Shreekantiah Rama Yya Munipalli v. the State of Bombay

BosE J.-These two appeals arise out of the same trial. The two appellants, Shreekantiah (the first accused in the trial Court and the appellant m Appeal No. 89 of 1954) and Parasuram (the second accused. and the appellant in Appeal No. 90 of 1954) were: tried with a third accused Dawson on a number of different charges centering round section 409 of the Indian Penal Code: criminal breach of trust by a public servant. The trial was by jury and all three were found guilty of an offence under section 409 read with section 34. They were convicted and sen­ tenced as under : Accused No. 1. Shreekantiah to one year and a fine of Rs. 500 with four months in default; Accused No. 2. Parasuram to two years and a fine of Rs. 500 with six months in default; and Accused No. 3. Dawson to six months and a fine of Rs. 200 with two months in default. The appeal of the second accused to the High Court was dismissed summarily on 25-8-1953 with the one word "dismissed". The first and third accused al>' pealed separately. Their appeal was heard by another Bench and was admitted, and a reasoned judgment followed on 23-11-1953. This, to say the least, was, in the circumstances of this case, anomalous. The al>' peals arise out of the same trial and are from one judgment and relate to the same charge to the Jury, and what is more they raise substantially the same points. This Court was constrained to express its disapproval of the summary rejections of appeal> which raise issues of substance and importance. . w~· draw attention to the remarks in Mushtak Hussein v. The State of Bombay ( 1). Those observations apply. with even greater force in the present case. The three accused are Government servants. At all material times, the first was the Officer Command~ ing the Military Engineering Stores Depot at Dehu Road near Poona. He was in over-all charge. The 1) [1953) S.C.R. 809, 820. - ) , S.C.R. SUPREME COURT REPORTS 1181 second was under him as· the officer -in charge of the Receipts and Issue control section. The third worked directly under the · secon<;l as the Assistant Stores Officer. The depot is maintained by the Central Govern­ ment and covers an area of some 150 acres. Govern­ ment stores worth several lacs of rupees are kept there. On 11-9-1948 iron stores worth about Rs. 4,000 were illegally passed out of the depot and were handed over to one Ibrahim Fida Hussain,. an agent of the approver Mohsinbhai (P.W. 1). The case for the prosecution is that the three accused, who were in charge of these stores and to whom they had been entrusted in various capacities, entered into a con­ spiracy to defraud Government of these properties and . that in pursuance of this conspiracy they arranged to sell them to the approver (P.W. 1) for a sum of Rs. 4,000. The money is said to have been paid and then the stores were passed out of the de;pot. The money is said to have been pocketed by the three accused and not credited to Government. On these facts a number of charges were framed. The first set was drawn up on 9-7-1953. All three accused were jointly charged with an offence punish­ able under section 5(2) of the Prevention of Corrup­ tion Act, 1947 and all three were further jointly charged with having committed criminal breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34. Then followed a number of alternative charges m which each was separately charged with having com­ mitted criminal breach of trust personally under sec­ tion 409. As a further alternative, all three were jointly charged under section 409, Indian Penal Code read with section 109 for having abetted each other in the commission of a criminal breach of trust under sec­ tion 409. Objection was at once taken to these charges an_d the one which concerns us now was couched in the following terms: · 1 954 · Shreekantiah Ramayya Munipalli v. The State of Bombay . Bose]. ShretkfJhliah Rama)ya Murzipnlli v. The Sltitl oj ·Bombay Bose]. ns2 SUPREME COURT REPORTS (1955] '".Jt is ftinher submitted that the trial under sec­ ti01i 5(2), Corruption Act, 1947 with Indian Penal Code seetion 409 is likely to ·embarrass the accused in their defence as it would be difficult to efface the evidence (if any) of the accused persons given on oath from the lnilids of the Jurors when consideting the charge under section 409, lhdian Penal Code. 1t is therefore prayed that the charges under section 409, Indian Penal Code and section 5(2) of the Corrup­ tion Att may not be tried together in one trial". The Assistant Public Prosecutor said he had no objec­ tion to separating the charges and leaving the one under section 5(2) for another trial. 