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Tempton Jahangir Frazer Vs. Ranchhoddas Khimji Asher and State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appln. No. 262 of 1963
Judge
Reported inAIR1966Guj166; 1966CriLJ749; (1966)GLR25
ActsConstitution of India - Articles 133, 133(1), 134 and 134(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 4, 403, 417, 417(1), 417(3) and 417(5); Indian Penal Code (IPC), 1860 - Sections 120B, 176, 193, 197, 405, 406, 409, 420, 468 and 477A; Indian Trusts Act - Sections 19; Indian Succession Act - Sections 211 and 317; Code of Civil Procedure (CPC), 1908 - Sections 109 and 151; Government of India Act, 1935 - Sections 205(1), 270(1) and 271; Bihar Sales Tax Act - Sections 21(3); Arms Act - Sections 17
AppellantTempton Jahangir Frazer
RespondentRanchhoddas Khimji Asher and State of Gujarat
Appellant Advocate P.D. Desai, Adv.
Respondent Advocate L.C. Bhatt, Adv. and; B.R. Sompura, Asst. Govt. Pleader
DispositionAppeal allowed
Cases ReferredGovernment of West Bengal v. Anwar Ali Sarkar
Excerpt:
criminal - question of law - section 417 (3) of criminal procedure code, 1898 and article 134 (1) of constitution of india - whether where high court declined to grant leave to appeal against acquittal to private complainant under section 417 (3) can certificate be granted under article 134 (1) - order passed by the high court in matter of granting leave to appeal against order of acquittal under section 417 (3) is final order in criminal proceeding - held, when high court declined to grant appeal against acquittal to private complainant under section 417 (3) certificate can be granted under article 134 (1) (c). - - the complainant entrusted the entire management and administration of the estate to the original accused on his representation that he would called the income of the.....1. this matter arises out of an application by the petitioner to this court praying for a leave to file an appeal under section 417(3) of the code of criminal procedure against an order of acquittal passed by unjudicial magistrate, first class at broach acquitting opponent no. 1, original accused of an offence under section 400. i. p. c. in criminal case no. 1100 of 1959. that application for leave was dismissed by this court on july 17, 1963 whereupon the petitioner prayed for a certificate for leave to appeal to the supreme court of india under article 134(1)(c) of the constitution of india. there was a division of opinion between the two learned judges constituting the bench which heard the application under article 134(1)(c) and hence the matter has been placed for disposal under.....
Judgment:

1. This matter arises out of an application by the petitioner to this Court praying for a leave to file an appeal under Section 417(3) of the Code of Criminal Procedure against an order of acquittal passed by Unjudicial Magistrate, First Class at Broach acquitting opponent No. 1, original accused of an offence under Section 400. I. P. C. in Criminal Case No. 1100 of 1959. That application for leave was dismissed by this Court on July 17, 1963 whereupon the petitioner prayed for a certificate for leave to appeal to the Supreme Court of India under Article 134(1)(c) of the Constitution of India. There was a division of opinion between the two learned Judges constituting the Bench which heard the application under Article 134(1)(c) and hence the matter has been placed for disposal under Clause 36 of the Letters Patent.

