such directions as he thinks fit for the disposal of cases in the Department Copies of such standing orders shall be sent to the Chief Minister and the Governor.
19. Each Minster shall by means of standing orders, arrange with the Secretary of the Department what cases or classes of cases are to be brought to his personal notice. Copies of such standing orders shall be sent to the Chief Minister and the Governor.
20. Except as otherwise provided herein, a case shall be submitted by the Secretary in the Department to which the case belongs to the Minister-in-charge.
21. Every Monday, the Administrative Secretary shall submit to the Minister -in-charge a statement showing particulars of cases disposed o f in the Department to which he considers important ,disposed of by the Administrative Secretary himself during the preceding week. A copy of each of the said statements shall be submitted to the Chief Secretary, Chief Minister and the Governor.
25. If a question arises as to the Department to which a case properly belongs to the matter shall be referred for the decision of the Chief Secretary who will, if necessary, obtain the orders of the Chief Minister.'
36. Rule 28 enumerates those classes of cases which shall be submitted to the Chief Minister before the issue of orders,
37. Rule 51 in Part IV (Exhibit C.W. 1/2) reads as follows:
'These Rules may, to such extent, as necessary, be supplemented by Instructions to be issued by the Governor on the advice of the chief Minister.'
38. From the scheme of these Rules, particularly the material Rules, quoted above, it is clear that ordinarily all business of the Government is to be disposed of in the Departments through the Secretaries, who are official, heads of those Departments. No standing orders or directions issued by the Minister-in-charge , i.e., Home Minister in this case, authorising the Home Secretary to accord sanction or consent for prosecution, have been referred to or produced by the learned counsel for the state. There is nothing in the rules which directly delegates that power to the Home Secretary. Generally speaking, the Rules themselves do not delegate the power of transacting executive business to the Securities. They however, envisage such delegation of authority by the Minister-in-charge of the Departments. Only one instance of such delegation of the power to the Chief Secretary under Rule 25 (Exhibit C. W. 1/2) has been pointed out to me, Under that Rule, if a question arises as to whether a matter concerns a particular Department, it will be referred for decision to the Chief Secretary, who will if necessary, obtain the orders of the Chief Minister.
39. The conclusion is thus inescapable that the Home Secretary could not take this policy decision and accord the necessary consent under Section 196-A (2) of the Code of Criminal Procedure on behalf of the Government without reference to the Minister-in-charge of the Department. Home Secretary's statement in the witness-box ,that he was entitled on the basis of past practice and precedent, to issue the necessary orders in question on behalf of the Government , only confirms the conclusion that there is nothing in the Rules or in any standing or other order of the Minister expressly authorising the Home Secretary to dispose of such matters without reference to the Minister-in-charge. There is ample authority for the proposition that in such a situation, the validity of the order, expressed and authenticated by the secretary , can be questioned on the ground that the secretary had, under the law, no authority to pass that order.
40. The leading case on the subject is AIR 1943 F. C. 75. In that case 9 persons were detained in West Bengal under Rule 26 of the Defence odf India Rules, By a judgment, Keshav Talpade v. emperor, AIR 1943 F. C. 1 pronounced on 22nd April 1943 F. C. The federal Court held Rule 26 of the Defence of India Rules to be ultra vires the Central Government , Immediately after the judgment was pronounced the 9 detenus made applications under Section 491, Criminal Procedure Code, to the High Court , praying for their release on the ground that their detention was illegal. On 28th April, 1943, the Governor-General promulgated an ordinance, whereby the rule-making power of the Central Government under the Defence of India Act was made wider so as to cover the terms of Rule 26 as it had all along stood. By another Section of the ordinance it was provided that no order theretofore made against any person under Rule 26 , Defence of India Rules, shall be deemed to be invalid or shall be called in question on th ground merely that the said Rule purported to confer powers in excess of the powers that might at the time the said Rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act 1939.
41. The validity of the ordinance was also contested, but here I am not concerned with that point. However, one of the question raised before the Federal Court was that the requirement of R. 26 of the defence of India Rules had not beencomplied with in respect jof the orders of detention. On behalf of the crown, it was urged that the orders were in proper form and the presumption set out in illustration (e) to Section 114, Evidence Act, viz, that official acts have been regularly performed, attached tothose orders. An affidavit, sworn by Mr. Port3r, Additional Home Secretary to the Bengal Government , was furnished in which it was affirmed that he considered the materials placed beore him, and in accordance with the general order of th Government, directed the issue of an order of detention. Mr. Porter was acting on the basis that thefinal order ineach case had to be passed by the Governor or the Minster, The federal Court held (by a majority ) tha everyone of these orders was bad in law as in no case did it appear that the matter was considered by the Governor at any statge, much less that at the time the order was made he was satisfied with regard to any of the matters set out in th order of detention.
42. The matter went up in appeal before the privy Council AIR 1945 PC 156. Though the privy Council reversed the judgment of th Federal Court as to whether or not Rule 26 was ultra vires the central Government,yet it upheld its decision that sub-section (2) of Section 59 of the Government of India Act, 1935, only relates to one speciric ground of challenge, namely, the order or instrument made or executed by the Governor , and that it did not debar a person from questioning the accuracy of a recitalcontained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of a condition necessary to the valid making of that order. In a normal vase, the existence of such a recital in a duly authenticated order, in the absence of any evidence as to itsaccuracy be acceptd bya Copurt as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish evena prima facie case that thereitial isnot correct. Hence the Court has jurisdiction to investigate the validity of th orders. In the result, it was held that since it did not appear that the matter was considered by the Governor at any stage, much less that at the time the order was made he wqas satisfied with regard to any of the matters with regard to the order of dtention the inaction of the Home Minister on the later submission of the fuller material to him could not cure the invalidity of the order.
