1. The petitioner in this case was a Sub-Registrar in the District of Purnea. He was charged with three offences punishale under Section 161Of the Indian Penal Code and sentenced to (18) eighteen months' rigorous imprisonment and a fine of Rs. 600.
2. His appeal to the Sessions Judge was dismissed. He then obtained a rule from this Court on the District Magistrate to show cause why his conviction and sentence should not be pet aside on the grounds stated in the petition.
3. Special reference was made in the rule to the questions of misjoinder of charges, the propriety and sufficiency of the sanction, and the procedure adopted by the District Registrar in enquiring into the matter.
4. The first point taken on behalf of the petitioner is that the trial is bad for misjoinder. The third count of the charge against him is that he attempted to obtain Rs. 2 from one Saodajob Singh and others as a motive for registering 7 kobalas executed in their favour by Saidur Rahaman.
5. It appears that Saidur Rahaman sold portions of his land to seven different persons by seven different kobalas. They were all presented together for registration and the petitioner is said to have refused to register them unless he was paid an aggregate sum of Rs. 14 i.,e., at a rate of Rs. 2 for each kobala.
6. It is argued that this amounted to seven separate offences and that, therefore, having regard to the provisions of Section 235, Cr. P.C., the accused could not be tried with respect to all of them at one trial.
7. It appears to us that the question is one of fact. If the Registrar attempted to obtain Rs. 2 separately from each of the seven purchasers and was willing to register any one purchaser's kobala if that purchaser paid him Rs. 2, then the contention of the petitioner should prevail. There would be seven separate offences and seven separate charges would be necessary. But if on the other hand the Registrar treated this as one transaction and was not willing to register anyone of the documents until all the seven purchasers had paid Rs. 2 each that would be one offence and no question of misjoinder would arise. We may refer to the decision in the case of Johan Subarna v. King-Emperor 10 C.W.N. 520; 2 C.L.J. 618; 3 C.L.J. 111. The learned Judges there held that 'where an attempt was made to cheat a number of men by speaking to them in a body, a joint charge was valid.' It appears that in that case the accused demanded eight annas and four annas a head from the villagers and spoke to them in a body.
8. It has been argued on behalf of the petitioners that in their case the evidence is that the petitioners attempted to obtain bribes separately from each of the seven purchasers. This is disputed by the learned Counsel on behalf of the crown. Special reliance has been placed by the learned Counsel for the petitioner on the depositions of the 14th and 17th witnesses. We have read those depositions and we do not think that the statements are irreconciliable with either theory. The fact is that this point of misjoinder if it was not, advisedly kept in reserve for a possible application for revision was entirely lost sight of in the Courts below. There was no cross-examination on this point whether the demand was joint or several and no objection on this ground was urged. It follows from this consideration that the materials on the record are insufficient to enable us to determine with certainty whether seven offences were committed by the petitioner in this transaction or only one offence. This being a question of fact which was not raised in the Court below and on which no evidence has been specifically given, we do not think that we should be justified in revision in assuming that the petitioner committed seven offences in this transaction and that, therefore, his conviction is bad for misjoinder.
9. The second point taken on his behalf is that the directions of Government in sanctioning his prosecution have not been complied with; and reliance has been placed on the decision in Reg. v. Vinayak Divakar (28 Bom. H.C.R. Crown Cases) 32; C.L.J. 111. We do not, however, think that any real divergence from the orders of Government has been shown. The orders of Government are contained in a letter to the Inspector-General of Registration. They were based on the evidence taken by the District Registrar, Mr. Vernede and submitted to Government. The directions run as follows: 'The Lieutenant-Governor considers, therefore, that a criminal prosecution should at once be instituted and I am accordingly to request that you will instruct the District Registrar at Purneah to institute a prosecution according to law. I am to add that a special officer will be appointed to Purneah to try this case.' It will be seen that Government did not determine under Section 197, by whom the prosecution should be conducted. The Government merely directed that it should be instituted by the District Registrar of Purneah. The District Registrar of Purneah at the time was Mr. Vernede who was also the District Magistrate. On receipt of this order he took cognizance of the case and summoned the petitioner for the 2nd December directing that the case should go to the special officers for trial. It is thus perfectly clear that Mr. Vernede initiated the prosecution. His action in taking cognizance of it as District Magistrate is not, of course, precisely the same thing as instituting the prosecution as District Registrar. But this seems to us to be a mere technical distinction. If as District Registrar he had complain to himself as District Magistrate and had then as District. Magistrate passed the order to which we have referred, his action would have been in strict accordance with the Government orders. The Government orders specified under Section 197 the Court before which the trial was to be held but that direction did not preclude the District Magistrate from passing the necessary preliminary orders, which were outside the actual trial of the case. We think, therefore, that the prosecution was instituted in substantial accordance with the orders of Government and that this point raised on behalf of the petitioner must fail.