2. The petitioner in this application is the original complainant who had filed a complaint against opponent No. 1 in the Court of the Judicial Magistrate, First Class at Broach alleging that an offence punishable under Section 406. I. P C. was committed by the first opponent The fads of the complaint as they appear from the judgment of the learned First Class Magistrate are that there was an estate known as 'Amjad Bang Estate' situated in the compound of the Vasant Mill on the Mahatma Gandhi Road at Broach One Khan Bahadur Mervanji Frazer was the original owner of the estate who died intestate leaving a widow, three sons and one daughter. Letters of Administration for the estate of the deceased were granted to the widow who look possession of all the properly, carried on its administration and distributed the income of the properly amongst the sharers. Thereafter another administrator of the estate was appointed and he continued till he retired from his service as the Nazir of the District Court at Surat. Thereafter one Gulabrai was appointed as the administrator of the estate and he continued till 1950 He used to collect rent of the properly of the deceased and distributed the same amongst the sharers according to the orders of the Court. It appears that one of the sons of the deceased mortgaged his share with the father of the original accused and subsequently assigned his share to him. The original accused then applied for removal of Gulabrai from his position as an administrator and the District Court by its order dated October 16, 1950 appointed the complainant and the original accused as joint administrators of the estate. The complainant entrusted the entire management and administration of the estate to the original accused on his representation that he would called the income of the estate and distribute the same amongst the sharers and would manage the property well. The accused collected rent and income of the estate and realized large amounts of mono by selling sonic super-structures and did not distribute the income and receipts amongst the sharers hut converted the same to his own use and thus misappropriated the same and has thereby committed criminal breach of trust. According to the complaint, the original accused was bound to keep a true account of the income of the said properly and submit the same before the District Court at Surat. The original accused had disposed of the property of the estate the details whereof have been shown in para 6(a) (b) and (e) of the complaint and had realized an amount of Rs. 31,501 and had misappropriated that amount The original accused had according to the complaint, not shown that amount in the account produced by him and had thus committed an offence of criminal breach of trust

3. The defence of the accused was that a false complaint was lodged against him because of certain serious differences of opinion between him and a solicitor practising al Bombay. According to the accused, he had never given false accounts and had kept the sharers in the estate informed of all the important matters relating to the estate Meetings of the sharers were also held for deliberations and resolutions were passed The accused denied having misappropriated am amount or having com-milled any offence The learned Magistrate who heard the complaint, acquitted the accused holding that the term 'properly' used in Sections 405 and 406 referred only to movable property, that immovable properly could not be brought within the purview of Sections 405 and 406, I. P C. that the order passed by the District Judge. Surat could not he read as creating a trust; that the entrustment of immovable property cannot mean and include entrustment of its income; that a prosecution under Section 406, I. P C was not contemplated by Section 317 of the Indian Succession Act and that the complainant had failed to prove entrustment of property as required by Section 406, I. P C. or the liability of the accused under Section 317 of the Indian Succession Act. According to the learned Magistrate, in view of the aforesaid conclusion, the rest of the contentions, viz. whether it was proved that the accused had misappropriated the amount or converted to his own use or used it or disposed of the same, and whether the accused had done so dishonestly and whether he had done so, in violation of any direction of law prescribing the mode in which the least was to be discharged and whether the accused wilfully suffered any person to misappropriate the amount dishonestly, were unnecessary to be decided. However, the learned Magistrate held that the accused had taken care to manage the estate as a prudent man would do under the circumstances. It appears however from the judgment, as we shall see later on, that the learned Magistrate principally considered the fact while arriving at the judgment, that the complainant had failed to prove entrustment of the property within the meaning of and as required by Sections 405 and 406. I. P C. On this finding of the learned Magistrate, the complainant applied to the High Court under Section 417(3) of the Code of Criminal Procedure for leave to file an appeal against the order of acquittal passed by the learned Magistrate. This application under Section 417(3) was registered as Criminal Application No 149 of 1963 and was summarily rejected on July 17, 1963 Against this order rejecting the aforesaid application, the present application for leave to appeal to the Supreme Court was filed by the complainant and this is how the matter came up before the two learned Judges of the High Court between whom a division of opinion has occurred on the question as to whether in a case where the High Court has declined to grant leave to appeal against an acquittal to a private complainant under Section 417(3) of the Criminal Procedure Code, a certificate can be granted under Article 134(1)(c) of the Constitution of India and whether, if so, on the facts of the case, it was a fit case for granting a certificate under that Article.

4. Article 134(1) of the Constitution of India read in the context of the questions arising in the present matter requires that before a certificate could be issued, the following requirements must be satisfied:

(1) There must be an order.

(2) It must be a final order.

(3) The order must have been passed in a criminal proceeding.

