Keshavlal Mohanlal Shah v. The State of Bombay

The State of

Bombay RAGHUBAR DAYAL, J.-This appeal, by special

leave, is directed against the judgment of the Bombay Raghubar High Court.

Dayal ]. The appellant was a Third Class Magistrate at

Sanand in 1951. He received Rs. 200 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail. This amount was not credited in the Criminal Deposit Rojmal and the appellant there-by committed criminal breach of trust with respect to the amount.

The appellant was dismissed from service on April 4, 1953, as a result of a departmental enquiry. On June 9, 1954, a complaint was filed on behalf of the State against the appellant. He was convicted of the offence under s. 409, Indian Penal Code, by the Trial Magistrate. The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad. His revision was dismissed by the High Court.

The only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State Government in view of the provisions of s. 197, Code of Criminal Procedure.

It is not disputed that a Court could not have taken cognizance of this offence against t.he appellant if he had been a Magistrate on June 9, 1954. The appel-lant was not a Magistrate on June 9, 1954, when the complaint was filed. The question then is whether the provisions of s. 197 of the Code of Criminal Pro-cedure prohibit a Court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the Court takes cognizance. Sub-section (1) of s. 197, Code of Criminal Procedure, reads:

"(l) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or

when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central [{ eshavlal Government, is accused of any offence alleged to M ohanlal Shah v. have been commjtted by him while acting or purport-The State of ing to act in the discharge of his official duty, no Rombay Court/shall take' cognizance of such offence except with the previous sanction-Raghubar

( a) in the case of a person employed in connection Dayal ]. with the affairs of the Union, of the Central Govern-ment; and

(b) in the case of a person employed in connection with the affairs of a State, of the State Govern-ment."

There cannot be much scope for the contention that a Court is prohibited from taking cognizance of an offence committed by a Judge while acting or purport-ing to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression 'any person who is a Judge', in the sub-section. Similar expression is not used in describing a Magistrate or a public servant. But it is clear that those two persons should also be 'Magistrate or a public servant' at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty.

_In connection with 'public servant' the expression 'who is not removable from his office save by or with the sanction of a State Government or the Central Government' indicates that. It is only when the public servant concerned is in service that the ques-tion of his removal from office can arise. If the public servant has ceased to be a public servant, no such question arises. Therefore it seems proper to con-strue the expression 'when any Magistrate' in the sub-section to mean 'when a person who is a Magistrate'.

Even if the expression be not construed in this form, the section says: '.when any Magistrate ...... is accused of any offence'. This indicates that it is only when the accusation is against a Magistrate that the Court will not take cognizance of an offence committed by

z96I him while acting in the discharge of his official duty,

without previous sanction. If a person is not a Magis-Keshavlal trate at the time the accusation is made, the Court can M ohanlal Shah take cognizance without previous sanction.

v.

The State of It has been strenuously urged on behalf of the ap-

Bombay pellant that the expression 'when any Magistrate is

accused of any offence' refers to the stage when the Raghubar accusation is first made against the Magistrate, that is Dayal ]. to say, when it is alleged for the first time that the

Magistrate has committed such an offence. There seems to be no justification to add the word 'first' and read this expression as 'when any Magistrate is first accused of any offence'. The occasion when such an allegation is made for the first time against a Magis-trate is not in connection with the Court's taking cognizance of the offence but will always be either when a complaint is made to a superior officer in the department or to the police. Both these authorities are free to inquire into the accusation. It is only when the departmental enquiry or the police investiga-tion leads to the conclusion that the matter is fit for going to Court that a complaint would be made or a police report would be submitted to the proper Court for taking action against the Magistrate. It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not.

This view finds further support from the language of the clauses (a) and (b). The previous sanction, according to these clauses, will be of the Central Government if the Magistrate is employed in connec-tion with the affairs of the Union and of the State Government if he is employed in connection with the affairs of a State. If the person is not employed, no sanction is necessary. Whether the person is so em-ployed or not, is to be seen shortly before the submis-sion of the complaint or police report to the Court. The sanction can be given by the proper authority on a consideration of the allegations and evidence avail-able to establish them and therefore only after the investigation is complete. The submission of the complaint or police report is expected to follow the grant of sanction within a reasonable time.

A similar question arose in S. A. Venkataraman v. Keshavlal M ohanlal Shah The State (1) in connection with the interpretation of v. the provisions of s. 6 of the Prevention of Corruption The State of Act, 1947 (Act II of 1947). Sub-section (1) of that Bombay section reads:

"(l) No Court shall take cognizance of an offence Raghubar Dayal ], punishable under s. 161 ors. 165 of the Indian Penal Code or under sub-section (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanc-tion of the Central Government, of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanc-tion of the State Government, of the State Govern-ment;

( c) in the case of any other person, of the autho-rity competent to remove him from his office."

This Court said at p. 1046:

"The words in s. 6( 1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6( 1) to even rnmotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed ........

A public servant who has ceased to be a public servant is not a person removable from any office by a competent author~ty."

The same can be said with respect to the provi-sions of s. 197 of the Code of Criminal Procedure. We therefore hold that no previous sanction is necessary for a Court to take cognizance of an offence committed

by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be J(eshavlal a Magistrate at the time the complaint is made or M ohanlal Shah

v. police report is submitted to the Court, i.e., at the The State of time of the taking of cognizance of the offence com-

Bombay mitted. We accordingly dismiss the appeal.

Raghubar Appeal dismissed. Dayal].

F AZAL BHAI DHALA

v.

March 2I.

CUSTODIAN-GEKERAL OF EVACUEE

PROPERTY, DELHI

(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,

K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)

Evacuee Property-Meaning of-Malafide transfer-Effect of -Custodian-Interference with questions not before him in appeal -Revisional Jurisdiction-Notice, if essential before exercising jurisdiction-Non-issue of notice, when fatal-Partnership at will -Dissolution of-Assets, if and when vest in Custodian-Indian Partnership Act, r932 (IX of r932), s. 43-Government of India Ordinance No. XXV II of r949, s. 7(I)-Administration of Evacuee Property Act, z950 (XXXI of z950), ss. 2(f), 26, 40.

F, the appellant, and A his brother, were partners in a busi-ness of hides and skins. On August ro, 1949, A executed a deed of sale in respect of some immoveable properties in Orissa and Madras in favour of F. A deed of dissolution of the partner-ship was also executed on August 12, 1949, wherein it was inter alia stated that the partners had agreed that the said partner-ship shall stand dissolved as from November 2, 1948.

On receipt of information that A had migrated to Pakistan after transferring his properties to his brother F, the Assistant Custodian of Evacuee Property, issued a notice to Funders. 7(1) of the Ordinance 27 of 1949 in respect of immoveable properties in Orissaincluding the properties covered by the sale deed and the business in hides and skins and certain immoveable proper-ties standing in the name of the firm.

In reply F contended that he had become the sole pro-prietor of the business with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved