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The State Vs. Banshilal Luhadia and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal No. 96 of 1959 and Criminal Revn. Nos. 29, 30 and 31 of 1959
Judge
Reported inAIR1962Raj250
ActsConstitution of India - Article 166; Prevention of Corruption Act, 1947 - Sections 6; Rajasthan District Boards Act, 1954 - Sections 94 and 203; Jaipur District Boards Act, 1947 - Sections 57; Indian Penal Code (IPC), 1860 - Sections 21
AppellantThe State
RespondentBanshilal Luhadia and anr.
Appellant Advocate S.C. Chatterjee, Dy. Govt. Adv.
Respondent Advocate Chandmal Lodha, Adv. for; Luhadia and; S.K. Goyal, A
DispositionAppeal dismissed
Cases ReferredSivasankaram Pillai v. Emperor
Excerpt:
- - 29, 30 and 31 of 1959 arise respectively, were dismissed without a trial and being bad for want of previous sanction which ground was raised on behalf of the accused and upheld by the learned special judge in all the four cases. 6. now, the law where the validity of a previous sanction is questioned in a case where such sanction is necessary before a court can take cognizance of it may be summed up somewhat, like this. in other words, where the two conditions laid down in article 166 arc satisfied, then an irrebuttable presumption arises that the order purporting to have been made by the governor was made by him and the same cannot be questioned. thus there is high authority for the view that the sanction does not enjoy immunity from attack on any other ground e. we pause here for.....modi, j.1. we have four criminal matters, one appeal and three revisions, all of which have been filed by the state and arise out of similar facts. the appeal arises out of the judgment dated the 25th october, 1958, of the additional sessions judge, jaipur city, jaipur, acting as special judge under the prevention of corruption act (no. 2) of 1947 (hereinafter called the act of 1947), by which banshilal luhadia and one other person sumatimal were acquitted of an offence under section 5(2) of the act of 1947 and for the abetment thereof respectively in case no. 8 of 1957 which was tried on the merits.by extremely brief orders of the same date but apparently based on the reasoning which was contained in the judgment in case no. 8, three similar complaints against banshilal luhadia in cases.....
Judgment:

Modi, J.

1. We have four criminal matters, one appeal and three revisions, all of which have been filed by the State and arise out of similar facts. The appeal arises out of the judgment dated the 25th October, 1958, of the Additional Sessions Judge, Jaipur City, Jaipur, acting as Special Judge under the Prevention of Corruption Act (No. 2) of 1947 (hereinafter called the Act of 1947), by which Banshilal Luhadia and one other person Sumatimal were acquitted of an offence under Section 5(2) of the Act of 1947 and for the abetment thereof respectively in case No. 8 of 1957 which was tried on the merits.

By extremely brief orders of the same date but apparently based on the reasoning which was contained in the judgment in case No. 8, three similar complaints against Banshilal Luhadia in cases Nos. 6 and 5 and Sumatimal in case No. 7 of 1957, out of which revisions Nos. 29, 30 and 31 of 1959 arise respectively, were dismissed without a trial and being bad for want of previous sanction which ground was raised on behalf of the accused and upheld by the learned Special Judge in all the four cases. It would thus appear that case No. 8 of 1957 was thrown out on both grounds after a full-fledged trial while the three other cases fell to be thrown out on the preliminary ground of want of valid sanction.

2. The facts out of which appeal No. 96 of 1959 arises may be stated at some length as that case was decided by the trial court on the merits. The accused Banshilal Luhadia, who is an advocate of this Court, was the Chairman of the District Board, Jaipur, at the relevant time, having been elected to that office on the 20th May, 1953, and was as such in receipt of an honorarium of Rs. 300/- p.m. Subsequently on the 26th January, 1956, he resigned from that office when he was elected as a member of the Parliament, but he still continued to be a member of the board until the 24th January, 1958, when a new board came to be sworn in and took office. After Luhadia ceased to be the Chairman of the Board, certain complaints were brought to the notice of the State Government that the accounts of the Board were in a very unsatisfactory condition. Thereupon an officer named Yadram Chaturvedi (P. W. 17) was deputed by the Government to audit the accounts of the Board and submit his report.