43. It may be noted that Section 59 of the Government of India Act,. 1935, corresponds toe Asrticle 166 of the Constitution, while section 49 of that Act corresponds to Article 154 of the constitution . Consequetnly the rule laid down by the privy Council in AIR 1945 PC 156, still holds the field.
44. Sibnath Banerjee's case, AIR 1945 PC 156 was relied upon by the supreme Court in AIR 1961 SC 221. The facts of Rani Sonabati Kumari's case, AIR 1961 SC 221 were , that she instituted a suti on 20th November, 1950, against the State of Bihar , in the Court of the Subordinate Judge, Dumka, for a declaration that the Bihar Land Reforms, Act, 1950, was ultra vires the Bihar Legislature , and was, therefore, illegal, void, unconstitutinal, and inoperative, and that the defendant had no right to issue any notification under the said Act or to take possession or otherwise meddle or interfere with the management of her estate. She also claimed a permanent injunction restraining the defendant , its officers, servants, employees, and agents from issuing any; notification under the said Act in respect of the Plaintiff's estate and from takin possession of the said estate . The Court issued an ex parte ad interim injunction , which after hearing the defendant , was made absolute whereby th defendant was restrained from issuing any notification or takin over possession of the suit property under the said Act, and from interferring or disturbing in any manner the plaintiff's possession. The State did not prefer any appeal and the order became final. The State did not prefer any appeal and the order became final. The State of Bihar issued on May 19, 1952, a notification under Section 3(1) of th aforesaid Act declaring that the plaintiff estate had passed to and abecame vested, in the state , The plaintiff moved the Subordinate Judge, alleging that action should be taken against the defendant for contempt of Court . The subordinate Judge found that the defendant State was guilty of contempt of Court.
45. One of points for consideration before the Supreme Court was, whether the publication of the notification under Section 3 (1) of the said Act , which was treated by the Subordinate Judge to be the disobedience, had been established to be 'the act of the State' It was urged on behalf of the Court that the publication of the notification was 'an executive act-and exercise of the executive power of the State ---' and since such a power could be exercised either by the Governor directly or through some officer subordinate to him, it could not be predicated from the mere fact that the notification was purported to be made in the name of the Governor unconformity with the provisions of Article 166(1) of the constitution, that it was the Governor who was responsible for the notification and not some officer subordinate to him On the reasoning the further contention was, that unless the respondent proved that the Governor himself had authorised the issue of the notification, the State or the State Government could not be fixed with liability therefor so as to be held guilty of disobedience of the order of injunction. Ayyangar J., who delivered the judgment of the Supreme Court, observed:
'The submission of the learned coulee is correct to this extent that the process of making an order precedes and is different from the expression of it, and that while Article 166(1) merely prescribes how orders are to be made, the authentication referred to in article 166(2) indicates the manner in which a previously made order should be embodied. As observed by the Privy Council in 72 Ind App 241 : (AIR 1945 PC 156 ) with reference to the term 'executive power' in Ch. 2 of Part 3 of the Government of India Act, 1935 (Corresponding to Part VI, Ch, II of the Constitution )--- the term 'executive' is used in the border sense as including both a decision as to action and the carrying out of the decision.'
'Section 3 (1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such through the exercise of that power would be governed by the rules of business framed by the Governor under Article 166(3) of the Constitution But this does not afford any assistance to the appellant. The order of Government in the present case is expressed to be made 'in the name of the Governor' and is authenticated as prescribed by Article 166(2) m, and consequently ' the validity of the order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor.
46. It may be observed that in that case the order of the Government was not being impugned on the ground that the Additional Secretary to Government, who had signed that order of the Governor, had no authority under the Rules jof Business to pass it. In the instant case, however, the authority of the Home Secretary to pass the impugned order is being hotly contested. Their Lordships jof the Supreme Court in para 41 of the judgment made it clear that they were not laying down any rule to the effect that an order expressed in the name of the Governor and duly authenticated as prescribed in Article 166(2) could not be challenged on any ground whatever, This is what they have said in para 41 of the judgment:
'Authorities have, no doubt, laid down that the validity of the order may be questioned on grounds other than those set out in the Article, but we do not have here a case where the order of th Government is impugned on the ground that it was not passed by the proper authority. Its validity as an order of Government is not in controversy at all.'
47. The next case worthy of note is E. G. Barsay v. State of Bombay, AIR 1961 SC 1762. In Barsay's case the order granting the sanction under Section 6 (1) of the prevention of Corruption Act for prosecution of Major Barsay was signed by the Deputy Secretary to the Government of India. It was issued in the name of the Central Government and it was not expfessed in the name of the Presidentas is required by; Article 77(1) of the Constitution. It was held by the Supreme Court that the provisions of Article 77 were directory, and evidence could be led to show that it had been passed by the proper authority. Dharam Vir, an assistant in the Ministry of Home Affairs gave evidence before the Court that the papers relating to Major Barsay's case, AIR 1961 SC 1762 were submitted to the Home Ministry by the Inspector-General of Police for obtaining the necessary sanction, and that the papers were put up before the Deputy Secretary in that Ministry who gave the said sanction unde his signature. It was clearly established that the Deputy Secretary was competent to accord sanction on behalf of the president in exercise of th powers conferred on him, presumably unde th Rules framed by the president in this behalf.
48. The facts of the case before me are different here , the evidence brought on the record does not show that the Home Secretary was authorised under the Ruels of Business to accord the sanction without reference to the Minister-in-charge of the Department.