(4) The case must be a fit one for appeal to the Supreme Court

5. There can be no doubt about the fact that a refusal to grant special leave to a complainant under Section 417(3) of the Criminal Procedure Code is an order passed by the High Court. As stated in Halsbury's Laws of England, third edition, Volume 22 at page 740, the term 'order' in its wider sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the Court. The decision in a matter arising under Section 417(3) of the Cri. P. C. is a decision which prevents the complainant from challenging the order of acquittal of the accused and all the rights of the complainant relating to the com plaint filed by him are undoubtedly concluded. The making of an application under Section 417(3) appears to be a stage introduced by the Legislature in a proceeding after a trial which has resulted in the acquittal of the accused Mr. Shall appearing on behalf of opponent No 1 has also not seriously disputed the fact that the refusal to grant special leave under S. 417(3) of the Criminal Procedure Code was an order within the meaning of Article 134(1) of the Constitution of India. What has been seriously disputed by Mr. Bhatt is that it is not a final order.

6. In the same volume of Halsbury's Laws of England. we find the following passage as regards the terms 'final judgment or order':

'In general a judgment or order which determines the principal matter in question is termed 'final' A final judgment has been defined as 'a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established' or as 'a judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour either of the plaintiff or of the defendant' An order made in chambers by consent, ordering that the action be dismissed and the plaintiffs pay to the defendants their taxed costs, is final, and an order dismissing an originating summons is a final order. A final order is none the less final by reason that it is subject to appeal, and a judgment may be final although it directs inquiries, or deals with costs only, or is made on an interlocutory application or reserves liberty to apply.'

In the case of V. M. Abdul Rahman v. D. K. Cassim and Sons , a person brought a suit for damages, but became in solvent during the pendency of the suit. The suit was dismissed for the failure of Official Assignee to furnish security The appellate Court however held that the claim being one for damages did not vest in the Official Assignee and remanded the case for trial on merits. On these facts it was held that although the order of remand decided an important and even a vital issue in the case, it left the suit alive and provided for its trial in the ordinary way and that therefore no appeal lay against it under Section 109(a) of the Civil Procedure Code. In the course of judgment, it was observed at page 60 that:

'Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order 'finally disposes of the rights of the parties.' and he held that the order then under appeal did not finally dispose of those rights, but left them' to be determined by the Courts in the ordinary way.' It should be noted that the appellate Court in India was of opinion that the order it had made went to the root of the suit, namely, the jurisdiction of the Court to entertain it.' and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient the finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it tinder Section 109(a) of the Code '

The test of finality therefore, as can be seen from the aforesaid decision, is whether the order finally disposes of the rights of the parties and whether after the order, the suit is a live suit in which the rights have still to be determined. In S. Kuppuswami Rao v. The King , proceedings were launched before a Magistrate under Sections 120B. 420, 468, 197, 409 and 477A. I. P C. and an objection was raised in those proceedings that the consent of His Excellency the Governor was necessary under Section 270(1), Government of India Act, which was not obtained. This contention was upheld by the Magistrate who was trying the case in respect of charges under Sections 409, 420, 197 and 477A. The second objection that was taken was that the proceedings were against Section 197, Criminal Procedure Code lead with Section 271. Government of India Act, 1935 as the accused was appointed to perform the duties of a motor licensing officer and was a Government servant whose services could not be dispensed with by the District Collector. The matter again came up before the Magistrate who saw no ground for reconsidering the order already passed by him. A criminal revision application was thereupon filed which was dismissed by the High Court and the result of that order was that the proceedings would have to go on before the Magistrate. The High Court granted a certificate under Section 205(1) of the Government of India Act, 1935 and if became necessary to consider the question whether the appeal was really from a judgment, decree or final order of the High Court. At page 4 of the judgment, it was observed that:

'Our attention was called to Clause 39, Letters Patent of the High Courts of Calcutta, Bombay and Madras which provides for appeals to His Majesty-in-Council from 'any final judgment, decree or order' and 'urged that in the absence of the qualifying word, 'judgment' In Section 205(1), Constitution Act, must be held to include a preliminary or interlocutory judgment and that the order now under appeal fell under that category. We are unable to accede to this view. In our opinion, the term 'judgment' itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case it cannot cover a preliminary or interlocutory order '

At page 5 it was further observed that:

