# Bawa Harigir v. Assistant Gusto· dian, Evacuee Property, Bhopal Mudholkar ]

- **Citation:** [1962] 1 S.C.R. 194
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal baiah & A noth" Appeal No. 109 of 1960
- **Bench:** B. P. Sinha, J. R. Mudholkar, T. L. Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bawa-harigir-v-assistant-gusto-dian-evacuee-property-bhopal-mudholkar-1989
- **Pages:** 12

## Headnote

..
•
Criminal Trial-Accused persons charged with more than three
I!
offences in the course of the same transaction, if could be jointly
tried-Large number of charges spread over long period-Framing
of-Duty of Judge or Magistrate-Conspiracy if distinct from abetment-Special Judge appointed under Criminal Law Amendment
Act, if could try offences under Criminal ·Procedure Code, at the
same trial-Indian Penal Code, I86o (Act XLV of 1860), ss. rn9,
I2oB, 463-Code of Criminal Procedure, 1898 (Act V of 1898),
ss. 234, 239-Criminal Law Amendment Act (46 of 1952), ss. 6, 7Prevention of Corruption Act, 1947 (II of 1947), s. 5·
(1) [1961] 3 S.C.R. 448.
•
1 S.C.R. SUPREME COURT REPORTS
195
The High Court quashed the charges framed against the
respondents. The charge sheet stated that accused r to 9 had
The State of
committed offences under s. rzoB of the Indian Penal Code and A>idhra Pradesh
s. 5(2) of the Prevention of Corruption Act, r947, and that
accused No. r had committed offences under ss. 5(r)(c) and 5 K
d' v.ll
Sub
.
f C
.
A
d
6
6
f
an ima a
-
(r)(d) o.f the Prevent10n o
orruphon ct an
ss. 4 3, 4 4 o baiah & Another
the Indian Penal Code and accused z to 8 abetted all the offences
and each of the accused in addition had committed offences
under s. 420 of the Indian Penal Code.
The High Court directed the Special Judge to frame fresh charges inter alia on the
ground that charge No. r was an omnibus charge containing as
many as 203 offences and that it was direct violation of ss. 234,
235 and 239 of the Code of Criminal Procedure. Further that
the Special Judge had no jurisdiction to try the offences under
s. r20B read with ss. 466, 467 and 420 of the Indian Penal Code
because he was appointed a Special Judge under the Criminal
Law Amendment Act, only for trying offences under Prevention of COl'ruption Act. The question was whether all the
accused persons could be jointly tried in respect of all these
offences.
Held, that when several persons had committed offences in
the course of the same transaction, they could jointly be tried
in respect of all those offences under s. 239 of the Code of
Criminal Procedure and the limitation placed by s. 234 of the
Code could not come into operation, but the charges should be
suitably split up so that the accused persons would not be prejudiced in answering the charges and defending themselves.
Held, further, there is no analogy between s. rzoB and
s. rag of the Indian Penal Code.
There may be an element of
abetment in a conspiracy which is an offence by itself but conspiracy is something more than abetment for which a person
could separately be charged. Offences created under ss. rog and
:czoB of the Indian Penal Code are quite distinct and there is no
warrant for limiting the prosecution to only one element of conspiracy, that is, abetment when the allegation is that what
a person did was something over and above that. If the alleged
offences flow out of the conspiracy the appropriate form of
charge would be a specific charge in respect of each of those
offences along with the charge of conspiracy.
Held, further, that the introduction of a large number of
charges spread over a long period was a question of propriety
and it should be left to the Judge or the Magistrate trying the
case to adopt the course which he thought to be appropriate
in the facts and circumstances of the case.
Held, also, that while a special Judge appointed under s. 6
of the Criminal Law Amendment Act has jurisdiction to try
cases under s. 5 of the Prevention of Corruption Act he can
under s. 7(3) of the Criminal Law Amendment Act try other
offences under the Criminal Procedure Code for which the accused can be charged at the same trial.
196
SUPREME COURT REPORTS
[1962)
I96I
In re Venkataramaiah, A.LR. 1938 Mad. 130, disapproved.