49. Mr. Sibal next referred to Tulsi Ram v. State of Uttar Pradesh , AIR 1963 SC 666. In that case, the charge against the appellants was of criminal conspiracy under Section 120B read with Sections 467, 468, 471 and 420, Indian Penal Code. One of the points raised on behalf of th appellants before the Supreme Court was, that no sanction as required by Section 196-A of the Criminal Procedure Code was on the record of the case, and, therefore, the entire proceedings were void ab initio. There was, however, on record a letter from the under Secretary to the State Government in its Home Department, addressed to the District Magistrate , informing that the Governor had been pleased to grant sanction for prosecution of th appellants. It was argued that this communication could not be treated either as a valid sanction or its equivalent. The suprmen Court refusing permission to raise this plea for the first time before them, observed:
'It is not his (Mr. Mulla's ) contention that there was no sanction at all but the gravamen of his complaint is that there is no proper proof of th fact that sanction was given by the authority concerned after considering all the relevant facts and by following the procedure as laid down in Article 166 of the Constitution . Had the point been raised by th appellant in the trial Court, the prosecution would have been able to lead evidence to establish that the Governor had in fact before him all the relevant material, that he considered the material , and after considering it he accorded the sanction and that sanctionwas expressed in the manner in which an act of the Governor is required to be expressed.............There would have been good deal of force in the argument of learned counselhad Ex. P. 1560 not been placed on record. Though that document is not the original order made by the Governor or even its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196-A of the Code of Criminal Procedure. The document is an official communication emanting from the Home Department and addressed to the District Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that has been made in the document was regularly performed. In our opinion, therefore, the document placed on record primafacie meets the requirements of Section 196A of the Code of Criminal procedure and, therefore, it is not now open to the appellants to contend that there was no evidence of the grant of validsanction. We, therefore, overrule the contention raised by learned counsel.'
50. In the present case, however, the objection with regard to the validity of the sanction or consent was raised in trial court at the first available opportunity. The principle discernible in Tulsi Ram's case , AIR 1963 SC 666. However, is that if the objection had been taken at the proper time, evidece could be led to show whether or not the Governor had accorded the sanction after considering all the relevant material.
51. The law on the point was recently considered by their Lordships of the Supreme Court in AIR 1967 SC 1145, In that case, the Society of Farmers and Rural Industrialists, requested the State of West Bengal to acquire, compulsorily, certain land for the establishments, of an Agricultural Colony. The state issued a notification on February 4, 1955, under Section 4 of the West Bengal Land Development and Planning Act, 1948, stating that an extent of about 28.59 acres of lands, situated in the named villages, was likely to be needed for a public purpose. The notification was published in the Calcutta Gazette on February 17, 1955. It was signed by the Assistant Secretary, Land and Revenue Department of the Government of West Bengal.
52. The respondent State then directed the Society to prepare a development scheme and submit the same to the Collector, to enable him to hear objections as per the rules framed under the Act. On or about March 21, 1955, the Society submitted a development scheme and the Collector issued notice, under Rule 5 (2) of the West Bengal Land Development and Planning Rules, 1948, inviting objections to the scheme being sanctioned. The Mills, whose land was being taken away, filed objections, which were overruled by the Collector. On February 10, 1956, the Land Planning Committee, which is the prescribed authority under the Act, recommended acceptance of the scheme, and for issue of a declaration by the Government under Section 6 of the Act. On July 21, 1956, the Government issued the declaration, which was published in the State Gazette on August 9, 1956. This declaration was signed by the Deputy Secretary, Land and Revenue Department, Government of West Bengal. On August 28, 1956, notice of the intention to take possession of the lands was issued under Rule 8 of the Rules.
53. On September 13, 1956, the Mills moved the Calcutta High Court by a writ petition under Article 226 of the Constitution. The stand taken by the Mills was that the proceedings had been initiated by Assistant Secretary of the Department, and orders issued either by him or by the Deputy Secretary of the Department, and orders issued either by him or by the Deputy Secretary and hence actions taken by them, though in the name of the State Government, were not valid inasmuch as they were not in conformity with the Act. The argument was that under the Rules of Business framed by the Governor under Article 166(3) of the Constitution, the business pertaining to the department of Land Revenue, to which those proceedings related, was to be dealt with personally by the Minister-in-charge, and proceedings to be taken under the Act. Since the orders were issued by the Assistant Secretary of the Department without reference to the Minister-in-charge, the entire proceedings were illegal and void.
54. On behalf of the State, it was urged that as the notification issued under Section 4, and the declaration made under Section 6 of the Act, had been authenticated in the manner specified in the rules made by the Governor under Article 166(2) of the Constitution, it was not open to the appellant to go behind and question the validity of either the notification or the declaration, which contained a recital that the Governor was of the opinion that the lands were needed for a public purpose.
55. The writ petition was heard by a Single Judge of that High Court who accepted the contentions of the Mills and held that the impugned order was illegal and void. The state went in appeal to the Division Bench, which also held that Article 166(2) is only to the effect that, when authentication is made in the manner mentioned therein, what is made conclusive is that the order has been made by; the Governor but, whether in making the order, the Governor has acted in accordance with the law, still remains open to adjudication. The Division Bench also held that by virtue of the power conferred under the Rules of Business issued by the Governor, it is open to a Minister by making proper standing Orders, to delegate his functions and authorise disposal of such functions to his subordinates, After considering the Rules of Business and other relevant provisions the Divisions Bench held that inasmuch as the Minister had as the Minister had admittedly not dealt with those proceedings, the notification issued subsequent to the stage of the issue of the notification under Section 4 of the Act, must be set aside as void. In view of the fact that the Division Bench held that the issue of notification under section 4 is not a matter which has to be dealt with by a Minister, and as the exercise of the functions in that regard has been delegated under the Standing Order, that notification was allowed to stand. In consequence, the learned Judges modified the order of the Single Judge.
56. The mills appealed to the Supreme Court The Supreme Court dismissed the appeal and upheld the decision of the Division Bench with these observations:
'The learned Judges are perfectly correct in their view that what th authentication makes conclusive under Article 166(2) , is , that the order has been made by the Governor. But the further question, as to whether in making the order, the Governor has acted in accordance with law, remains open for adjudication'.
57. In B. L. Cotton Mill's case AIR 1967 SC 1145 their Lord ships of the Supreme Court were concerned with the interpretation jf the Rules of Business framed by the Governor of West Bengal on August 25, 1951. Rules 4 and 5 of the West Bengal are almost identical with Rules 2 and 3 of Rules of Business of the Punjab Government (Exhibit C. W. 1/1) West Bengal Rule 19 is, excepting the proviso, in pari materia with Rule 18 of the Punjab Rules (Exhibit C. W. 1/2). West Bengal Rule 20 corresponds to R. 19 of the Punjab Rules (Exhibit C. W. 1/2). The supreme Court approved the construction placed by the Calcutta High Court on the said Rules of Business . On this Point, Vaidialingam J. observed as follows:
'We are also in agreement with the views expressed by the High Court that the Governor's personal satisfaction was not necessary in this case as, this is not an item of business , with respect to which, the Governor is, by or under the Constitution , required to do act in his creation. Although the executive government of a State is vested in the Governor, actually it is carried on by Ministers; and, in this particular case, under Rules 4 and 5 of the Rules of Business, referred to above the business of Government is to be transacted I;nthe various departments specified in the First Schedule thereof. Item 5 therein is the Department of Land Revenue and the Governor has allotted the business of that Department to a Minister. We are further in agreemetn with the views jfo the Hi;gh Court that the said Minister-in-charge, has got power to make Standing Orders regarding the disposal of cases, in his Department, under the Rules of Business issued by the Governor, on August 25, 1951, under Article 166(3) of the Constitution . In this case, there is no controversy that the Minister-in-charage of the Department of Land and Revenue has made Standing Orders on November 29, 1951, by virtue of powers given to him under Rules 19 and 20 of the Rules of Business'.
58. In the vase before me, however, no Standing or other Order, issued by the Minister-in-charge under Rules 18 and 19 of the Rules of Business , has been produced. The conclusion, therefore, is inescapable that the Minister-in-charge never authorised the Home Secretary under Rules 18 to 19 to dispose of cases relating to the grant of sanction under the Code of Criminal Procedure , for Prosecution at his own level, without prior reference to him (Minister-in-charge).
59. Dattatraya Moreshwar's case, AIR 1952 SC 181 does not advance the case of Mr. Arora The main rule laid down in that case was that the provisions of Article 166(1) of the Constitution are merely directory, and an omission to comply with those provisions does not render and executive action a nullity. If it is shown that the decision required by law to be taken by the appropriate Government was, in fact, taken by that Government, there is no breach of the procedure established by law.
60. The contention of the petitioner in that case was that the order or the executive action of the Government had not been expressed and authenticated in manner provided in Article 166. On behalf of the State , it was pointed out that there was a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minster as officer. If every executive decision has to be given a formal expression be brought to a standstill. S. R. Das J., (as he then was) accepted the contention of the Attorney General and observed:
'I agree that every executive decision need not be formally expressed and this is particularly so when one superior office directs his subordinate to act or for bear from acting in a particular way, but when the executive decision affects an outsider or is required to be a officially notified or to be communicated it should normally be expressed in the from mentioned in Article 166(1) i.e., in the name of the Governor.'
61. In Dattatraya Moreshwar's vase, AIR 1952 SC 181 it had been amply proved on the record that the decision under Section 11 (1) of the preventive Detention Act had, in fact been taken by; the appropriate Government, In the case, before me, however, the evidence that has come on the record shows that the matter never went up to the Government i.e., Minister-in-charage of the Department , or the Council of Minsiters , but the decision was taken by the Home Secretary at his own level.
62. It will not be out of place to refer here to some decisions of this Court in the matter of sanctions accorded under Sections 198-B of the Code of Criminal Procedure.
63. In Criminal appeal No. 89 of 1963, Master Girdhari Lal v. State , decided by Capoor J. on 30th March 1964 (Punj) the allegation was that Master Girdhari Lal had published a news item in the issue of 'Naya Bharat' dated 27th June, 1961, which was defamatory of Deputy Superintendent of Police , Tarn Taran (Shri Ajaipal Singh) . In the other case, the allegation was that Master Girdharai Lal had published in the issue of his paper, dated 25th January, 1962, defamatory matter in respect of the conduct of Ghanshyam Das, Head Clerk for the office of the settlement Officer, Gurdaspur. The conduct impugned in each case was pertaining to the discharge of the official duties of the respective officers. The objection raised on behalf of Master Girdhari Lal was, that the sanction purporting to have been accorded under S. 198-B of the code of Criminal Procedure , was not given by the State Government . The sanction orders were issued in each of the two cases under the signature of Shri J. D. Khanna, Deputy Secretary to Government Punjab, Home Department, and those orders recited that the Governor of the Punjab was satisfied that the respective issues of the 'Naya Bharat' contained matter defamatory to Shri Ajaipal Singh in one case, and Ghanshyam Das in another. It was pointed out that on the evidence of the prosecution itself, it was clear that the matter was never considered by the governor of Punjab or th Punjab Government, but only by the Deputy Secretary, Home. It stood established from the evidence of Shri B. K. Gurtu, supdt, of the Punjab Civil Secretariat, that neither of the cases went up beyond the level of the Deputy Secretary Home, and in actual faact, it was he who applied his mind to the cases and sanctioned prosecution. Thus, the question for determination before the learned Judge was;
'Whether in these circumstances it can be held that the sanction for the prosecution in each case was that of the State Government'.