In this report (Ex. P-82) several irregularities were reported to have been committed by Luhadia and a case was registered against him and investigation commenced by the police, but no case appears to have been made out against the accused with respect to the matters mentioned in that report. During the investigation of that case, however, it was discovered that on the 23rd December, 1954, Luhadia had with the help of the other accused Sumatimal obtained an illegal gratification in the shape of a brokerage commission, amounting to Rs. 125/- in respect of an investment of rupees one lac which stood deposited in a fixed deposit account carrying interest at the rate of 3 1/2 per cent. per annum in the Jaipur1 branch of the Bikaner Bank and had matured on the 5th July, 1954, and had then been placed in a call deposit account for a period of three months at 2 1/2 per cent per annum.

The case in this connection as disclosed at the trial, put succinctly, was that Luhadia had manoeuvred the demand for the payment of the commission to him from the Bank authorities of the Jaipur Branch (among whom the name of V.R. Jindal P. W. 1 Assistant Manager figures primarily and prominently) with the result that they applied for and obtained permission of the competent authority at the Head Office to pay the said commission to Luhadia (vide Exs. P-6, 7 and 8 dated the 19th and 23rd August and 2nd September, 1954, respectively).

The case of the prosecution further was that the said commission was then paid by a cheque Ex. P-9 for Rs. 125/- bearing No. M.C.071089 and dated the 4th December, 1954, by the Bikaner Bank in favour of Luhadia which was first issued as an order cheque but later converted into a bearer one at the oral request of Luhadia and the same was encashed by Sumatimal, the other accused, on his (Luhadia's) behalf on the 23rd December J954, and deposited in his personal account (Ex, P-12) with the same bank on the same day. The Government was in due course moved to grant sanction for the prosecution of Luhadia and this was granted on the 13th July, 1957, and is Ex. P-114. Thereafter the accused were challaned in the court of the Special Judge on the 21st August, 1957, and eventually acquitted as stated above.

3. Both accused pleaded not guilty and denied to have committed the offences with which they were charged. The defence of Ludhadia was that the deposit of rupees one lac in question was dealt with by him in the normal course of routine and that he had neither asked for the alleged commission from the bank on this deposit nor he had received any such commission. His defence further was that he had sent a sum of Rs. 125/- in cash with Sumatimal on the 23rd December, 1954, for being deposited with his over-draft account with the Bikaner Bank and that it was this sum which had been deposited in his account and that that had nothing to do with the commission alleged to have been paid to him by cheque.

Accused Sumatimal who, it may be pointed out here, is a relation of Luhadia being his father's real sister's grandson, supported Luhadia in his aforesaid defence and admitted that he had received a sum of Rs. 125/- from Luhadia on the 23rd December, 1954, for being deposited in the latter's account with the Bikaner Bank and he had deposited the same accordingly through the pay-in-slip Ex. P-11. He also admitted that the Assistant Bank Manager of the Bikaner Bank, Jaipur Branch, P. W. 1 Jindal had given him a cheque for Rs. 125/- on the 23rd December, 1954, and that he had encashed the same and pocketed that amount himself but that money had nothing to do with the amount of Rs. 125/- that he had deposited in the account of Luhadia (Ex. 12).

Apart from this defence on the merits, a further contention was raised on behalf of Luhadia in all the four cases that the sanction obtained for his prosecution vide Ex. P-114 in case No. 8 (and similar sanctions in the other three cases) was entirely invalid and inoperative in law, and, therefore, the trial court had no jurisdiction to take cognizance of the cases against him. As we have stated above, this plea prevailed with the learned trial Judge and as case No. 8 of 1957 had meanwhile been fully tried, the determination of the question of the validity of the sanction having been deferred until the decision of the case itself, the learned Judge dismissed this case and acquitted the accused both on the plea of sanction and on the merits.

The other three cases had somehow not proceeded to trial chiefly because of the request of the prosecution itself and it appears that arguments on the plea of sanction were heard in all the four cases together on the 11th October, 195S, and as that plea prevailed with the learned Judge, he dismissed the other three cases on the preliminary ground alone.

4. Before we may address ourselves to the merits of the appeal before us, we, therefore, think it necessary to dispose of the question of the validity of the sanction which is common to all the four cases.