10. The third point taken is that the sanction itself is too vague and indefinite in its terms, and reference has been made to the case of Queen-Empress v. Samavier 16 M. 468. In that case it was held that the intention of the Legislature was to throw upon the authority empowered to grant sanction under Section 197, the duty of designating the offence for which leave to prosecute was given. The case was decided, however, on another point, namely, that the designation of the offence should not be delegated to a subordinate. We are not prepared to say that the Government letter does not sufficiently designate the offences for which the Sub-Registrar was to be tried. It was professedly based upon the evidence taken by Mr. Vernede and there can be no doubt that that evidence related to the same acts of bribery for which the petitioner has now been tried. Since the decision of Samavier's case 16 M. 468, a slight alteration has been made in Section 197. As the section now stands it lays down that Government may determine the offence or offences for which the prosecution is to be conducted. The word 'may' is used and not 'shall' and the terms of the section are consistent with the supposition that the Government need not in granting the sanction specify the offences with the same precision as is necessary in a charge. There is no doubt in our minds that Government has sanctioned the prosecution of the petitioner for the very offences with which he has been charged and of which he has been convicted.
11. The next ground taken is that the prosecution could not proceed on the copy of the Government letter which is on the record. There is no doubt, however, that the sanction of Government to the prosecution of the petitioner was given and the question whether or not it was properly proved by primary or secondary evidence is not one with which we are prepared to deal in revision.
12. Next it has been a ground that the trial has been vitiated by irregularities in the preliminary proceedings.
13. It appears that Mr. Vernede at first examined the witnesses on oath in the course of a departmental enquiry. He then took the statement of the accused and then proceeded to examine the witnesses further. Subsequently when the witnesses were summoned to appear before the special Magistrate, the prosecution applied for adjournment and the officer who was conducting the prosecution examined a number of witnesses. who were present, including, it is said, some of those who had already been examined by Mr. Vernede. He, too, is said to have put the witnesses on their oath though that is denied. It may perhaps be the case that neither Mr. Vernede nor the officer in charge of the prosecution was justified in administering an oath to the witnesses at that stage. The suggestion is that the oath was administered to the witnesses in order to pin them down to their statements so as to prejudice the defence. On the other hand in a case of this kind, the District authorities might well have been loath to move unless supported by testimony given on oath. The other irregularities do not greatly impress us. You cannot put witnesses into the box without first ascertaining what they have to say. With regard to Mr. Vernede's proceedings it is not for us to say how a departmental enquiry should or should not be conducted, or to condom Mr. Vernede for ascertaining what the explanation of the Sub-Registrar was and using that explanation to test the witnesses' statements. It is obvious that no very thorough enquiry can be made into any matter, unless the versions of both sides are ascertained. But whether or not these proceedings were irregular, it appears to us entirely illogical to hold that the statements of the witnesses who were examined in this preliminary enquiry lost, by reason of these irregularities, all their evidentiary value and became practically inadmissible against the petitioner. It seems to us impossible to hold that the statements of witnesses, who are examined in a preliminary enquiry, and are probably all the witnesses that they are against an accused, become wholly valueless in all subsequent proceedings, if that preliminary enquiry is irregularly conducted. No doubt, the Courts in dealing with witnesses who depose before them, should consider whether the value of their evidence has been weakened by the fact that they may have been tied down to giving it by reason of previous statements taken from them. But we do not think that this point has at all escaped the notice of the Courts below. The petitioner was defended by learned Counsel and the judgments show that the irregularity of the previous proceedings was argued. In spite of these irregularities the Courts believed the evidence which was given before them and we cannot in revision hold that they were wrong in so doing.
14. Another point taken is that the Courts, were wrong in referring to papers outside the record of the case in connection with the question whether or not the first act of bribery was committed in a house or in a tent. We certainly think that the Courts should not have referred to these documents.
15. The matter, however, is of such, trivial importance that we do hot think we need discuss it at any great length. The case for the prosecution is that the first document was presented on the 21st. December and was completed on the 23rd December, when one of the executants paid a bribe of Rs. 10 to the accused. It is admitted by the defence that the complainants did appear before the Sub-Registrar on the 21st December, and that the transaction was completed on the 23rd. If it were a question whether or not the complainants had really attended the Registration office on those dates, the discrepancy in their evidence as to whether it was a tent or a house might have been of some importance. But when these facts were admitted the discrepancy lost all its force.
16. We think, therefore, that all the points urged on behalf of the petitioner fail and the rule must be discharged.