64. Without inviting the attentionof the learned Judge to any Rule of Business, it was urged on behalf of the State that it should be presumed that the Deputy Secretary Home was, under the Rules of Business framed by the Punjab Government, authorised to discharage the functions of the State Government under clause (c) of the sub-section (3) of S. 198-B of the Code Criminal Procedure Repelling the contention , Capoor J. observed;
'It does not appear that ny such delegation of the powers under section 198-B (3) (c) would be legal as that provision does not speak of any further power to delegate.'
The learned Judge further observed:
'Tyhough in the case before me it is clause (c) of sub-section (3) of S. 198-B which is applicable , the same principle should apply and it must be held that the sanction which is given after examination at the Deputy Secretary's level only and not at Government's level, was not a sanction of the Government. In 1961 Punj LR 238 the learned Chief Justice while discussing the difference in te forms of sanction required in sub-section(3) (b) and (c) observed...............
The idea appears to be that if a Minister is defamed, it should behalf to a responsible civil servant to decide whether the special procedure should be sanctioned, and if a civil servant is defamed, it is left to the Government, that is, the Governor Acting on the advice of his council of Ministers, to decide whether the case is fit one for sanction'.
65. In the result , the learned Judge accepted the contention of Master Girdhari Lal and held that the sanction order having been issued by the Deputy Secretary at his own level was bad in law.
66. In 1968 Cur LJ 18: (1968 Cri LJ 709 (P. & Hyna). A Division fo this Court considered a converse case.
67. Master Girdhari Lal's case, Cri App. No. 89 of 1963 D/- 30-3-1964 (Punj) was cited before the learned trial Judge also. The learned trial Judge declained to follow the rule in Master Guirdhari Lal's case, Cri App. No. 89 of 1963 D/- 30-3-1964 (Punj) with these observations:
'In the interpretation of section 190-B (198-B0, Criminal Procedure Code, absolutely different considerations have prevailed and the interpretation of S. 196-A, Criminal Procedure Copde, would involve absolutely different considerations......
In Criminal Appeal No. 388 of 1963, D/- 14-8-1964 (Punj) the question of validity of sanction was mainly decided by relying on Criminal Appeal No. 89 of 1963. It akppears to have been represented to the Hon'ble Judge that the State felt satisfied with the decision in Criminal Appeal No. 89 of 1963 D/- 30-3-1964 (punj) and had not filed any appeal against the order of acquidttal. The P. P. informs me that an appeal has actually been filed and is pending in the Supreme Court. Be that as it may, I find that the two decisions of Single Bench in Criminal Appeals Nos. 89 of 388 of 1963 involved the interpretation of a different considerations had prevailed. The Rules of Business framed under clauses (2) and (3) of Article 166 of the Constitution of India and the precedent and the old standing pracatice had not been proved in those two cases'.
68. I have been informed by the learned counsel on both sides that no appeal against the decisions of Capoor J. in Master Girdhari Lal, case Cri App No. 89 of 1963 D/- 30-3-1964 (Punj) is pending in the supreme Court or elsewhere.
69. It may, however, be noted that the provisions of Section 198-B , Criminal Procedure Code, constitute a complete code inthemselves. The ratio of the said cases which proceed on an interpretation of Section 198-B, is that the Government cannot delegate its power of granting sanction under that section to any Secretary to the Government. To thaat extent, the ratio of Master Girdhari Lal's case, Cri App. No. 89 of 1963 D/- 30-3-1964 (Punj) cannot apply to the accord of sanction or consent under Section 196-A (2) which expressly provides that this power can be delegated by the Government even to the Dustrict Magistrate. A fortiori Government could delegate this power to the Home Secretary who is a far senior officer of the Government. But in the instant case, as observed already, it has not been shown that this power had been delegated by the Government to the Home Secretary. The Government under our democratic polity, in the ultimate analysis, for the purpose of according sanction, means the Council of Ministers , or the Minister under whose charge the Department of Criminal Justice is placed by the Governor. The Home Secretary has not been authorised by the Minister in accordance with the rules to accord the sanction or consent. To that extent, the ratio of Master Girdhari Lal's case, Cri App. No. 89 of 1963 D/- 30-3-1964 (Punj) is a sure guide.
70. In short, the principle that emerges from the above discussion is, that though an order giving consent under Section 196-A (2) of the Code of Criminal Procedure, which is made and expressed in strict compliance with clauses (1) and (2) of Article 166 of the Constitution, cannot be impugned on the ground that it was not made by the Governor, its validity can be challenged on the ground that it was not made by the Governor in accordance with law. In other words, evidence can be led to show that the Government servant , who purportedly expressed it in the name of the Governor , did not have, under the law or the Rules of Business, the necessary authority, to make it. In view of the Rules of Business, Exhibits C./ W. 1/1 and in absence of any Standing Order issued under Rules 18 and 19 of the Rules of Business, Exhibit C. W. 1/2 by the Minister-in-charge (Home Minister) delegating the disposal of this business to the Home Secretary, the latter could not, without reference to the Home Minister or the Council of Ministers, dispose of the matter and accord the necessary sanction at his own level. Wrong precedents could not be invoked to override the letter of the Rules of Business. I have, therefore , no hesitation, in holding that there was no valid sanction or consent in writing by the Government under section 196-A (2) of the Code of Criminal Procedure with regard to the charge of criminal conspiracy under section 120B , Indian Penal Code. On this short ground, the appeals preferred by Amrit Lal Kapila, Harbhajan Singh Sanghera and Joseph Verghese appellants must succeed. There was no separate substantive charge under Section 466 , Indian Penal Code, against these three appellants. I would therefore, allow their appeals set aside their convictions, and acquit them.