5. It seems that the argument before the learned Special Judge on this aspect of the case briefly put, was that although it appeared from the sanction Ex. P-114 and similar sanctions in the other three cases that all the papers relative to the sanction had been brought to the notice of the Governor, such papers had not really been placed before him, nor had any sanction been accorded by him in point of fact, and therefore the sanction was invalid and the learned Special Judge had no jurisdiction to take cognizance of these cases. The court wanted the relevant papers to be put up before it, but learned counsel for the State seems to have thought that the issue of sanction was not justiciable at all by virtue of the provisions of Article 166 of the Constitution, and he, therefore, contented himself by filing an affidavit Ex. P-127 dated the 24th September, 1958 by R. Shivpuri, a Deputy Secretary to the State Government in the Local Self Government Department.

In this affidavit it was pointed out that the order of sanction had been expressed to be made in the name of the Governor in accordance with the revisions of Article 166 of the Constitution, that the said order had been authenticated by an officer who was duly authorised in that behalf and further that the order in question was approved by the Minister in the Local Self-Government Department, who was competent in this behalf under the Rajasthan Rules of Business made by, the Governor under Clause (3) of Article 166 of the Constitution, and, significantly enough, it was also disclosed that sanction had not been obtained from the Governor himself because it was not necessary to do so under the aforesaid Rules of Business. From this affidavit, it became clear on the Government's own showing that the matter of sanction had not been placed before the Governor at all.

And so far as the Minister was concerned, fully accepting that under the Rules of Business made by the Governor, it was competent for him to accord the sanction prayed for, there was nothing to show in the affidavit that the Minister had the requisite knowledge of all the facts on the basis of which sanction was asked for or given. Nor did the prosecution lead any evidence at the trial to show that all the necessary papers had been put up before the Minister and that after going through them he had sanctioned the prosecution. It was also urged before the learned Judge and, in our opinion, rightly, that from the affidavit filed by Shri Puri, it did not appear that he had any personal knowledge of the facts of the case and that that being so he should have disclosed the source or sources of information in the affidavit so far as his statement related to the approval of the sanction by the Minister which he did not.

Under the circumstances, the learned Judgewas obviously inclined to take a very unfavourable view of the attitude adopted on behalf of theState, and he came to the conclusion that thepapers had been intentionally withheld from himand he was not prepared to hold on the materialavailable on the record that a valid sanction hadbeen granted in any of the cases before him, andon this ground he threw out all the four casesalthough he proceeded to dispose of case. No. 8of 1957 also on the merits as evidence had beenrecorded therein before the objection as to sanction came to be decided.

6. Now, the law where the validity of a previous sanction is questioned in a case where such sanction is necessary before a court can take cognizance of it may be summed up somewhat, like this. Article 166 of the Constitution does not operate as a bar to the validity of a sanction, being questioned in a court of law save on the limited ground mentioned therein. All that Article 166 (or its earlier counter-part Section 54 of the Government of India Act, 1935) properly means and connotes is that where an executive action of the Government of a State is expressed to be taken in the name of the Governor, and where an order (or other instrument) so expressed to be made is duly authenticated according to the rules of business made by the Governor, then such an order or instrument is incapable of being challenged in a court of law on the ground that it had not been made or executed by the Governor of the State.

In other words, where the two conditions laid down in Article 166 arc satisfied, then an irrebuttable presumption arises that the order purporting to have been made by the Governor was made by him and the same cannot be questioned. But the immunity is available so far as that particular ground goes and no further. Thus there is high authority for the view that the sanction does not enjoy immunity from attack on any other ground e.g., that the sanctioning authority had not applied its mind to the facts of the case before according the sanction. The burden of proof, therefore, that the sanctioning authority had applied its mind to the question before him and had all the relevant papers in that connection before it while according the sanction, lies on the prosecution and this burden must be squarely discharged by it.

We pause here for a moment to point out that the learned counsel for the State was, therefore, entirely in the wrong when he tenaciously persisted in his plea before the trial court as well as before this Court that Article 166 completely forbade an inquiry into the question of validity of the sanction in the circumstances of the present cases. It may further be pointed out in this connection that it is a mistaken notion to think that the requirement of previous sanction is just a formal or technical one; nay it goes to the very root of the jurisdiction of the court trying the case, the reason being that such sanction is a condition precedent to the institution of the prosecution. It is further well to remember that the burden which rests on the prosecution in such a case includes proof that the authority sanctioning the prosecution was competent to do so and further that it had given the sanction with reference to the facts on which the proposed prosecution was based and that it had applied its mind to the same.