'the Court then made the following order on 10-7-1953 : "Thus, though a joint trial for offence under sec­ tion 5(2) of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid, I think, in view of the circumstances mentioned above, it would be in the interest of justice and also in the interests of the accused themselves it the trial for the offence under secticili 5(2) of . the Prevention of Corruption Act i~ separated. I therefore grant the application to this extent and order that the charge should be amended accordingly". In view of this the charges 11-7-1953. The only difference the charge under section 5(2) others remained. were .re-framed of substance is was dropped. on that The Now it will be observed that the accused are all public servants and they contend that as, according to the prosecution, they purported to act in the dis­ charge of their ·official ·duties, sanction was necessary under section 197 of the Criminal Procedure Gode. There is ·sanction so far as the first accused is con­ cerned btit the ·second accused contends that there is none -in his case· .to justify tht present trial, so his trial, conviction and sentence 'are bad. The position about this is as follows : On 27·10..1949 the 'Gbverhor-Gefietal, act·ihg under settion 197 .of the 'Code of Criminal Procedure, sa:naioned the prosecU' tion of the first accused for offences under sections y .. .. ... - :S.C.R. SUPREME COURT REPORTS 1183 120-B, 409, 109 and so forth, for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is con­ ·cerned and thus for having abetted the commission of :that offence, and also for having committed it. Similar sanction could easily have been given again~t the other ·two accused but it was not. The sanction for these ·offences was limited to the first accused . On the same date sanction was also given for the _prosecution of the first accused under section 5(2) of the Prevention of Corruption Act and a similar sanc­ :tion was given against the second accused. The ques­ tion is whether this sanction against the second ac­ •Cused can be extended to cover his prosecution under section 409 of the Indian Penal Code. In our opinion, it cannot. At the date of the sanction the unamended Preven­ '.tion of Corruption Act (II of 1947) was in force. •Criminal breach of trust under section 409 of the Indian Penal Code was included in the definition of "''criminal misconduct" under section 5 ( 1) ( c) of the Act of 1947. Therefore, an offence under section 409 ·could be tried under the Act of 1947 and the question :arose whether it would have to be tried under that Act, or whether it could also be tried in the ordinary way by the ordinary Courts. The Punjab High Court .held in The State v. Gurucharan Singh(1) that it could not. Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and section 4 of the amend­ ing Act makes it clear that the trial can be under •either law. But in the same year the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) was passed .and because of this Act trials under section 5(2) of the Prevention of Corruption Act must be before a .Special Court and a special procedure must be fol­ lowed. Therefore, the position which these various Acts created was this. First, a choice was conferred .on some authority to choose whether any given ·ac­ cused should be tried in a special Court with a special .Procedure and be subject to a lesser punishment under :section 5(2) or vvhether he should be tried in the ordi- ( 1) A.LR. 195~ Put.jab 89. ig54 Shreekantiah Ramqva Munipalli v. The State of Bombay Bose J. 1 954 Shreekantiah ··Ramayya Munipalli' v. · The.State of Bomhf!Y . BoseJ. .1184 SUPREME COURT REPORTS .(1~55) nary way under section 409 ·of the Indian Penal Code with the risk of a higher pnnishment. The question then 1s . who 1s to do the choosing. Under section 197 of the Code of Criminal Procedure the Governor-General was at that date the sanction­ . mg authority though the words "exercising his .indi­ vidual judgment" had by that time been deleted . Under the Prevention of Corruption Act the sanc­ tioning authority was the "Central Government". Now it may well be that the two mean the same thing because of section S(a) of the General Clauses Act but that makes no difference at the moment. The fact remains that either one, or two, Government authorities were . given the right, and invested with the duty, of making an election. They had the right to say whether a certain class of public servant who had committed criminal breach of trust should be tried for that offence under section 409 "of the Indian Penal Code in the ordinary courts of the land accord­ ing to the normal procedure obtain.ing there and be subject to a maximum penalty of ten years plus an unlimited fine or be tried for the same offence under another name in a special court by a special proce­ dure and be subject to no more than seven years plus a fine which is also unlimited. At this stage of the