71. With regard to Manmohan Singh Johal, however, in addition to the charge of criminal conspiracy under Section 120B, Indian Penal Code, he was charged for the substantive offence under Section 466 , Indian Penal Code, In his case the question that remains to be considerations is, whether his conviction for an offence under Section 466, Indian Penal Code, can be sustained by the evidence on record.
72. Mr. H. L. Sibal contends that Mr. Johal was not specifically charged for forging the auxiliary travel documents, such as visa Applications, International Vaccination Certificates, etc., but was simply charged for forging the passports. The learned Counsel maintains that a perusal of the judgment of the trial court would show that Joesph Verghese appellant has been acquitted of the charg of forging the passports, but convicted for forging auxiliary travel documents, i.e., for a distinct offence with which he was never specifically charged. It is maintained that for this reason only, the conviction of Mr. Johal for an offence under Section 466, Indian Penal Code, cannot be sustained.
In order to appreciate this argument, it is necessary to quote in extenso the charges as framed against Mr. Johal, which read as follows:
'I V. K. Agnihotri, Special magistrate, Punjab at Ambala Cantt, hereby charge you, Manmohan Singh Johal alias Mohan Singh alias Mohni , son of Shiv Singh Johal Prop. M/S Ranjit Travel Agency, G. T. Road, Jullundur, as follows:
First.----That you along with the co-accused in this case during the period 1956 to October , 1959, in the Districts of Jullunder and Hosiarpur and other places, were a party to a criminal conspiracy having for its objects the doing or causing or be done illegal acts and acts which are not illegal by illegal means, to wit, to obtain fraudulently passports from the persons at various places in the Punjab and after obtaining the same to forge them by removing photographs of the original passports holders thereof and by replacing or substituting them with the photographs of intending passengers who never held any passports but desired to go to United Kingdom and by making false endorsements therein with regard to countries for which they were never issued or with regard to the period of validity of the same or with regard to addition of children to suit the intending passengers and to forge other travel documents and to use such forged passports and other travel documents as genuine knowing or having reason to believe that they were forged, and to enable you or and intending passengers to travel to United Kingdom on those passports and other travel documents either as adults or as children under assumed names or assumed parentage or under both and that you have thereby committed an offence punishable under section 120B r/w Sections 465. 466, 471 I. P. C. and within the cognizance of Court of Session , Ambala.
Secondly-That you, during the aforesaid period, at one of the aforesaid places, in pursuance of the aforesaid conspiracy, forged entries in documents, to wit passports Exhibits P. 12 to P. 16 and P. 18 to P/ 24 purporting to be made by public servants in their official capacity and that you thereby committed an offence publishable under section 466 I. P. C. and within the cognizance of the Court of Session , Ambala.
And I hereby direct that you be tried by the said Court on the said charges.
Sd/- V.K. Agnihotri ,
Special Magistrate Punjab, at Ambala Cantt.
The 15th August, 1961. ** ** **'.
73. It is correct that in clause Secondly of the charge-sheet, there is no specific mention of the travel documents other than the passports , but CI. First of the charge-sheet does specially say that the object of the conspiracy was to forge passports and other travel documents. The international Vaccination Certificates , visa applications etc., were undoubtedly auxiliary or subsidiary documents, and the charge sheet read as a whole would leave no doubt in the mind of the accused that he was being tried, inter alia , for forging entries not only in the passports but also in the connected travel documents.
74. All the circumstances appearing in the evidence with regard to the forging of entries in the passports, Exhibits P. 12, P. 13, P. 19, P. 19/c, P. 19/H, P. 21, P. 22 , P. 23, and P. 24 . Visa applications, Exhibit P. 36/1 and P. 36/2 International Vaccination Certificates, Exhibits P. 215 to P. 219, P. 224 to P. 226, and 262 to P. 273. Baggage Declaration Forms, Exhibits P. W. 17/9 , P. W. 17/10 , and P. W. 17/12, and Embarkation forms, Exhibits P. 42 P. 42-A , P. 44, P. 44-A , P. 45, P. 45 -A, P. 34, P. 34-A , P. 35, P. 35-A , were duly put to Manmohan Singh Johal during his examination under Section 342 , Criminal Procedure Code, before the trial Court in Questions. Nos. 10, 11, 13, 14, 17, 22, 24, 26, 27, 34, 35, 37, 38, 45, 49, 50, 59, 62, 64, 73, 81, 82, 83, 94, 96, 102, 105, 113, 116, 123, 126, 127, 135, 138, 139, 140, 147, 156, etc. Thus, no prejudice was caused to the accused owing to the non-mention of other travel documents, namely, Visa Applications International Vaccination Certificates Embarkation Forms, Baggage Declaration Forms, eitc., in the second head of th charge-sheet, In any case, it was a curable irregularity , which could not affect the legality of the conviction of Mr. Johal under section 466, Indian Penal Code, for forging the aforesaid travel documents.