Therefore, where the facts constituting the offence do not appear on the face of the order sanctioning the prosecution, or where the order omits to show that such facts were brought to the notice of the authority which actually sanctioned the prosecution, then the proper course for the prosecution to adopt is that it should prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority, and where this is not done, the sanction cannot but be held to be illegal, and the want of a valid sanction must have the effect of vitiating the entire trial and leave the court without jurisdiction to try the case. See Emperor v. Sibnath Banerjee, AIR 1943 FC 75, Emperor v. Sibnath Banerji, AIR 1945 PC 156, Gokulchand Dwarkadas v. The King, AIR 1948 PC 82, Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637 and Jaswant Singh v. State of Punjab, AIR 1958 SC 124.

7. Applying this law to the present cases, on the assumption of course that a previous sanction for the prosecution of the accused was an essential pre-condition to his prosecution, we have no hesitation in saying that the sanction in the cases before us was seriously defective. Quite obviously it did not appear from the letter of sanction that all the papers had been brought to the notice of the sanctioning authority, namely, the Minister in charge of the Local Self Government, and the Governor admittedly had nothing to do with this matter. Moreover, the affidavit filed by the Deputy Secretary Shri Sheopuri (Ex. P-127) cannot be fairly read to mean that all the facts relating to the case of the accused had been brought to the notice of the Minister concerned to enable him to decide for himself whether sanction to prosecute be accorded or not.

There is also material on the record to show that Shri Sheopuri was not the Deputy Secretary in charge of the Department when the approval of the Minister is said to have been given and therefore he could not have any personal knowledge of the matter and consequently it was incumbent upon him to have disclosed his source of information which he failed to do. We should also like to point out that this affidavit is extremely defective, as much as, it does not bear proper verification. We cannot do better in this connection then to refer to the observations of their Lordships of the Supreme Court in State of Bombay v. Purushottam Jog, AIR 1952 SC 317:

'Slipshod verifications............might well in given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge, the source of information should be clearly disclosed.'

The verification of the affidavit before their Lordships of the Supreme Court in the case cited above stated that the matters mentioned therein were true to the best of his (deponent's) information and belief', and that was held to be seriously defective. The verification in the affidavit before us stands on a much worse footing, for the deponent Shri Puri merely verified it as 'solemnly affirmed' and no more. He entirely failed to state that the material contents of the affidavit except in so far as they related to matters of law were true to his personal knowledge or otherwise. This affidavit therefore was entirely bad and we reject it altogether.

In these circumstances, the conclusion is inescapable that the prosecution failed to prove the burden of the validity of the sanction which lay squarely on it and we are not surprised, having regard to the attitude adopted by the prosecution which we have discussed above and having further regard to the fact that the validity of the sanction had been persistently challenged by the defence right from the very beginning of the prosecution that the learned Special Judge came to the conclusion to which he did namely that the sanction in the cases before us was invalid, and, therefore, inoperative and went to the root of these cases. We entirely concur in this view.

8. This discussion, however, does not conclude the controversy which has been raised in these cases; for at the very base of the aforesaid contention underlies an assumption that Luhadia was a public servant at all relevant times, that is, both at the time when he is alleged to have committed the offences with which he was charged and also when the learned Special Judge took cognizance of the cases against him, and, therefore sanction for his prosecution was imperative before he could be lawfully prosecuted. This matter assumes some importance because of the decision of the Supreme Court in S.A. Venkataraman v. The State, AIR 1958 SC 107 to the effect that before sanction under Section 6 of the Act of 1947 becomes necessary, it must not only be that the offence was committed by a person when he was a public servant but that such accused person should still be a public servant at the time the court took cognizance of the offence alleged to have been committed by him, and unless both these conditions are fulfilled, the provisions of Section 6 do not come into play at all.

9. The question which was therefore mooted before this Court was that Luhadia was not a public servant at the stage when the court took cognizance of the cases against him in 1957. We have no doubt that Luhadia was a public servant at the time he is alleged to have committed the offence in question. He was the chairman of the District Board under the Jaipur District Boards Act, 1947 (Act No. XXXIII of 1947) (hereinafter called the Jaipur Act of 1947). Section 57 of this Act reads as follows :

'Every member of the Board and every officer or servant of the Board, shall be deemed a 'public Servant' within the meaning of the Jaipur Penal Code.'