~
S. Swaminatham v. State of Madras, A.LR. 1957 S.C. 340,
The State of
R. v. Dawson, [1960] l All E.R. 558 and Durgadas Tulsiram Sood
Andltra Pradesh v. State, I.L.R. 1954 Born. 554, referred to

## Text

Bawa Harigir
v.
Assistant Gusto·
dian, Evacuee
Property, Bhopal
Mudholkar ].
1961
March 8,
194
SUPREME COURT REPORTS
[1962]
when it was pointed out to him that in Rabia Bai v.
The Custodian-General of Evacuee Property (1), this
Court has upheld the order of the Custodian refusing
to confirm the transfer on the ground that the evacuee
had effected it in bad faith.
The last contention of learned counsel is that he has
been discriminated against by .the Custodian in the
matter of confirmation of the transaction. He said
that prior to the sale of the land to him by Rehmatullah, the latter had sold a house to some nurses and
that that sale was found to be for inadequate consideration but in spite of that it was confirmed by the
Custodian while the sale in his favour, though found to
be for an adequate consideration was not cpnfirmed.
We would repeat that the order of the Custodian is a
judicial order and merely because he may have gone
wrong in dealing with one case we cannot hold that
the petitioner has been discriminated against. The
petition is wholly without basis and is accordingly
dismissed without costs.
Petition dismissed.
THE STATE OF ANDHRA .PRADESH
v.
KANDIMALLA SUBBAIAH AND ANOTHER
(B. P. SINHA, C. J., J. R. MUDHOLKAR and
T. L. VENKATARAMA AYYAR, JJ.)
..
•
Criminal Trial-Accused persons charged with more than three
I!
offences in the course of the same transaction, if could be jointly
tried-Large number of charges spread over long period-Framing
of-Duty of Judge or Magistrate-Conspiracy if distinct from abetment-Special Judge appointed under Criminal Law Amendment
Act, if could try offences under Criminal ·Procedure Code, at the
same trial-Indian Penal Code, I86o (Act XLV of 1860), ss. rn9,
I2oB, 463-Code of Criminal Procedure, 1898 (Act V of 1898),
ss. 234, 239-Criminal Law Amendment Act (46 of 1952), ss. 6, 7Prevention of Corruption Act, 1947 (II of 1947), s. 5·
(1) [1961] 3 S.C.R. 448.
•
1 S.C.R. SUPREME COURT REPORTS
195
The High Court quashed the charges framed against the
respondents. The charge sheet stated that accused r to 9 had
The State of
committed offences under s. rzoB of the Indian Penal Code and A>idhra Pradesh
s. 5(2) of the Prevention of Corruption Act, r947, and that
accused No. r had committed offences under ss. 5(r)(c) and 5 K
d' v.ll
Sub
.
f C
.
A
d
6
6
f
an ima a
-
(r)(d) o.f the Prevent10n o
orruphon ct an
ss. 4 3, 4 4 o baiah & Another
the Indian Penal Code and accused z to 8 abetted all the offences
and each of the accused in addition had committed offences
under s. 420 of the Indian Penal Code.
The High Court directed the Special Judge to frame fresh charges inter alia on the
ground that charge No. r was an omnibus charge containing as
many as 203 offences and that it was direct violation of ss. 234,
235 and 239 of the Code of Criminal Procedure. Further that
the Special Judge had no jurisdiction to try the offences under
s. r20B read with ss. 466, 467 and 420 of the Indian Penal Code
because he was appointed a Special Judge under the Criminal
Law Amendment Act, only for trying offences under Prevention of COl'ruption Act. The question was whether all the
accused persons could be jointly tried in respect of all these
offences.
Held, that when several persons had committed offences in
the course of the same transaction, they could jointly be tried
in respect of all those offences under s. 239 of the Code of
Criminal Procedure and the limitation placed by s. 234 of the
Code could not come into operation, but the charges should be
suitably split up so that the accused persons would not be prejudiced in answering the charges and defending themselves.
Held, further, there is no analogy between s. rzoB and
s. rag of the Indian Penal Code.
There may be an element of
abetment in a conspiracy which is an offence by itself but conspiracy is something more than abetment for which a person
could separately be charged. Offences created under ss. rog and
:czoB of the Indian Penal Code are quite distinct and there is no
warrant for limiting the prosecution to only one element of conspiracy, that is, abetment when the allegation is that what
a person did was something over and above that. If the alleged
offences flow out of the conspiracy the appropriate form of
charge would be a specific charge in respect of each of those
offences along with the charge of conspiracy.