'It was argued on behalf of the appellant that the words judgment or final order should be given a wider interpretation so as to enable the Court to entertain appeals like the present in criminal mailers in any event. We are unable to accept this contention. The words are used in Section 205(1). Constitution Act, and impart jurisdiction to the Federal Court to entertain appeals both in civil and criminal matters. As the same words give jurisdiction to the Court in both classes of cases, it will be improper to construe them in a certain wav when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals from criminal proceedings. The words judgment and final order in connection with civil appeals, have received a definite judicial interpretation. In connection with civil appeals to this Court therefore that interpretation has to be accepted. If so, the same 'interpretation has to be accepted in case of appeals from criminal proceedings brought to this Court under Section 205(1), Constitution Act. In our opinion, this argument of the appellant is against all well-recognised canons of construe Hon'

As regards the question whether in that criminal case the order was a final order, it was observed that:

'The question then is whether in the pre-sent criminal case the order is a 'judgment, decree or final order of the High Court'? II Is clearly not a decree. It is also not a judgment, as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the Court finally. In the words of Sir George Lowndes to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. It is therefore clear that the order made on the criminal revision application by the Madras High Court is not a final order of judgment within the meaning of Section 205(1), Constitution Act, Indeed, if 'judgment' were to mean or include an interlocutory order, the words 'final order' in Section 205(1) Government of India Act, 1935, will be superfluous.'

In the judgment of the Federal Court referred to above, the case of Salaman v. Warner. (1891) 1 QB 734 was referred to. The relevant passage in the judgment of Lord Esher is at page 735:

'If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purpose of these rules it is final. On the other hand, if their decision, if given in one way will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on then I think it is not final, but interlocutory.'

This was a case in which the defendants raised by their defence the point of law that the statement of claim did not disclose any cause of action. A Judge at Chambers ordered that the point should be set down for argument and disposed of before the trial. It accordingly came on before the Divisional Court, who after argument ordered that the action should be dismissed with costs. Another decision that was referred to in the course of the arguments was in the case of Premchand Satramdas v. Stale of Bihar, 1950 SCR 799: (AIR 1951 SC 141 where the decision was whether an order passed dismissing an application under Section 21(5) of the Bihar Sales Tax Act to direct the Board of Revenue, Bihar to state a case and refer it to the High Court, was or was not a final order. It was held by the Supreme Court that such an order was an advisory order and did not bind or affect the rights of the parties. At page 804 (of SCR): (at pp. 15-16 of AIR) it was observed that:

'In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exercise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under Section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue.'

Another case that was referred to was the case of Jethanand and Sons v. State of Uttar Pradesh : [1961]3SCR754 . In that case the High Court remanded the case to the Civil Judge with a direction that he should allow the appellants and if need be, the respondent to amend their pleadings and frame issues that would arise out of the pleadings and allow the parties an opportunity to lead evidence and then to decide the case on such evidence. On these facts it was observed at page 796 of the judgment that:

'In our view, the order remanding the cases under Section 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Article 134 of the Constitution, By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for re-trial is not a final order within the meaning of Article 133(1)(c). An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133.'

7. In the light of the aforesaid principle. let us examine the provisions of Section 417 of the Criminal Procedure Code and the nature of the order that could he passed under Sub-clause 3 of Section 417. Section 417 is included in Chapter XXI of the Code of Criminal Procedure which relates to appeals. That chapter provides for appeals against a judgment or order of a Criminal Court in certain cases. In the case of an acquittal, Section 417(1) provides that:

'Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.'

Sub-section (8) of Section 417 provides that:

'If such an order of acquittal is passed only case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.'

Sub-section (5) of Section 417 further provides that:

'If, in any case, the application under Sub-section (8) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall under Sub-section (1).'