75. Furthermore, I do not agree with the learned counsel for the appellant that the trial Judge has acquitted Manmohan Singh Johal of the charge of forging some entries in the passports . In para 14 (iii) at page 92 of the judgment, the learned trial Judge as observed:
'According to the G. E. Q. D. (Government Examiner of questioned Documents) these blanks had been filed in by Johal (A. 37) while according to the expert, examined by the defence, these, writings are in the hand of Krishan Kumar Kesar (A. 37/D/ W. 12). Even if it may appear that the Government Expert has not been able to properly identify these sketchy writings for the reason that he did not have before him the sample writing of the actual writer , it would be no ground for disbelieving his opinion forged documents when his opinion is supported by a number of other circumstances reliably proved in the present case. It does not seem to be very material whether Johal sullied his own hands or employed and hired some others to do the dirty job for him as long as it is proved that he was arranging for the completion of these forged travel documents'.
76. It is on the basis of the above-quoted sentences, occurring in the judgment, that the defence counsel builds his argument viz., that the trial Judge has acquitted Mr. Johal of the charge of forging entries in the passports . I do not think, it is permissible to take out isolated sentences; sthe judgment has to be construed as a whole. These sentences have to be read along with the preceding and the concluding sentences of this sub-param the learned trial Judge has observed.
'The handwriting experts examined by the prosecution and the defence may also suggest that in the forgeries of the endorsements in the passports and in the forgeries in the vaccination certificates there was a sort of specialization or division of labour in the sense that endorsements about the renewals and extensions to other countries were made by oen person, th signatures underneath these endorsements were forged by another person and the insertions of the names of the childres in the blanks on pages 1 and 3 etc. of the passports were made by a third person. The same set of rubber stamps and seals were used in forging and fabricating these endorsements in the passports and th vaccination certificates and the childish spelling mistakes in some of these rubber stamps which recur in all the passports Leave no doubt in our mind that the same set of persons and the same set of seals and stamps were used for these forgeries'.
77. The last part of this sub-para reads as follows:
'When Johal or his manager were away from their ordinary place of business and they could not get hold of others to complete such documents they had to rely on their own hands and the evidence of the Government Expert with regard to those forgeries is not belied by the production of any other person who was alleged to have completed those documents by filling in the blanks, which are ascribed by the prosecution to Johal and Amrit Lal accused. Besides the expert evidence there is unimpeachable evidence that these documents were being dealt with and completed by these two accused.'
78. Thus construed, it is quite clear that the learned trial Judge found that Johal had forged not only some entries in passports, but also in auxiliary documents, namely, Visa Applications, International Vaccination Certificates, etc. I would, therefore, hold, even at the cost of repetition, that the omission to frame a distinct charge under Section 466, Indian Penal Code, with regard to the forging of the entries in Visa Applications, International Vaccination Certificates, Baggage declaration Formas, and Embarkation forms, which were only auxiliaries to the passports, was a mere irregularity, cured by Sections 535 and 537, if not covered by Section 237 of the Code of Criminal Procedure, particularly when no prejudice is shown to have been caused to the accused, who clearly understood the nature of the offence for which he was being tried and was afforded a full and fair opportunity of defending himself. The contention, thus, stands over-ruled.
79-87. The trial Judge has convicted Mr. Johal under Section 466, Indian Penal Code, for forging passports and other connected travel documents on the basis of the following evidence and inferences:
(After narrating the evidence his Lordship reviewed the evidence, during the course of which his Lordship observed).
88. It must be remembered that the examination under Section 342 , Criminal Procedure Code, is designed , (a) to secure communication to the accused to the full extent what is alleged against him in the prosecution evidence and (b) to elicit explanation or defence of the accused he wishes to put forward in respect thereof. If examination of th accused substantially achieves that aim so that the accused is made fully aware as to what case he has to meet, the proceedings cannot beheld to be vitiated, simply because all possible questions with regard to the circumstances in evidence, natural probabilities, and reasonable inferences arising from the evidence have not been exhausted and put to the accused while recording his statement under Section 342, Criminal Procedure Code.
89. Though Dev P. W. was cross-examined at length by the defence counsel in the first instance, he was recalled for further cross-examination at the instance of the accused. Johal accused, therefore, fully knew what evidence Dev had given against him. No prejudice has been caused to the accused owing to the failure of the trial Court to put a separate question with regard to Dev's evidence.
90. The prosecution had established that a Bank Draft , Exhibit P. W. 50/19, was drawn on th Punjab National Bank Ltd., Jullunder city, on the 28th September 1959, with which Bank Johal had his accounts This draft was endorsed by Sudarshan Singh, Accused No. 3 (who traveled along with Balhar Singh, Accused No. 3 under the assumed name on the forged passport, Exhibit P. 13) in favour of one Lachhman Singh who further endorsed it in favour of Manmohan Singh Johal. The last named (Mr. Johal) wrote on the draft:
'Please credit it to my current account No. 6918/4.
Sd/. M. S. Johal
91. The money was thus credited to Mr. Johal account. This circumstances of th receipt of Rs. 4500/- was duly put to Johal in Question No. 177. Thus , in spite of the infirmities, Dev's evidence , having been corroborated by other circumstantial evidence, was rightly relied upon by the learned trial Judge.