Held, further, that the introduction of a large number of
charges spread over a long period was a question of propriety
and it should be left to the Judge or the Magistrate trying the
case to adopt the course which he thought to be appropriate
in the facts and circumstances of the case.
Held, also, that while a special Judge appointed under s. 6
of the Criminal Law Amendment Act has jurisdiction to try
cases under s. 5 of the Prevention of Corruption Act he can
under s. 7(3) of the Criminal Law Amendment Act try other
offences under the Criminal Procedure Code for which the accused can be charged at the same trial.
196
SUPREME COURT REPORTS
[1962)
I96I
In re Venkataramaiah, A.LR. 1938 Mad. 130, disapproved.
~
S. Swaminatham v. State of Madras, A.LR. 1957 S.C. 340,
The State of
R. v. Dawson, [1960] l All E.R. 558 and Durgadas Tulsiram Sood
Andltra Pradesh v. State, I.L.R. 1954 Born. 554, referred to.
'.
Kandimalla SubCRIMINAL
APPELLATE
JURISDICTION:
Criminal
baiah & A noth" Appeal No. 109 of 1960.
Appeal by special leave from the judgment and
order dated April 18, 1958, of the Andhra Pradesh
High Court in Criminal Misc. Petition No. 1421 of
1957.
H.J. Umrigar and T. M. Sen, for the appellant.
The respondent did not appear.
1961. March 8. The Judgment of the Court was
delivered by
t
M udholkar ] .
MuDHOLKAR, J.-The State of Andhra Pradesh has
come up in appeal against the order passed in revision
by the High Court of Andhra Pradesh quashing the
charges framed against nine persons by Mr. Syed
Firasath Hussain, Special Judge, Vijayawada. The
revision petition was preferred by only two of those
persons.
The accused no. 1 Parthasarathi, who was a lower
division clerk in the Central Excise Circle Office at
Namsaraopet was in charge of the TP 1 permit books
(transport permit) intended for issue to Central Excise
Officers for granting permits to persons applying bona
fide for licences to transport tobacco.
According to
the prosecution two of those books containing 25 permit forms each were found missing from the aforesaid
office.
The allegation is that Parthasarathi sold those
books to the remaining accused for a consideration of
Rs. 400.
It was found during the investigation that
seven permit forms from out of these books had been
used for transport of non-duty paid tobacco after
blanks in those forms had been filled and the signatures of certain Central Excise Officers forged on them.
Further, according to the prosecution, accused nos. 2
to 8 got authorisation letters prepared with the help
of accused no. 9 by forging the signatures of the supposed consignors of the tobaccv. With the help of
..
•
1 S.C.R. SUPREME COURT REPORTS
197
these documents the accused nos. 2 to 8 are said to
r96r
have transported tobacco to the licensed premises of
5
1
.
. d
s:
h
b
The
late o
certam persons and receive payments 1or t e to acco Andhra Pradesh
delivered to them.
v.
The prosecution alleged that all this was done by r<andimalla Sub·
all the accused by entering into a conspiracy, the baiah &· Another
object of which was to procure and utilise blank TP 1
f
1
Afudholkar ].
forms, fill them in, forge the signatures o Centra
Excise Officers and use them as genuine for the purpose of transporting tobacco without paying duty upon
it. The charge sheet states that the accused nos. 1 to
9 have committed the offence under s. 120 B, Indian
Penal Code read with s. 5(2) of Prevention of Corruption Act, 194 7 (II of 194 7). It further states that the
accused no. 1 had committed offences under s. 5(l)(c)
and 5(l)(d) of Prevention of Corruption Act, 1947 as
also offences under ss. 420, 463 and 464, Indian Penal
Code. The accused nos. 2 to 8 are said to have abetted
all these offences. Each of these accused is in addi.
tion said to have committed offences under s. 420,
Indian Penal Code.
The Subordinate Judge, Vijayawada was appointed
as Special Judge under the provisions of s. 6 of the
Criminal Law Amendment Act, 1952 (II of 1952) to
try offences under the Prevention of Corruption Act,
1947. He framed the following charges:
"CHARGE NO. 1.