It would thus appear on a reading of Section 417 that the State Government can file an appeal against an acquittal without obtaining any leave from the High Court for filing such appeal; whereas if such an appeal has to be filed in any case instituted upon complaint, a special leave to appeal from the order of acquittal has to be obtained before the complainant can present such an appeal to the High Court. It would thus appear that on an order summarily dismissing the application for special leave under Section 417(3) filed by the complainant the right of the complainant relating to his complaint would be finally determined and the order of acquittal could never be challenged in any Court unless the appeal was taken to the Supreme Court. But that would not be the only effect of such an order rejecting the application for special leave under Section 417(3). As a result of the order dismissing the application for special leave under Section 417(3), not only the complainant himself would be debarred from challenging the order of acquittal, but the Stale Government also would be debarred from challenging the order of acquittal. This would be as a result of the provisions contained in subsection (5) of Section 417 of the Criminal Procedure Code. On account of the provisions contained in Section 403, Cri. Procedure Code, the accused would not be liable to be tried again for the same offence or on the same facts for any other offence. It is thus abundantly clear that the order passed by the High Court summarily rejecting the application for special leave under Section 417(3) filed by the complainant finally binds the Complainant as well as the State Government and therefore affects the rights of the parties. The order passed under Section 417(3) becomes final and conclusive not only in the proceedings under that section but in respect of the subject-matter of the complaint and no fresh proceedings in that matter can lie after the application under Section 417(3) was disposed of. Therefore the disposal of the application under Section 417(8) by Raju J. disposes of finally the subject-matter of the complaint and therefore the rights of the parties relating thereto and the complaint and all the incidental proceedings do not survive after the order which puts the case to an end. The order therefore that has been passed dismissing the application for special leave under Section 417(3) amounts to a final order within the meaning of Article 134(1) of the Constitution of India

8. The nest question that would now arise for consideration is whether the proceedings taken under Section 417(3) of the Criminal Procedure Code are criminal proceedings and whether an order passed therein could be considered as an order made in a criminal proceeding. The word 'preceding' does not appear to have been defined in the Criminal Procedure Code. Sub-clause (1)(m) of Section 4 defines a 'Judicial Proceeding' as including any proceeding in the course of which evidence is or may be legally taken on oath. In Shorter Oxford English Dictionary at page 1590, one of the definitions of a 'proceeding' is as under:

'The instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law: any step taken in a cause by either party '

It has not been disputed by Mr. Bhatt that any action taken under Section 417(3) would amount 10 a proceeding, but what has been disputed by Mr. Bhatt is that such a proceeding is not a criminal proceeding within the meaning of Article 114(1). In the case of Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government. 1943 AC 147, the House of Lords was dealing with a question regarding the interpretation of the words 'criminal cause or matter and in the speech by Lord Chancellor Viscount, it was observed that:

'If the matter is one, the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so. the matter is criminal.'

In his speech at page 162 of the report. Lord Wright has pointed out that:

'The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English Court, is an order in a criminal cause of matter, even though the order taken by its self, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter.'

At page 164 of the report it has been observed by Lord Porter that:

'This does not mean that thee matter, to be criminal, must be criminal throughout It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g. the recovery of a poor rate is not of itself a criminal matter, but its enforcement by Magistrates by warrant of distress is, and, if a case be stated by them as (o their right so to enforce it and that case is determined by the High Court, no appeal lies.

On the same page it has been observed that:

'The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the Magistrate in jeopardy a criminal charge.

In the ease of A. W. Meads v. Emperor , the appellant was ordered to be tried by a Field General Court-martial. He was in due course so tried and was convicted in respect of, the two offences charged under Section 17. Arms Act, and was sentenced. The appellant thereupon filed a petition in the High Court under Section 491, Criminal P. C. and the important point raised on the hearing of that petition before the High Court was that the act complained of was committed by the appellant in the execution or purported execution of his duty, a servant of the Crown, and that accordingly under Section 270(1). Government of India Act, 1935, the Court-martial proceedings could not legally and properly be instituted against him without the previous consent of the Governor-General in his discretion. The question therefore raised was whether the Court-martial proceedings in question were criminal proceedings within the meaning of Section 270(1), Government of India Act, 1935. In the petition under Section 491 of the Code of Criminal Procedure, the High Court decided that the Court-martial proceedings in question were not criminal proceedings within the meaning of Section 270(1) and accordingly the petition was dismissed. But a certificate under Section 205(1). Constitution Act was granted in respect of the question raised in regard to Section 270(1) and from that order the appellant preferred an appeal before the federal Court. The appeal was dismissed by the Federal Court and the relevant observations occur at page 23 of the judgment as under:'Whilst, as indicated above, it may be pro-per in certain context to include Court-martial proceedings in the phrase 'criminal proceedings', in our opinion the ordinary person who uses the phrase 'civil or criminal proceedings' usually intends only to indicate the ordinary civil and criminal proceedings which can be taken in accordance with the ordinary law of the land, and does not have in mind the special and peculiar code of Military Law applicable only to the limited classes subject to it and the military offences created by that Code In other words in our judgment the ordinary primary meaning of the phrase 'civil or criminal proceedings' indicates only the civil or criminal proceedings capable of being instituted under the ordinary law of the land, and should not he held to include proceedings under military law unless there he a context which so indicates.'