We must then refer to Section 20 of this Act which provides for the removal of a chairman or vice-chairman. This section is in these terms :

'Every Chairman and Vice-Chairman shall after an opportunity is afforded for hearing him be removable from his office by the Government for misconduct in the discharge or for neglect of or incapacity to perform his duties.'

The position is, therefore, unassailable that Luhadia was a public servant removable by the State Government in 1954 when he is alleged to have committed the offences in question. We may further point out that this state of law continued to remain in force in the integrated State of Rajasthan until the Rajasthan District Boards Act, 1954 (Act No. II of 1954) (hereinafter called the Act of 1954) came into force on the 26th January, 1955, and admittedly it is this law which holds the field ever since and which was in force at the time Luhadia was challaned in the court of the Special Judge on the 21st August, 1957.

10. The question for decision then is whether Luhadia was a public servant at the last mentioned point of time when the Special Judge took cognizance of the cases against him. It will be remembered that Luhadia was only a member of the District Board at that time, he having resigned his chairmanship of the Board on his election as a member of the Parliament. The relevant provisions of the new Act to be considered in this connection are Sections 94 and 30. These read as under:

94. 'Every officer or servant of a Board shall be deemed to be a public servant within the meaning of the Indian Penal Code and in the definition of 'Legal remuneration' in Section 161 of the Code, the word 'Government' shall, for the purpose of this section, be deemed to include a Board.'

30. '(1) The State Government may remove from a Board any member who :

(a) has absented himself from the meetings of the Board for more than three consecutive: months or three consecutive meetings, whichever is the longer period and is unable to explain such absence to the satisfaction of the Board, or

(b) has within the meaning of Section 33 knowingly acquired or continued to hold without permission in writing of the Commissioner, directly or indirectly or by a partner, any share or interest in any contract or employment with, by or on behalf of the Board, or

(c) has knowingly acted as a member in a matter other than a matter referred to in Clause (d) or Clause (e) of proviso to Section 33 in which he or a partner had, directly or indirectly a personal interest or in which he was professionally interested on behalf of a client, principal or other person, or

(d) being a legal practitioner in any suit or other proceeding acts or appears, on behalf of any other person, against the Board or against the State Government litigating in respect of nazul land entrusted to the management of the Board or acts or appears on behalf of any other person in any criminal proceeding instituted by or on behalf of the Board, or

(e) has permanently abandoned or transferred his residence from the area of the District concerned unless the member himself resigns his his seat within three months of such abandonment or transfer, or

(f) is or becomes subject to any of the disqualifications specified in Sections 13 and 23.

(2) The State Government may remove from a Board a member who in its opinion has so flagrantly abused his position as a member of the Board as to render his continuance as a member detrimental to the public interest.

(3) When the State Government proposes to take action under this Section, an opportunity of explanation shall be given to the member concerned and, when such action is taken, the reasons therefor shall be placed on record.'

The argument was that this Act contains no provision corresponding to Section 57 of the Jaipur Act of 1947 whereunder, apart from every officer or servant of the Board, a member of the Board was also deemed to be a public servant within the meaning of the Penal Code. This, it was contended, was a serious difficulty in the way of Luhadia being accepted as a public servant at the time the cognizance of the case was taken against him by the Special Judge, and if that be so, then the question of the validity of the sanction becomes entirely immaterial for no such sanction would be necessary at all. Learned counsel for the accused put forward a three-fold answer in support of his submission that we should bold Luhadia to be a public servant at the time of the cognizance of the cases against him by the Special Judge.

(1) The word 'Officer' as used in Section 94 of the Act of 1954 should be interpreted so as to include a member of the Board also within its connotation.

(2) Luhadia was a public servant under Section 57 of the Jaipur Act of 1947 and had under that Act acquired certain rights and obligations which stood vested in him until the Rajasthan Act of 1954 came into force in 1955. That being so, he could not be deprived of his rights and privileges by the new Act unless there was an express provision to that effect in the new Act. He should, therefore, be held to be entitled to the benefit of the protective provision of the 'previous sanction' even under the new Act as that Act contains no express provision to the contrary.

