1. The appellant was tried by a Judge and jury and was convicted of an offence under Section 466, Penal Code, upon the allegation that he being a public servant had falsified a public register kept by himself, to wit, the order sheet of a Debt Settlement Board constituted under the Bengal Agricultural Debtors Act.
2. The prosecution case was that the accused was the President of the Kaikala Debt Settlement Board of which there were three other members, and that this board considered an application by Benoy Krishna Chatterji, the complainant in the case, for a settlement of certain debts owing by his grandfather who was then in jail. On 26th October 1941, a settlement was arrived at under the terms of which a debt owing to the Narayanpur Jautha Bank was settled at a sum of Rs. 190 to be paid in certain instalments. This fact was entered in the order sheet of the proceeding on that date by the accused. The final award was read out by the accused on 28th December, that is to say, two months later, but the sum therein mentioned as owing to the Narayanpur Jautha Bank was shown as Rupees 675 also payable in certain instalments. The award was signed by the accused and by the other members of the board. Two members of the board, who have given evidence on behalf of the prosecution, namely, P.W. 1, Panchanan Das, and P.W. 4, Shaik Moniruddin Mondal, have stated that the reading out was done in the presence of the parties. But the complainant Benoy Krishna Chatterji has deposed that he was not present when the award was read out, and that he did not discover the discrepancy between what was stated in the award, namely, that a sum of Rs. 675 was owing to the Jautha Bank, and what was agreed to as the figure at which this particular debt was to be settled in the proceedings which took place on 26th October, that is, a sum of Rs. 180. The order sheet itself shows that in the entry made on that date the figure of the amount relating to this particular debt was overwritten, and it is impossible to determine from an examination of this entry what the original figure was. The figure now there is certainly Rs. 675.
3. The evidence upon which the prosecution mainly relied was the testimony of the complainant who insisted that the amount for which this debt was settled on 26th October, was Rs. 190 only and the remaining evidence given in support of this story did not carry the matter any further. The two members of the board who were examined as witnesses could not say for what figure the debt was settled on 26th October. Another witness who was examined by the prosecution was 9 witness 5, Paresh Chandra Dutt, the clerk of the board and he also could not say what sum was agreed to on 26th October. His evidence, however, is that it was the accused who made all the entries in the order sheet that the entire record of the proceedings remained throughout in the custody of the accused, and that nobody else ever had access to that record. This witness further stated that he saw the order sheet on 26th October after the entries had been made, and that at that time there was no overwriting in the document. There was one witness, P.W. 7, Shaik Ahad Bux Mondal, who deposed that he was present at the office of the Debt Settlement Board on 26th October when these proceedings were taking place, having come there in connexion with another case, and that he overheard the discussion regarding the settlement of the debts in which the complainant was interested. This witness stated that he remembered that the debt due to the Jautha Bank was settled for Rs. 190. Here it may at once be stated that the evidence of this witness must be rejected. It is quite incredible that after the lapse of the many months which intervened between 26th October and the date when this witness gave evidence, he could possibly have remembered the particular a figure for which this debt had been settled. He had no interest in these proceedings, and in cross-examination he admitted that it was impossible for him to recall any other figures of debts which were under discussion by the Debt Settlement Board on that date.
4. We are left, therefore, with the testimony of the complainant alone. It has been contended on behalf of the Crown that the very appearance of the order sheet supports that evidence. The overwriting in the entry in question is beyond dispute and is not, in fact, disputed by the learned advocate who appears in support of this appeal. His contention, however, is that the original figure which was written in the order sheet, whatever it was, was subsequently altered in the course of some later proceedings which must have been taken, upon the application of one or both the parties in relation to this particular debt. It is contended by the learned advocate that in debt settlement proceedings it often happens, that after a debt has been settled for a particular sum, the parties may wish to alter that sum to another figure. In such an event, it becomes necessary for the person who is in charge of the order sheet of the proceedings to alter the original entry so as to make it conform with the new agreement. In support of this contention Mr. Dutt, who appears for the appellant, has placed before us the original order sheet of these proceedings, and has drawn our attention to numerous alterations, many of them by overwriting, in entries which immediately precede the one with which we are concerned. Indeed some of those entries relate to other debts of the complainant's grandfather which were also settled on 26th October. The prosecution has never suggested that the other entries were anything but honest, and Mr. Mukherji who appears for the Crown has with proper fairness conceded that this circumstance detracts very seriously from the incriminatory nature of the alteration in the figure which related to this particular debt. In this connexion, one particular entry in this very order sheet is extremely significant. It is an entry of 16th October and it is as follows : 'Narayanpur Jautha Bank, Rs. 378. Rs. 297, Rs. 675.' These words and figures appear in consecutive columns which represent, respectively, (1) the name of the creditor, (2) the amount of the principal, (3) the amount of the interest, and (4) the total. In the original the figure '675' is in heavy writing and certainly appears to be produced by overwriting. The two earlier figures of '378' and '297' are in ordinary writing and the sum total of these two figures is correctly shown as '675.' If these original figures of '378' and '297' actually represented the principal of the debt and the interest payable thereon to the Jautha Bank, it cannot be said that the figure produced by overwriting, that is, 675 was due to miscalculation or error or that it was a figure which had been deliberately falsified. The prosecution did not say that the figure '378' and the figure '297' were dishonestly entered. But if such a position is in fact accepted, then the complainant's story that his debt was ultimately settled for Rs. 190 on 26th October becomes far less easy to believe. This being the evidence in the case, one would have expected that the learned Judge would have analysed it in the manner which I have indicated above, and would have explained to the jury its evidentiary value It was the duty of the learned Judge to make it plain to the jury that there was really no evidence in the case excepting the oral testimony of the complainant, and that if they had any doubt in their minds regarding the reason for the overwriting in the order sheet which was the subject-matter of the charge, they should acquit the accused.