If the application made by the complainant for special leave to file an appeal under Section 417(3) was granted, it would undoubtedly expose the accused to a jeopardy and would have led to proceedings in which, if found guilty, he would have been convicted and sentenced. The application under Section 417(3) would involve a consideration of some charge of crime and of some offence which was preferred before a Court empowered to impose punishment for the offence.

9. Mr. Bhatt appearing on behalf of opponent No. 1 had urged that an order passed in a proceeding under Section 417(3) was not a final order and that no leave could be granted to appeal to the Supreme Court. Mr. Bhatt referred to a decision of the Supreme Court in Criminal Appeal No. 21 of 19(50 (SC). That was a case in which an order of conviction was set aside in appeal by the High Court and the prosecutor in respect of the offence was the State and not a private complainant.

10. The aforesaid discussion leads to the conclusion that the proceeding before the High Court in Criminal Application No. 149 of 1903 was a criminal proceeding and the order passed therein a final order. The question, that would now arise for consideration is whether the present case is a fit case to appeal to the Supreme Court. Mr. Bhatt's argument was that this was not a fit case because there was no substantial question of law that arose in the case as the learned Magistrate had decided the case on its facts Reference was made to the case of State Government, Madhya Pradesh v. Ramkrishna Ganpat Rao Limsey : AIR1954SC20 which has been referred to in a subsequent case of the Supreme Court in the case of State of Punjab v. Shadi Lal : AIR1960SC397 the relevant observations are:

'A preliminary objection was taken on behalf of the respondent that the certificate could not be granted in view of what was observed by this Court in the case of : AIR1954SC20 . It was observed by this Court:

'As above stated, this appeal is before us by special leave. Article 134 of the Constitution permits an appeal to this Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. If does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words there is no provision in the Constitution corresponding to Section 417, Criminal P. C., and such an order is final, subject, however, to the overriding powers vested in this Court by Article 136 of the Constitution' 'In support of this objection reliance was also placed on the case of State of Orissa v. Minaketan : AIR1953Ori160 , and on the case of Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Anwar Ali Sarkar : AIR1956Cal316 . The decision in the latter case is based on the observations of thiJethanand and Sons v. State of Uttar Pradesh : [1961]3SCR754 State of Punjab v. Shadi Lal : AIR1960SC397 Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Anwar Ali Sarkar : AIR1956Cal316 . The ds Court in Ramkrishna Ganpat Rao Limsey's case : AIR1954SC20 . The decision of the High Court of Orissa in the case cited sets out the principles upon which that Court would grant a certificate. So far as the observation of this Court in the case of : AIR1954SC20 is concerned it is to he observed that this Court was not considering Clause (c) of Article 134(1) of the Constitution The observation made in that case was with reference to Clause, (a) of Article 134(1) of the Constitution apparently with a view to showing that in an appeal in special leave by the State against a judgment of acquittal the Stale could not claim as of right to be heard on questions of fact. The decision of this Court did not purport to stale that a certificate could not be granted under Clause (c) of Article 134(1) in a case where a High Court affirmed an acquittal and yet was of the opinion that a substantial question of law was involved, particularly where the law declared by the Supreme Court was in conflict with the decision of the High Court on that very question In our opinion, the preliminary objection raised is without foundation and must be rejected. It may be pointed out that even if the High Court could not have granted a certificate this Court always has the power to grant special leave in an appropriate case There can be no question in the present case that this Court would have granted special leave even if the High Court had. refused to grant a certificate or was not in a position to grant one from that point of view the preliminary objection raised could not stand in the way of this Court hearing the present appeal if we granted special leave II is however, unncessary to say anything further, since, in our opinion. the preliminary objection fails on the ground that the decision of this Court on which reliance is being placed is to authority for the proposition that the High Court could not have granted the certificate in the circumstances of the present case. In our opinion, the High Court had the power to grant the certificate under Article 134(1)(c) of the Constitution and in the circumstances of the present ease it rightly granted such a certificate.'