arguments we asked the learned · counsel for the appellants whether they intended to challenge the vires of this law under article 14 of the Constitution because, if they did, the matter would have to go to a Constitution Bench as we, being only three Judges, would have no power to decide it. The learned Attorney-General at once objected because the point had not been raised at any stage and was not . to be found even rn the grounds of appeal to this Court. The learned counsel for the appellants replied · that they did not wish to take the point. Accordingly, we have to proceed in this case on the assumption that the amending Act of 1952 (Act LIX of 1952) is valid. That results in the position we have outlined above. There is a choice, not only of forum, but also . of procedure· ~d the extent of the maximum penalty. If two separate authorities are give_n ... t;h~. _ii~h~ 1 · fo ,-_, S.C.R. SUPREME COURT REPORTS 1185 · choose arid neither can encroach upon the preserve of the other, then the Governor-General ·has · not ·sanc­ tioned - the present prosecution against . the second accused and no other authority has the power ·to do so. Therefore, in that event, the sanction given tQ prosecute under section 5(2) cannot be used to cover the present trial because it is given by another authority not competent to give it. On the other hand, if the two authorities ai:e really one, then the election has been made clearly and un­ equivocally. The sanction is to proceed in the special courts with the special procedure and the second accused is not to be exposed to the risk of the higher penalty. In that event, the present trial against the second accused is incompetent. That a defect of this kind is fatal and cannot be cured is well settled. See the Privy Council in Gokul­ chand Dwarkadas v. The King( 1 ), the observations of 'Varadachariar, J. in Hori Ram Singh v. The Crown(2) and tl1e decision of this Court in Madan Mohan v. The State of Uttar Pradesh(3). But the learned Attorney­ General argued that no sanction was necessary because, according to him, despite what the second accused says, by no stretch of imagination can he be said to have been acting, or even purporting to act, in the discharge of his official duty. The argument ran as follows :-The act complained of here is the breach of trust and the prior abetment of it: the breach occurred :ls soon as the goods were loaded on Mohsinbhai.'s lorries: it was no part of this accused's official duties to permit an unauthorised removal of the goods: therefore, when he allowed that he neither acted, nor purported to act, in the discharge of_ his official duties. Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley. v. The King-Emperor( 4 ) where Zafrullah Khan, J. held that "it must be established that the ·act complainea of was an official act"' and to the observatio11s of Varadachariar, J. in Hori Ram Singh v. The Crown(•} (1) A.LR. 1948 P.O. 82. (2) [1939] F.C.R. 159, 184. · ~)_ A.LR. 1954 S.C .. 637, 641. . .. (4) [1944] F.Q.R. 262, 269. • - : . ,_- , ,;_ •(5)"[i9391 F.C.R.:t59;186; - - - Shreekantiah . Ramay;•a Munipalli v, The State of Bombay Boie]. ·1 954 ·Shreekantiah Ramayya Muhipalli v. "Thd!ta/i of Bombay~ Bo<e]. ll86 SUPREME COURT REPORTS [1955] where, dealing with section 409 of the Indian Penal ·Code, he says- "Though a reference to the capacity of the ac­ cused as a ·public servant is involved both m the charge under section 409 and in the charge under sec­ tion 477-A, there is an important difference between the ·two cases, when one comes to deal with the act complained of. In the first, the official capacity 1s material only m connection with the 'entrustment' · and does not necessarily enter into the later act of misappropriation or convers10n, which 1s the act com­ plained of". What this .argument overlooks is that the stress m the passage quoted is on the word "necessarily" which we have underlined. A later passage at page 187 ex­ plains this: "I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of ·(he section m attempt­ ing to lay down hard and fast tests". With that we respectfully agree. There are cases and cases and each must be decided on its own facts. Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too -narrowly it can never be applied, for of course it ·is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act ·can be performed in the discharge of official duty as well as m dereliction of it. The section has content and its language must be given meaning. What it says is- "when any public servant ...... is accused ·of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty .... ,, We have therefore 'first to concentrate on the word '~offence"-. Now an offence seldom consists of ·a single act. It l- is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be .. - - - • J S.C.R. SUPREME COURT REPORTS 1187 established. In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in- his .capa­ city as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dis­ honest". Now it is evident that the entrustment and/ or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. There­ fore, the act complained of, namely the disposal, could not have been done in any other way. If it was in­ nocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official · because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus "wilfully suffer" another person to use them dishonestly: section 405 of the Indian Penal Code. In both cases, the "offence" in his case would be incomplete without proving the official act. We therefore hold that section 197 of the Code of Criminal Procedure applies and that sanction was necessary, and as there was none the trial is vitiated from the start. We therefore quash the proceedings: 1 954 Shreekantiah· Ramayya Munipalli v. The State ef Bombay Bose]. 1954 Shreekantiah' Ramayya MUnipalli v. The State of Bombaj Boie]. 1188. SUPREME COURT REPORTS [1955] against · the second accused as also his conviction and sentence. We now turn to the appeal of the first accused. He has been convicted under section 409 of the Indian Penal Code read with section 34. The main poi!\t here concerns a vital misdirection m the charge to the jury about section 34. The learned Additional Sessions Judge misunderstood the scope and content of this section and so misdirected the 1ury about the law. The section was expounded at length in paragraphs 15 and 16 of the charge and though some of the illus­ trations given are on the right lines, there 1s much there that 1s wrong and which, if acted on, would cause a mtscarnage of justice. The essence of the. misdirection consists m his direction to the jury that even though a person "may not be present when the offence is actually committed" and even if he remains "behind the screen" he can be convicted under sec­ tion 34 privided it 1s proved that the offence was committed in furtherance of the common intention. This is wrong, for it is the essence of the section that the person must be physically present at the actual comnuss1on of the crime. He need not be present· in the actual room; he can, for instance, stand guard by a gate outside ready to warn his compamons about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but )le must be physically present at the scene of the occurrence and must actually participate m the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis 1s between the preliminary stages, the agreement, the preparation, the planning, which is covered by section 109, and the stage of commission when the plans are put into effect and carried out. Section 34 1s concerned with the latter. It is true there must be some sort of preli­ nunary plarming which may or may not be at thl:' scene of the cnme and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occur­ rence coupled with actual participation which, of •• '...,.-~ ' ' .. ... - - S.C.R. SUPREME COURT REPORTS- 1189; course, can be of -a passive character such as standing by a door, provided _that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his -part in the pre-arranged plan when the time comes for him to " act. , , -'-. The emphasis in section 34 is on the word "done": ... "When a criminal act is done by several persons ...... " It is essential that they join in the actual doing of the act and not merely in planning its perpetration. The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh v. The King-Emperor(1). At page 52, he explains that "participation in action" is the' leading feature of section 34. And at page 53 in explaining section 114 of the Indian Penal Code, he says- "Because participation de facto (as this case shows) may sometimes be obscure in detail, it is -established by the presumption 7uris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of sec­ tion 34". At page 55 he says about section 34 that- "participation and joint action in the actual com­ mission of crime are, in substance, matters which stand in antithesis to abetments or attempts". The misdirection is plain and it goes to the root of the matter because the jury returned a verdict of -guilty· under section 409 of the Indian Penal Code -read with section 34 alone and not under section 409 read with section 109. It is part of the defence of the first accused that he was not present when the goods were loaded nor was he present when they were allowed to pass out of the gates, that is to say, that he was not present when the offence was committed. It is true there is evidence to show that he was there when the lorries left but apart from the fact that there is a small discrepancy on the point, there is nothing to indicate that this evidence was believed. If he was not present he (1) [1924] L.R. 52 I.A. 40. Shreekantiah Ramayya Munipalli v. The State of BomhD:Ji Bose]. 