That you, Accused 1 to 9 on or about 19-9-1953
to 5.11.53 agreed to do by illegal means to wit, A-1
being a public servant in the Central Excise Department dishonestly sold two blank T.P. 1 books for
Rs. 350 to one late J ogayya and obtained pecuniary
advantage for himself and A-2 to A-8 and that A-9
forged 7 T .P. 1 forms, out of the above two books
which forged T.P. ls were used by A-2, A-3, A-5:
A-7, A-8 with the assistance of A-4 and A-6 and
cheated the merchants of Markapur and Cumbum
by using the said forged T.P. ls for the above purpose of cheating; and that the above acts were done
by all of you in pursuance of a conspiracy and that
thereby you A-1 have committed an offence punishable under Section 120B of the I.P.C. read with
The State of
Andhra Pradesh
v.
Kandimalla Sub~
baiah & A not her
M udholkar j.
198
SUPREME COURT REPORTS
[1962]
Sec. 5(l)(c) and (d) punishable under Sec. 5(2) of the
Prevention of Corruption Act and also under
Sec. 109 I.P.C. read with Sec. 420, 466 and 467 of
the I.P.C. and that you, A-2 to A-9 under Sec. 120 B
read with Sec. 5(l)(c) and (d) punishable under
Sec. 5(2) of Act II of 1947 and Sec. 420, 466 and 467
and 471 I.P.C. and within my cognizance.
CHARGE NO. II.
That you A-1, being a public servant in the Central Excise Department, being a Lower Division
Clerk in the office of the Superintendent of Central
Excise, Narasaraopet Circle, since 1951 and in such
capacity were entrusted since 1951 with blank
T.P. 1 books, dishonestly sold two of the above said
T.P. 1 books under your control to one late J ogayya
for Rs. 350, in or about the month of April, 1953
and dishonestly, fraudulently misappropriated the
said amount and thereby committed the offence of
misconduct punishable under Section 5(2) read with
Sec. 5{l)(c) of the Prevention of Corruption Act, II
of 1947 and within my cognizance.
CHARGE NO. III.
That you A-1, in the above capacity, by corrupt
and illegal means, and by abusing your position as
a public servant, obtained for yourself an amount
of Rs. 350 being the sale proceeds of the two Blank
T.P. 1 books, from one late Jogayya and obtained for
A-2 to A-8, a pecuniary advantage ofRs.10,120-14-0,
the amount of revenue due to the Central Government and thereby committed the offence of Criminal
misconduct punishable under Sec. 5(2) read with
Sec. 5{ 1 )( d) of the Prevention of Corruption Act II
of 1947 and within my cognizance.
CHARGE NO. IV.
That you, A-9, on or about the days between
September and November, 1953 forged 7 blank
T.P. ls Nos. 610432, 610443, 610460, 610448, 61044,
610468, 610446 as if they are documents to have
been made by the Central Excise Officials in their
official capacity by filling up the same within false
particulars and fixing the signatures of different
• '
1 S.C.R. SUPREME COURT REPORTS
199
Central Excise Officials so as to show that they are
genuine T.P. 1 permits that you thereby committed
an offence punishable under Section 466 I.P.C. and
within my cognizance.
CHARGE No. V.
I96I
The State of
A ndhra Pradesh
v.
Kandimal!a Sub.
baiah ~ Another
That you, A-p, on or about the days between
_
September and November, 1953 forged the 7 T.P. 1
Mudholkar J.
permits mentioned in Charge No. IV purporting to
be valuable securities with intent and that they
may be used for transporting tobacco as duty paid
tobacco and that you thereby committed an offence
punishable under Section 467 of the I. P. C. and
within my cognizance.
CHARGE No. VI.
That you, A.2 to A-8, on or about the days
between 12-9-53 and
5-11-53 at Chodavaram,
Satulur, Velpur and Tenali dishonestly used the
above seven forged T.P. ls mentioned in Charge
No. IV as genuine, which you know at the time you
used them as forged documents and transported
26,989 lbs. non-duty paid tobacco as duty paid
tobacco by quoting the above fictitious documents
as proof of payment of duty and that you thereby
committed an offence punishable under Section 465
and 471 of the I.P.C. and within my cognizance.