The question therefore, whether the case would he a fit one for appeal to the Supreme Court would require to be decided with reference to the facts and the substantial questions of law-arising in a particular case. If we look to Para 5 of the judgment of the learned Magistrate in Criminal Case No. 1100 of 1959. reference is made to the points that arose for determination in the case The points for determination mentioned in that paragraph are as under:--

'(1) Does complainant prove that accused was entrusted with properly or with dominion over property.

2. If so, is it proved that accused misappropriated it or converted it to his own use, or used it or disposed of the same.

3. If so, is it proved that he did so dishonestly.

4. If so, is it proved that he did so in viola-lion of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract, express or implied, which be has made touching the discharge of such trust

5. Is it proved that accused wilfully suffered any person to do as in 2, 3, 4, Part I or II?

6. What order? '

Para 6 of the judgment gives the findings on the aforesaid points for determination as under: '1. No.

1. No.

2. Does not survive.

3. Does not survive.

4. Does not survive

5. No.

6. As per order.'

The main grounds as regards point No. 1 are contained in Paragraphs 7 and 8 of the judgment which may be quoted;

'It may be noted at the outset that it is not the case of the complaint that accused was entrusted property as contemplated by Sections 405, 406 of the Indian Penal Code. The illustrations to the former section all indicate that by the term 'property' used in the said two sections movable properly is meant and that the sections do not contemplate entrustment of immovable property The definition of the offence of criminal breach of trust given in Section 405 Indian Penal Code makes use of the terms used in the offence under Section 403 1 P. C. viz. 'dishonestly misappropriates' or 'converts to his own use. These terms are used in section 403. I. P C.. with respect to moveable properly and hence ii can he safely inferred having regard to the case law given in the commentary of Sections 105, 406, I. P. Code that immovable property is excepted from the purview of the said sections. Out of the numerous authorities cited by the learned Advocate for the complainant, there is not a single which deals with the entrustment of immovable properly the misappropriation or conversion of the income of which may have been punished under Section 406 of the Indian Penal Code. Learned Advocate for the complainant has relied upon the letter Exh 43 written by the accused to the partner owners of the estate in question as the document creating entrustment but there is no act of the partner-owners of the said property having entrusted the property immovable or movable to the accused by a definite act on their part orally or in writing. If the letter Exh 43 is to be construed as a deed of entrustment, it is an entrustment by the accused unto himself and hence he is answerable for the same to himself and none else Learned Advocate for the complainant has urged that this document must be read with the application Exh 39 made by the accused for appointing him trustee or manager of the said estate, to the District Court. Surat and the order of that Court (Exh 38) appointing him and complainant, the joint administrators of the said estate. But reading these three documents together, does not advance the case of the complainant any further. The said three documents cannot be read as creating a trust in the accused at the hands of the complainant or the other partner owners of the said property within the meaning of Sections 406 or 406 Indian Penal Code. The entrustment of the immovable property of the said estate can never mean entrustment of its income because the same could not he in existence on the day of the alleged entrustment of the immovable property. There is no law or authority cited by learned advocate for the complainant in support of his case that entrustment of the immovable property includes the entrustment of its further income or profits and as such covered by the provisions of Sections 405, 406 of the Indian Penal Code.'

'8. Learned Advocate for the complainant has also argued that accused having been appointed joint administrator of the said estate, he is hound to exhibit inventory, and account us required by the provisions of Section 317 of the Indian Succession Act. But learned advocate has over-looked the fact that his client is equally under the obligation to render accounts under the said section. How could he shirk this responsibility by giving power of attorney to the accused when the District Court had appointed him a joint administrator? His act in throwing responsibility at the accused in the face of the order Exh. 38 of the District Court amounts to disregard of Court's order for which he is certainly answerable. But even assuming that moused was under an obligation to render account and do acts enumerated in Section 317 of the said Act and he fails to do so, then he is liable to prosecution for offences under Section 176 or Section 193 as the breach may be (vide Sub-section (3) (4) of Section 317 of the said Act.). A prosecution Under Section 406, I. P. C. is not contemplated by Section 317 of the said Act. In this view of the case also the present prosecution is ill-thought of and does not lie. I therefore, conclude that complainant has failed to prove entrustment of property as required by Section 406 of Indian Penal Code or liability of the accused under Section 317 of the Indian Succession Act. This point is therefore answered in the negative.'