(3) In any case, a member of the District Board must be held to be a public servant within the meaning of Clauses 9 and 10 of Section 21 of the Indian Penal Code.

11. We now proceed to examine these contentions in the order in which we have set them out above.

12. The first contention is that the word 'officer' as used in Section 94 must be interpreted so as to include a member within its ambit. We are afraid, we cannot accept this contention. It is true that the word 'officer' has not been defined under the Act of 1954. A clue, however, to the correct meaning of this expression is furnished by the setting in which Section 94 appears in the Act. This section occurs in Chapter IV which deals with 'officers and servants' of the Board. It is remarkable that no provision in this chapter pertains to members as such, provisions with respect to whom are to be found in Chapter II of the Act. The very first section under Chapter IV, which is Section 73, prescribes or the appointment of a Secretary of the Board, and in that connection goes on to state that he shall be a

'who (sic) me salaried officer of Government not below the rank of a Tehsildar, and whose conditions of service shall be the same as those of other Government officials of equal status.'

Section 75 then lays down that

'Every Board shall, by special resolution, appoint such other officers and servants as it is required to appoint by rule.'

It will thus be seen that the provision for the appointment of a secretary has been made under the Act itself, and as respects the appointment of other officers, a provision has been made that these will be appointed by the Board by a special resolution. It hardly requires any argument that members cannot possibly fall under this class of persons. Section 81 then permits the Secretary and other officers to participate in a meeting of the Board and make an explanation in regard to a subject under discussion but they are completely prohibited from voting upon or proposing a motion at such meeting. Section 82 then enables the State Government to require a Board to appoint any of the officers or servants as required by Section 75 within a certain period, and further to make such appointments itself if the Board fails to make the same within the appointed time. Section 86 then contemplates the appointment of a health officer for the Board, and Section 87 similarly envisages the appointment of an engineer for the Board.

13. From the review which we have made above, as respects the use of the word 'officer', in the various provisions occurring in this Chapter, we have no hesitation in holding that the word 'Officer' as used in Section 94 cannot rightly be interpreted so as to include a member of the Board.

14. This brings us to the second ground raised by the defence on this branch of the case. The contention is that as Luhadia was doubtless a public servant when he is alleged to have committed the several offences in the cases before us, by virtue of the provisions of the Jaipur Act of 1947, and he was removable from his office by the Government under Section 20 of that Act and thus he had vested in him an immunity from prosecution without previous sanction under that Act and therefore it should be held that he was entitled to the same immunity under the Act of 1954 because there was no express provision depriving existing members of such an immunity in the new Act. The argument is somewhat attractive but does not appear to us to be sound.

The law must be taken to be well settled on this point after Venkataraman's case, AIR 1958 SC 107 (supra). Their Lordships of the Supreme Court in that case have laid down that a person must not only be a public servant at the time he is alleged to have committed an offence but he must also continue to be a public servant at the time cognizance of the offence is taken against him before he can claim the benefit of Section 6 of the Act of 1947. The correct position in law, therefore, seems to us to be that such protection enures only so far as the accused remains a public servant but not after he has ceased to be so. It seems to us that if the proposition contended for on behalf of the accused were correct, the decision in Venkataraman's case, AIR 1958 SC 107 (supra) would conceivably have been different from what it was, and sanction for the prosecution of the accused in that case would have been held to be imperative even though he was not a public servant at the time of his prosecution on the ground that he enjoyed an immunity from prosecution when he was alleged to have committed the offence and he had not been deprived of it by any express provision of law to the contrary.

Again, the defence claims an immunity from prosecution without previous sanction under the provisions of Section 6 of the Act of 1947 and we think that it is by the terms of that section that this question properly falls to be adjudged. Now it has been held by the highest court in our country that an indispensable requirement for the applicability of that section is that the accused must continue to be a public servant at the time cognizance of the case against him is taken by the court. It follows, as a necessary corollary from this that if he ceases to be a public servant at this crucial point of time, he cannot be heard to say that he enjoys any immunity from prosecution without sanction. This ground, therefore, also fails and we hereby overrule it.