CHARGE No. VII.
That you, A-2 to A-8, on or about the days
between 19-9.53 and 5-11-53 at Cumbum and Mar.
kapur cheated (1) B. Ranga Subbayya of Cumbum
(2) P. Ch. Venkata Subbaiah and (3) Shri B. Seshaiah
of Markapur and thereby dishonestly inducing them
to deliver you, Rs. 10,994-10-3, was the property
of the above said persons; and that you thereby
committed an offence punishable under Section 420
I.P.C. and within my cognizance."
While seven of the accused persons were content
with the charges, two preferred an application for
revision before the High Court which, as already
stated, accepted it and quashed the charges and
directed the Special Judge to frame fresh charges on
the lines indicated in the judgment.
200
SUPREME COURT REPORTS
[1962]
'96'
Mr. Umrigar, who appears for the State of Andhra
The Stai. of
Pradesh, while conceding that Charge No. 1 as it
Andhra Pradesh stands, is involved and obscure and requires to be
v.
reframed takes exception to the observation of the
K~ndimalla Snb- High Court that the charge is bad for multiplicity. It
baiah G- Another is not quite clear what the High Court meant. If it
Mudholhar J. meant that separate charges should be framed for
different offences there can be no objection; but if it
meant that all these accused cannot be tried at the
same trial then we have no doubt that it was in error.
The High Court pointed out that this is an omnibus
charge containing as many as 203 offences and that it
is in direct violation of ss. 234, 235 and 239 of the
Code of Criminal Procedure. No doubt, sub-s. (1) of
s. 234 provides that not more than three offences of
the same kind committed by an accused person within
the space of 12 months can be tried at the same trial.
But then s. 235(1) provides that if in any one series of
acts so connected together as to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one
trial for every such offence. Therefore, where the
alleged offences have been committed in the course of
the same transaction the limitation placed by s. 234(1)
cannot operate. No doubt, the offence mentioned in
charge no. 1 is alleged to have been committed not by
just one person but by all the accused and the question
is whether all these persons can be jointly tried in
respect of all these offences. To this kind of charge
s. 239 would apply. This section provides that the
following persons may be charged and tried together,
namely:
(1) persons accused of the same offence committed
in the course of the same transaction;
(2) persons accused of an offence and persons
accused of abetment or an attempt to commit such
an offence;
(3) persons accused of different offences committed
in the course of the same transaction.
Clearly, therefore, all the accused persons could be
tried together in respect of all the offences now
comprised in charge no. 1. We, however, agree with
"
•'
•
1 S.C.R. SUPREME COURT REPORTS
201
Mr. U mrigar that it would be desirable to split up
r96r
charge no. 1 suitably so that the accused persons will
The State of
not be prejudiced in answering the charges and in Andhra Pradesh
defending themselves.
v.
The learned Judge has held, following a decision of /(andimalla Suba single Judge in In re Venkataramaiah (1) that no baiah & Another
charge of conspiracy is permissible for committing
M udholkar ] .
which the conspiracy was entered into and which had
actually been committed. In that case the learned
Judge had observed as follows at p. 132:
"Where the matter has gone beyond the stage of
mere conspiracy and offences are alleged to have
been actually committed in pursuance thereof, these
two sections are wholly irrelevant. Conspiracy, it
should be borne in mind, is one form of abetment
(sees. 107 I.P.C.) and where an offence is alleged to
have been committed by more than two persons,
such of them as actually took part in the commission should be charged with the substantive offence,
while those who are alleged to have abetted it by
conspiracy should be charged with the offence of
abetment under s. 109 I.P.C. The Explanation to
s. 109 makes this quite clear.
An offence is said to
be committed in consequence of abetment, when it
is committed in pursuance of the conspiracy, and
the abettor by conspiracy in made punishable
(under s. 109) with the punishment provided for
tb e actual offence."