The above passage from the judgment would also show that the learned Magistrate (bought that by the term 'properly' used in Sections 405 and 406, I. P. C. what was meant was moveable property and that the section did not contemplate entrustment of immovable properly. The learned Magistrate was of the view that immovable property was excepted from the purview of the two sections. The learned Magistrate further considered the fact whether the income or proceeds of immovable properly, if misappropriated, would be covered by thee section. As regards the question relating to the main ground on which the learned Magistrate relied, there is a conflict of decisions of different High Courts as to whether immoveable property is or is not covered within the provisions of Sections 405 and 406, I. P. C. It is possible to urge that under Section 403, I.P. C. dishonest misappropriation or conversion to one's own use of any moveable properly has been made punishable; whereas under Section 406, I. P. C. what has been provided is that whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property, commits the offence of criminal breach of trust. It is thus possible to argue that though it may not be possible to dishonestly misappropriate or convert to one's own use any immoveable property, a dishonest use or disposal is possible in respect of immoveable property. There is no decision of the Privy Council or the Supreme Court on the question whether the offence of criminal breach of trust can be committed in respect of immoveable properly. It also appears that there was an order of appointment of joint administrators and the accused was alleged to be one of the joint administrators. It also appears that it would be possible to argue that there was a power of attorney given by the complainant in favour of the accused who had thereby obtained the sole dominion over the property and that therefore he could be said either to have been entrusted the property or to have dominion over it. It was also urged by the learned advocate of the petitioner that Ex. 38 was an order of appointment of joint administrators and that the learned Magistrate had lost sight of the fast that the accused was a joint administrator. It was also urged that the properly would vest under Section 211 of the Indian Succession Act and there would be also a duty to account under Section 19 of the Indian Trusts Act. It appears that these are points of law which go to the root of the matter and that the decision in the case would depend on how these important points were decided. It would appear from the judgment of the learned Magistrate that according to him. in view of his finding on point No 1 in the negative. the rest of the points included by him in the points for determination would not survive. On rending the judgment as a whole it appears that the decision of the learned Magistrate on point No. 1 has mainly influenced the rest of his judgment. It is true that the learned Magistrate has held as regards points Nos. 2, 3 and 4 formulated by him that the accused had taken care to keep the other sharers informed about the affairs of the estate and had taken care to manage the estate as a prudent man with ordinary common sense. The discussion of the facts and evidence on these points docs not appear to be adequate and the judgment makes it clear that the decision was mainly influenced by the conclusion of the learned Magistrate on the first point that the entrustment of property as required by Section 406. I. P. C. had not been proved by the complainant. There is no adequate discussion of the evidence on record including the evidence of the complainant and the evidence relating to the fact of accounts having been asked for from the accused and the effect of the order of appointment of the original accused as a joint administrator, the fact of execution of power of attorney in his favour by the complainant, the question of accountability as an administrator and the effect of the alleged neglect to give and produce accounts relating to the disposal of the disputed property.

11. There are thus in this matter important and substantial questions of law which go to the root of the matter and affect the very foundation of the judgment of the learned Magistrate. In my opinion therefore the order passed by the High Court in the matter of granting leave to appeal against an order of acquittal under Sub-section (3) of Section 417 is a final order in a criminal proceeding and therefore where the High Court has declined to grant leave to appeal against the acquittal to a private complainant under Section 417(3), Cri. P. C., a certificate can be granted under Article 134(1)(c) of the Constitution of India. For the reasons already set out, this is a fit case under Article 134(1)(e) of the Constitution of India to certify that the case is a fit one for appeal to the Supreme Court.


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