15. This brings us to the third and the last ground raised by the defence on this branch of the case, viz., as to whether a member of the District Board can be held to be a public servant within the meaning of Section 21 of the Penal Code. The contention was that the holder of such an office as that of a member of the District Board would be covered by the 10th clause of Section 21. This submission, to our mind, is not without force. The tenth clause of Section 21 reads as follows:

'Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district'.

It must then be noted that an illustration is appended by the legislature at the end of this section, which obviously relates to this clause, and says that 'a municipal commissioner is a public servant'. We may point out, before proceeding further, that the word 'commissioner' in this illustration has been used in the sense of a municipal member or councillor and not in the sense of an officer in the employment of a municipality who is sometimes designated By that name. See Suganchand v. Naraindas, AIR 1932 Sind 177.

Learned counsel for the accused contended that the basis underlying the illustration is that the power and duties of a local body like a municipal Board (or a District Board) are in the eye of the law powers and duties of the members thereof and therefore the law regards them as public servants irrespective of the consideration whether the particular statute governing such bodies invests the members thereof with the status of a public servant or not, though it is accepted that usually deeming provision to that effect is made in the statute itself. Speaking, with all respect, for our part, we are not quite sure of the correctness of this approach for municipal bodies (and so also district boards) are under the relevant laws always declared to be statutory corporations having perpetual succession and a common seal and therefore they possess a legal status or personality which as a matter of principle is entirely distinct from that of the totality of the members composing them. Therefore, the power and duties of a municipal board (or a district board) cannot, in our opinion, be equated as being those of the individual members composing them.

16. Be that as it may, it is a well established rule of the interpretation of statutes that an illustration appended to a section should be accepted so far as that can be done as being of great relevence and value in construing the same and the illustration can be rejected as repugnant to the section only as the last resort of construction. Reference may be made in support of this view to the observations of Lord Shaw in the Privy Council case of Mahomed Syedol Ariffin v. Yeoh Ooi Gark, (1916) 2 AC 575: (AIR 1916 PC 242):

'it is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text.........And it would require a very special case to warrant their rejection on the ground of their assumed repugnency to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired'.

Such being the interpretative value and usefulness of an illustration in the construction of a statutory provision to which it happens to be appended, we are fortunately relieved from the onerous task of pursuing our line of reasoning adverted to above because our attention has been drawn to Section 203 of the Act of 1954 which, in our opinion, clinches the matter before us. This section reads as follows:

'Any member of a Board may inspect any work or institution, constructed or maintained, in whole or part, at the expense of the Board and, with the previous sanction of the Chairman any register, book accounts or other documents in the office of the Board'.

In so far as the above provision vests the power of inspection in the members of the District Board qua members without more, we are clearly of opinion that it is sufficient to bring the case of Luhadia or for that matter any other member of a District Board constituted under the Act of 1954 within the four walls of the tenth clause of Section 21. The dictionary meaning of the word 'survey' which is used in this clause is a very extensive one. It means 'inspection', or 'superintendence', or 'casting of mind or eyes on something'. And we see no valid reason to think that this word has been used in any restricted sense in this clause. We may also refer here to Sivasankaram Pillai v. Emperor, AIR 1929 Mad 8 in which it was held that a member of a Taluka Board--which is perhaps another name for or at any rate indistinguishable for present purposes from a District Board--was a public servant within the meaning of Section 21 of the Penal Code.

17. As a result of the foregoing discussion, we have no hesitation in holding that Luhadia was not only a public servant at the time of the alleged commission of the offences by him in the cases before us, but also he was and continued to be a public servant within the meaning of Section 21 of the Penal Code at the time when the Special Judge took cognizance of the cases against him on the 21st August, 1957.

18. That being so, Section 6 of the Act of 1947 is fully attracted in Luhadia's case and we cannot but hold that valid sanction was and would be a condition precedent to his prosecution under Section 5(2) of that Act. As already discussed, it is true that such sanction was applied for and given in the cases before us, but for the reasons we have set out in the foregoing part of our judgment, we find ourselves unable to hold that this sanction was valid and therefore we feel bound to hold that it was and is entirely ineffectual in law.

19. Two further contentions were raised before us in this regard and we may briefly dispose of them before concluding our judgment.