We are unable to accept this view. Conspiracy to
commit an offence is itself an offence and a person can
be separately charged with respect to such a conspiracy. There is no analogy between s. 120B and
s. 109 I.P.C. There may be an.element of abetment in
a conspiracy; but conspiracy is something more than
an abetment. Offences created by ss. 109 and 120B,
LP .C. are quite distinct and there is no warrant for
limiLing the prosecution to only one element of conspiracy, that is, abetment when the allegation is that
what a person did was something over and above
that. Where a number of offences are committed by
(1) A.I R. 1938 Mad. 130, 132.
.,
202
SUPREME COURT REPORTS
[1962]
r96r
several persons in pursuance of a conspiracy it is
usual to charge them with those offences as well as
The State of
• h
h
ff'
f
·
·
h
Andhra Praaesh wit
t e o ence o
conspiracy to commit t ose
v.
offences.
As an instance of this we may refer to the
Kandimalla Sub- case in S. Swaminatham v. State of Madras (1). Though
baiah & Another the point was not argued before this Court in the way
it appears to have been argued before the Madras
Mudholkar f. High Court and before the High Court of Andhra
Pradesh, this Court did not see anything wrong in the
trial of several persons accused of offences under
s. 120B and s. 420 I.P.C. We cannot, therefore,
accept the view taken by the High Court of Andhra
Pradesh that the charge of conspiracy was bad. If the
alleged offences are said to have flown out of the conspiracy the appropriate form of charge would be a
specific charge in respect of each of those offences
along with the charge of conspiracy.
Before leaving this point we would like to refer
to the decision in R. v. Dawson (') which Mr. Umrigar
very fairly brought to our notice, respondents being
ex parte. In that case Finnemore J. who delivered
the judgment of the Court observed:
"Now with regard to the first count for conspiracy ......... this court feels it is desirable to say
something. This court has more than once warned
of the dangers of conspiracy counts, especially these
long conspiracy counts, which one counsel referred
to as a mammoth conspiracy. Several reasons have
been given. First of all if there are substantive
charges which can be proved, it is in general undesirable to complicate matters and to lengthen
matters by adding a charge of conspiracy. Secondly, it can work injustice because it means that evidence, which otherwise would be inadmissible on
the substantive charges against certain people,
becomes inadmissible. Thirdly, it adds to the length
and complexity of the case so that the trial may
easily be well nigh unworkable and impose a quite
intolerable strain both on the Court and on the
.
,,
Jury ....
The learned Judges in fact quashed the conviction
(1) A.l.R. 1957 S.C. 340, 343, 344.
(2) (1960) I All. E.R. 558, 563.
r ..
•
I·
I S.C.R. SUPREME COURT REPORTS
203
for conspiracy in the case before them. We agree
r96r
that it is not desirable to charge the accused persons
f 1 .
.
The State of
with conspiracy with the ulterior object o
ettmg m Andhra Pradesh
evidence which would otherwise be inadmissible and
v.
that it is undesirable to complicate a trial by introduc- Katdimalla subing a large number of charges spread over a long baiah & Another
period. But then this is only a question of prod b 1 f
J d
h
.
,1Iudholkar ].
priety and it shoul
e e t to the u ge or t e magistrate trying the case to ad0pt the course which he
thinks to be appropriate in the facts and circumstances of the case. It cannot be said as a matter of
law that such a trial is prohibited by the Code of Criminal Procedure.
The High Court has further held that the learned
Special Judge had no jurisdiction to try the offences
under s. 120B read with ss. 466, 467 and 420 because
he was appointed a Special Judge under the Criminal
Law Amendment Act only for trying offences under
the Prevention of Corruption Act. No doubt, he was
appointed in the circumstances stated by the High
Court, and therefore he will have that jurisdiction
which he is competent to exercise under the Prevention of Corruption Act or the Criminal Law
Amendment Act. Section 6 of the former provides
that the State Government may appoint a Special
Judge to try the following offences:
(a) an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code
(Act XLV of 1860) or sub-section (2) of section 5 of
the Prevention of Corruption Act, 194 7 (II of 194 7);
(b) any conspiracy to commit or any attempt to
commit or any abetment of any of the offences
specified in clause (a).
Sub-s. (1) of s. 7 provides that notwithstanding anything contained in the Code of Criminal Procedure,
1898 or in any other law the offences specified in
sub-s. (1) of s. 6 shall be triable by special judges only.
