Keshavlal Mohanlal Shah v. the State of Bombay
RAGHUBAR DAYAL, J.-This appeal, by special
leave, is directed against the judgment of the Bombay
High Court.
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
J
;./
I S.C.R. SUPREME COURT REPORTS 453
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
Government, is accused of any offence alleged to
have been commjtted by him while acting or purport
ing to act in the discharge of his official duty, no
Court/shall take' cognizance of such offence except
with the previous sanction-
( a) in the case of a person employed in connection
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
(
[{ eshavlal
M ohanlal Shah
v.
The State of
Rombay
Raghubar
Dayal ].
z96I
Keshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ].
him while acting in the discharge of his official duty,
without previous sanction. If a person is not a Magis
trate at the time the accusation is made, the Court can
take cognizance without previous sanction.
It has been strenuously urged on behalf of the ap
pellant that the expression 'when any Magistrate is
accused of any offence' refers to the stage when the
accusation is first made against the Magistrate, that is
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
1 S.C.R. SUPREME COURT REPORTS 455
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.
The State (1) in connection with the interpretation of
the provisions of s. 6 of the Prevention of Corruption
Act, 1947 (Act II of 1947). Sub-section (1) of that
section reads:
"(l) No Court shall take cognizance of an offence
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
{I) [1958] S.C.R. 1037.
Keshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ],
J(eshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal].
March 2I.
by a Magistrate while acting or purporting to act in
the discharge of his official duty if he had ceased to be
a Magistrate at the time the complaint is made or
police report is submitted to the Court, i.e., at the
time of the taking of cognizance of the offence com
mitted. We accordingly dismiss the appeal.
Appeal dismissed.
F AZAL BHAI DHALA
v.
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