5. The case is really a simple one. But the learned Judge's charge to the jury has confused the issue to such an extent that we could not understand the real nature of the case until we had ascertained for ourselves what the evidence was, and until we had had the order sheet shown and explained to us by Mr. Dutt and by Mr. Mukherji who appears for the Crown. There are numerous infirmities in this charge, but it will suffice to mention only a few In dealing with the oral evidence, the learned Judge has failed to direct the jury that the only evidence which has any bearing upon the guilt or innocence of the accused is the evidence of the complainant and of witness 7, and he has omitted to caution the jury against accepting the evidence of the latter. In dealing with the order sheet, the Judge has said a number of things which are misleading, for instance, he has stated in more than one passage in his charge that there is an overwriting in the award as well. He has failed to give the jury any directions with regard to the inference to be drawn from the other alterations in the order sheet which must be taken to be honest alterations. The Judge has also failed to draw the attention of the jury to that entry in the order sheet relating to this debt which contains the three figures, 378, 297,675. The charge as a whole tends to produce a very misleading impression of the case foe the prosecution and of the evidence which was given in support of it. It is a confusing charge and in our opinion the jury must have been misled by it. The verdict of the jury must accordingly be set aside.
6. From what has been stated above, it is apparent that the evidence in the case is very weak, and we do not think that a retrial of the case is called for in the interest of justice. The appellant must accordingly be acquitted. Before we leave the case, we have to say a few words about a question of law upon which we have been invited to pronounce a decision. In fact, we are bound to say something about this point, because it relates to a bar in limine and we could not have gone into the merits of this appeal without having decided this question first. The accused was a public servant under Section 49, Bengal Agricultural Debtors Act, and the charge against him was that he had falsified a public register kept by him, that is to say, the order sheet of the proceedings relating to this particular matter which were taken before the Debt Settlement Board. It is admitted that no sanction was obtained by the prosecution for the trial of the accused, and it was argued by Mr. Dutt that such a sanction was necessary under the provisions of Section 197, Criminal P.C. We negatived this contention before we considered the merits of the case.
7. At the time when the accused was put upon his trial, he no longer held office, having been removed therefrom before this prosecution was launched. He was, therefore not a public servant at the time when it was decided that he should be prosecuted. Mr. Dutt's contention is that in Section 197 of the Code the intention is to protect all persons from frivolous and vexatious prosecutions when the charge against them relates to some offence alleged to have been committed by them while they held office as public servants. In other words, his contention amounts to this, that no prosecution can be launched in respect of such an offence either before or after the person to be charged has ceased to hold office unless sanction under Section 187 (sic. 197) has been obtained. According to Mr. Dutt, the protection afforded by the section is a very wide one and is necessary, because otherwise numerous prosecutions might be launched against public servants directly after they had relinquished office, in respect of things done by them while they held office. Such an argument was given effect to in two decisions of other Courts to which our attention has been drawn. They are the cases in Suganchand v. Naraindas ('32) 19 A.I.R. 1932 Sind 177 and In re S.Y. Patil ('37) 24 A.I.R. 1937 Nag. 293. We however do not agree with the view expressed in those cases. It is clear from the language of the section itself that the protection afforded is available only to such persons as is 'a Judge,' 'Magistrate' or 'public servant' at the time when the proceedings are sought to be taken. The section says,
when any person who is a 'Judge,' etc...is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....
8. In this section the words which relate to a public servant are as follows : 'Any public, servant who is not removable from his office.' The important word here is the verb 'is.' If it was intended that the protection was to extend not only to a person who was still in office at the time when the prosecution was to be launched, but also to a person who was not in office at that time but was in office when the offence charged was said to have been committed, the language of the section would, we think, have been very different. Again, Sub-section (2) of the section which enables the Governor-General or Governor to determine certain matters relating to the prosecution, speaks of 'the prosecution of such Judge, Magistrate or public servant.' We think that these words also were clearly meant to apply only to such persons as are Judges, Magistrates or public servants at the time when the Governor-General or Governor determines the question or questions arising under Sub-section (2). In our judgment, the status referred to in the words 'Judge,' 'Magistrate' and 'public servant' refers to the status existing at the time when proceedings are initiated, and if the person prosecuted does not enjoy the particular status at that time no sanction under Section 197 of the Code is called for. The appeal is accordingly allowed. The conviction of and the sentence passed upon the appellant are set aside and he is acquitted. We direct that the accused be released if in custody or if on bail the bail bond be cancelled.