Sub-s. (3) of s. 7 provides that when trying any
case, a special judge may also try any offences other
than an offence specified ins. 6 with which the accused
may under the Code of Criminal Procedure, 1898 be
charged at the same trial.
204
SUPREME COURT REPORTS
[1962]
Clearly, therefore, accused no. I could be tried by
The State of the Special Judge for offences under s. 120 B read
Andhra Pradesh with SS. 466, 467 and 420 I.P.C. Similarly the other
v.
accused who are said to have abetted these offences
[(andimalla Sub-
]d ]
b t ' d b th S
' 1 J d
Th
.
f
b . h & A
th
cou
a so e ne
y , e pema
u ge.
e view o
0
'
0
_"
0
" the High Court is thus erroneous and its directions
Mudholko1 .J. with respect to these offences are set aside.
The High Court has further held that the provisions
of s. 196A(2) of the Code of Criminal Procedure have
not been complied with and therefore the charges in
respect of offences under ss. 466 and 467 could not be
enquired into by the Special Judge. S. 196A(2) of the
Code of Criminal Procedure reads thus:
"No Court shall take cognizance of the offence of
criminal conspiracy punishable under section 120B
of the Indian Penal Code,
..................................................................
(2) in a case where the object of the conspiracy is
to commit any non-cognizable offence, or a cognizablA offoncA not pnnishablA with dAath, imprisonment for life or rigorous imprisonment for a term
of two years, or upwards, unless the State Government, or a Chief Presidency Magistrate or District
Magistrate empowered in this behalf by the State
Government, has, by order in writing, consented to
the initiation of the proceedings: ...... ".
Offences under ss. 466 and 467 are admittedly noncognizable and, therefore, it would seem from the
plain language of sub-s. (2) that for the offences under
s. 120 Bread with ss. 466 and 467, I.P.C. the sanction
of the Government will be necessary. Mr. Umrigar
referred us to the decision in Durgad,as Tulsiram
Sood v. State(') and said that since the object of the
conspiracy was to cheat the Government, that is, to
commit an offence under s. 420 I.P.C. and the offences
under ss. 466 and 467 were only means to that end,
the trial was not vitiated simply because no sanction
was obtained for. prosecuting the accused for offences
of criminal conspiracy to commit non-cognizable
offences under ss. 466 and 467 I.P.C. We do not think
it necessary to say anything on the point because in
(1) I.L.R. I!Jj4 Born. 554·
..
y
II S.C.R. SUPREME COURT REPORTS
205
any case the case has to go back to the Special Judge
for re-framing the charges and there is time enough
for the Government to consider whether it should
accord sanction to the prosecution of the various
accused for the non-cognizable offences alleged to have
been committed by them in pursuance of conspiracy,
assuming of course, that sanction is necessary.
In the result we allow the appeal and set aside the
order of the High Court and direct the Special Judge
to frame fresh charges and proceed with the trial.
The matter has been pending for a long time and we
direct that the trial will proceed with all expedition.
Appeal allowed.
Retrial ordered.
JAGANNATH AGARWALA
v.
STATE OF ORISSA
(J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)
Act of State-Duration of-State allowing claims to be preferred and enquired into-Act of State, if at an end-Administration
of Mayurbhanj State Order, 1949, cl. 9.
The appellant had two money claims against the Maharaja
of. Mayurbhanj State. From January r, i949, the .State merged
with the Provmce of Onssa. Clause 9 of the Admrn1stration of
Mayurbhanj State Order, i949, promulgated by the Government
of Orissa, provided f?r the iss';'ing of .a notification for calling
upon all persons having pecuniary claims against the Maharaja
to notify the same to an officer authorised in that behalf. After
issue of the notification the appellant preferred his two claims
before the Claims Officer. The Claims Officer made a report substantially accepting the claims. This report was submitted to the
Member (third), Board of Revenue. Without giving the appellant any hearing the claims were rejected on the ground that
they were barred by limitation. The appellant applied for a
review and submitted the documents 6n which he relied but
again without giving the appellant a hearing the Board of Revenue declined to review the matter. The appellant contended
The State of
A ndhra Pradesh
v.
Kandirnalla Sub~:
baiah r§.. Another
Mudholkar ].
z96z
March 8.