20. The first was that when it was mentioned in the second paragraph of the letter of sanction (Ex. P-114) that the Governor had, on the evidence and the documents placed before him, been fully satisfied that Banshilal, Luhadia had committed an offence under Section 5(2) of the Act of 1947, we should construe the expression 'Governor' as really standing for and meaning the Minister in charge of the Local Self Government who had actually granted the sanction to prosecute. This manner of expression was sought to be defended under Article 166 of the Constitution. We have carefully considered this argument and see no merit in it.

The simple reason to our mind is that although Article 166 does lay down that an executive order passed by the State has to be issued in the name of the Governor, that does not and cannot be taken to mean that if there is another competent authority under the Rules of Business made by the Governor whose satisfaction would be required or was obtained before a valid sanction cculd be or was given, this article requires it to be mentioned or such a mention can be justified on the language of the article that the papers relevant to the sanction were placed before the Governor or that the Governor was satisfied of the case for sanction. That being so, we find it impossible for us to accept the conclusion that when the mention of the Governor being satisfied on the papers placed before him was made in the sanction, it would, amount as a matter of fact or law to this that the material papers had been put before the Minister concerned and/or that the latter's satisfaction had really been obtained as it should have been.

We have no doubt that the word 'Governor' as used in the context was intended to be used for the Governor himself as contra-distinguished from any other authority and what was intended to be conveyed thereby was that the papers had been placed before the Governor himself and that his own satisfaction had been obtained, a position which the prosecution has negatived by its own affidavit Ex. P-127. This argument has therefore no force and we reject it as essentially unsound.

21. In the second place, an application was made by the learned Deputy Government Advocate during the course of the arguments before us that we should be pleased even at this stage to allow opportunity to the prosecution to prove by a further affidavit or by leading fresh evidence in this Court that the entire papers relating to the sanction had been placed before the Minister-in-charge and that he had applied his mind thereto and that he had then accorded the sanction for the prosecution of the accused Luhadia. It is a serious question having regard to all the circumstances of the case whether the prosecution can be held entitled to this indulgence at this stage of the case.

As pointed out by the learned trial Judge in his judgment, the accused had raised the question of the invalidity of the sanction right from the inception of the trial, but somehow this question was not decided until case No. 8 of 1957, which is the subject-matter of appeal No. 96 of 1959 before us came up for final disposal on merits. This objection was, time and again, pressed before the trial court with force, with the result that that court by its order dated the 17th September 1958 ordered the learned counsel for the State to produce the relevant papers before it The court even addressed a letter (No. 364 dated 18-9-1958) to the Secretary of the Local Self-Government Department to send the relevant papers to it for perusal. It is remarkable that the Ministry concerned did not have the courtesy of sending any, reply to the court's letter.

The State Government and its legal advisers however seem to have entertained the view which as we have already discussed above was entirely unwarranted having regard to a series of authorities on the subject which they could ignore only at their peril, that the issue as to the validity of the sanction was not open to challenge in a court of law once such an order was issued in the name of the Governor. Therefore, they contented themselves by filing an affidavit (Ex. 127) on the 25th October, 1958, in the matter which, if we may say so, did not improve the case of the prosecution if it did not make it definitely worse. Even this affidavit was filed after the defence had closed its evidence on the 12th September, 1958, and, in any case, this affidavit was not verified according to law and it entirely failed to disclose whether the officer bad deposed to the contents thereof, in so far as they related to matters of fact, from his personal knowledge.

We have also reasons to suppose that the Deputy Secretary concerned held a different post at the relevant time in which position he could not have had any personal knowledge of the factual matters he was deposing to. From what we have pointed out, we are unhesitatingly of the view that the prosecution had more than ample opportunity to lead the requisite evidence if it wanted to prove the validity of the sanction in the manner required and that having miserably failed to avail itself of the same at the proper time, it is not at all entitled, in our judgment, to any further indulgence in the matter. We hold accordingly.

22. The net result is that we find ourselves constrained to hold, for the reasons we have set forth above, that there was no valid sanction for the prosecution of the respondent Luhadia in alt the four cases before us and therefore the learned Special Judge was correct in holding that he had no jurisdiction to take cognizance of them in law. In the view we have felt persuaded to take as to the illegality of the previous sanction in these cases, we consider it entirely unnecessary to deal with the appeal before us on the merits.

23. In the result, the appeal and the revisions fail altogether, and we hereby dismiss them accordingly.


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