1 954 Shreekantiah Ramayya Munipalli v. The Stale of Bombay Bose]. ll90 SUPREME C01JRT REPORTS [1955] carm0t be convicted with the aid of section 34. He ,,_' could hav.e been convicted of the abettnent had the jury returned a verdict to that effect becaus.e there is evidence 0f abetment and the charge about abetment: is right in law, But the jury ignored the abetment part of the charge and we have no means of knowing whether ·they believed :this part of the evidence or "1v- not. · 1 There is also non-directi0n on .an important point ,, which may have caused a miscarriage of justice. The case for the prosecution is that the accused disposed of the goods to Mohsinbhai for a sum of Rs. 4,000 which was duly paid to the second accused on the 10th. The learned trial Judge told the jury that- "the evidence led by the prosecution about the payment of the Rs. 4,000 is proved to be utterly use, less", .and in telling them why he gave them a number of reasons. But he omitted to follow this up by telling them that if they rejected this part of the prosecution case, as he invited them to do, then the strongest part of the case against ·the accused collapsed because officers in the position of the accused do not commit -·'-" illegal acts like this and expose themseJyes to a prosecution and possible disgrace unless they .are prompted by some strong m@tiv.e, usually self interest; and though a conviction can be based on evidence which does not disclose a mo ti v.e if the facts proved justify such a .course, yet it would ordinarily be un- safe to convict in a case like the present in the .ab- sence of proof indicating an adequate reason. for criminal behaviour on the part of the accused. Had the jury been told this, as they should have .been, it is p0ssible they would not have returned a. verdict 9£ guilty. In the .circumstances, we have no alternative but ., to quash this .con¥iction also. We have now to consider whether there should be a retrial. As the present tr-ial cannot proceed against the second .accused, and as all the accused are said to have acted in concert each playing an appointed part t. in a common plan, we do not .think it would be right - ... - < ; ) I .. >.y· S;C.R. SUPREME COURT REPORTS 1191 to direct a retrial though this is. the rionnal course . when a jury frial is set aside on the grounds of i:nis­ direction and non-direction. We tl).erefore discharge (nqt acquit) both the appellants leaving it to Govern­ ment ~ither to drop t.he e.ntire matter or to p~oceed in such. manner as it may be advised.,. We do .this because the accused· expressly asked that the • · charge· under the Prevention · of ·Corruption Act shbuld· be''· left over ··for a separate ~rial,. ·The two convictioµ:s ~re, ' therefore quashed and. ·also . the sentences: ~e. are . told that the first accused has already .served out his.; sentence. The fine if paid, will be refunded. The bail bond of the second accused will .be cancelled. MAHANT SALIG RAM v. MUSAMMAT MAYA DEVI. ' (~: ~· DAS, BHAGWAT! and SYED JAFER IMA¥ JJ.] '.' Custom-succession-Non-ancestral property-Daughter virsus collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in the District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of -Riwaj-i-am of Gurdaspur District of the year 1913-Whether a t·eliable document-,-Answer to questions 16 and 17.-Value of, It is now well-settled that the general custoin of the P~njab, being that a daughter excludes the collaterals from succession to the self-acquired property of her father. the initial onus, therefore, must, on principle, be on. the. collaterals to show that the general custom in favour of the daughter's succession to the. self-acquired property <1f her tather has been varied by a special local .custom . excluding· t~c, daughter which is binding on the parties. . . . , . • It is also well-settled that though the entri~s ·in the'· Riwaj-i~am are entitled to an initial presumption in favour of their cortectne,s· irrespective of the question whether or not the custom, 'as recorded, is in accord ·with the general custom, the quantum of evidence neces' sary to rebut that presumption will, however, 'vary with the ·facts and circumstances of each case. Where, for instance; the Riwaj-i­ am lays down a custoin in consonance with the general agricultural custom of the province, very strong proof would be required to dis- · place that presumption; but where, on the other hand, the custom as recorded in the Ri waj'i-am is opposed to the custom generally prevalent; the presumption will be considerably weakeneq, Likewise1 40-89 S. C. India/59 1954 · Shreekanliak .Ramayya · Munipalli v. The Stale of Bomha.J Bose]. 1955 January ~1