92. Now I take up the evidence of the Document Expert. The evidence of Mr. N. Dass Guptha, P. W. 120, examined by the prosecution, with regard to Manmohan Singh Johal (A. 37) is at page 406 of the file for the lower Court . S. 8/1 to S. 8/32 and V/ 1 to V. 5 Were the specimen or admitted writings of Mr. Johal, which were used by the Expert witness for comparison with the questioned writings marked as G series on passports, Exhibits P. 12 to P. 24, marked as K series ( K.1 to K. 36) In the correspondence and the hotel stay registered, etc., marked as M series (M.1 to M. 150) on the International Vaccination Certificates, marked as N series (N. 1 to N. 7) on the Visa Applications , marked as O series (O. 1 to O. 8) on the Embarkation Forms, and marked as P series (P. 1 to P. 12) on the Baggage Declaration Forms. In his opinion, the person who wrote the specimen writings S. 8/1 to S. 8/32 and V. 1 to V. 5 also wrote the aforesaid questioned writings on the passports, I.V. Cs, Visa Applications, Embarkation Forms, Baggage Declaration Forms, etc., With regard to the questioned writings marked as G. 15, G. 43, G. 45/1, G. 45/2, G. 51, G. 74, G. 83 G. 81, G. 96, G. 111 and M. 9, the Expert opined that these also were probably written by the same person (Mr. Johal), who wrote the specimen writings, He gave detailed reasons in support of his opinion.
93. The main criticism of the learned counsel fot the appellant against the testimony of Mr. N. Dass Guptha is, that his opinion has been contradicted by the Expert examined by the defence, and that where the charge against the accused is one of forging a writing, as a rule it is imprudent to convict him solely on the basis of the expert testimony.
94. I have no quarrel with the proposition. It is merely a rule fo caution and not an absolute rule of law. There is nothing in law to prevent the Court from the recording a conviction on exprt evidence alone. The reason si that the identification of hand writings is an imperfect science. There the margin of error is great. Experts often give dogmatic opinions unsupported by reasons. The value of the expert evidence , however, varies with the circumstances of each case and the reasons given by him in support of his opinion, It s value is to be judged with the same yardstick with which the evidence of any other witness is appraised. It is to be seen how far it fits in with the surrounding circumstances and the natural probabilities of the case, If in a given case the evidence of the Expert is materially corroborated and confirmed by the other evidence, there is nothing in law to debar the Court from recording a conviction of he accused on the basis of such expert testimony.
95-97. In the instant case, the evidence of Mr. N. Dass Guptha finds material corroboration from the circumstantial evidence brought on the record.
(His Lordship examined the evidence of this witness and continued).
98. After going through the evidence of the Experts , I am clearly of the view that the evidence of Mr. A. S. Kapur, A. 37/D, W. 17. (handwriting expert examined by the defence---Ed.) is not reliable while that of Mr. N. Dass Guptha, P. W. 120, is creditworthy. Firstly , Mr. Kapur did not examine all the original writings which are in question. He only saw photographs of some of them supplied to him by the accused. Even the examination of these originals made by him in Court was only for about one hour Further more, the surrounding circumstances and the other overwhelming evidence brought on record by the prosecution clothe the opinion of Mr. N. Dass Guptha with a high degree of probability. Particularly, the set habit of the writer , as revealed by the specimen as well as the questioned entries in the passports in committing th same spelling mistakes, such as writing the word 'Belgium' as 'Belguim' , etc., goes to show that at least those entries on the passports were written by Mr. Johal.
99. The evidence on this charge against Mr. Johal is mainly circumstantial. It is well settled that in cases dependent on circumstantial evidence, in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person, an incapable of explanation upon any other reasonable hypotheses, save that of the accused's guilt. In the instant case, the whole chain of circumstances established against Mr. Johal, coupled with the testimony of the handwriting expert, Mr. N. Dass Guptha, P. W. 120 Piara Singh, P. W. 89, and Dev, P. W. 103, leads only to one reasonable inference, viz., that it was Johal accused himself and none else, who forged at least the entries G. 13 and G. 15 in the passport, Exhibit P. 13 and G. 39, G. 41 and G. 43 in the passport, Exhibit P. 16. To put it in another form, so far as the aforesaid entries in Exhibits P. 13 and P. 16 are concerned, the opinion of the Document Expert stands confirmed by the stark circumstance that these two passports when they came in to the hands of Mr. Johal, did not contain any false entries, and when they were passed by him further to the passenger-accused at the time of embarkation , they had among others, the false entries G. 13, G. 15 G. 39 , G. 41 and G. 43 in them.
100-107 (His Lordship reviewed the rest of the evidence and continued).
108. If a person deliberately prepares such Embarkation Forms in contravention of the statutory requirements, merely by copying out false entries from the forged passports, then he would be 'making a false document' as defined in Section 464, Indian Penal Code, it being presumed that his act would amount to 'forgery' as defined in Section 463, Indian Penal Code, it being presumed that the intention of the accused in copying out the entries was fraudulent. The offence committed by Mr. Johal, in respect of the Embarkation Forms, therefore, will fall under S. 465, if not under Section 466, Indian Penal Code.
109. (His Lordship reviewed the evidence as regards International Vaccination certificate and concluded).
110. In view of my finding that it has been established by the prosecution beyond all manner of doubt that the entries G. 13 and G. 15 in the passport, Exhibit P. 13 and G. 39, G. 41 and G. 43 in the passport, Exhibit P. 16, were forged by Mr. Johal appellant himself, I maintain his conviction under S. 466, Indian Penal Code but reduce his sentence to 4 years' rigorous imprisonment and a fine of Rs. 5,000/- and, in default of payment of fine, to suffer one year's further rigorous imprisonment. His conviction on the charge under Section 120B read with Section 471, Indian Penal Code, is , however, set aside for want of a valid sanction for prosecution.
111. Conviction under S. 466, I. P. C. maintained but sentence reduced and conviction under S. 120B/471, I. P. C.., set aside.