# December 2a Bhreekantiah RamaY.Jla Munipalli v. TheSlate of Bombay

- **Citation:** [1955] 1 S.C.R. 1177
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Criminal Appeal No. 1213 of 1953
- **Bench:** MuKHERJEA, S. R. DAs, V1vIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/december-2a-bhreekantiah-ramay-jla-munipalli-v-theslate-of-bombay-322
- **Pages:** 15

## Headnote

Criminal Procedure Code, (Act V of 1898), s. 197-Prevention of
· Cofruption Act, 1947 (II of 1947), s. 5(2)-Charge thereunder and
charge under s .. 409 of the Indian Penal Code (Act XLV of 1860Separated from each other-Sanction granted under s. 5(2) of the Prevention of Corruption Act-Whether could be extended as to cover prosecution under s. 409 of the Indian Penal Code-S. 197 of the Code
of Criminal Procedure-Scope and
construction of-Indian Penal
Code, s. 34--Essence of-Whether the person must be. physically
. present at the actual commission of the crime.
·
The three accused-Government servants-were jointly charged
with an offence punishable under s. 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with ,
having committed breach of trust in furtherance of the common intention of all under s. 409 of the Indian Penal Code read with s. 34.
Then followed a number of !!lternative charges in which each was
separately charged with having eommitted criminal breach of trust
personally under s. 409.
As a further alternative, all three were
Sri Monohar Das
Mohanta
v.
Charu Chandra
Pal and Others
Venkatarama
Ayyar J .
1954
December 2a
Bhreekantiah
RamaY.Jla
Munipalli
v.
TheSlate of
Bombay
1178
SUPREME COURT REPORTS
[1955]
jointly charged under s. 409. read with s. 109 for having abetted each
other in the commission of a criminal breach of trust under s. 409.
On objection taken to these charges, the trial for the offence under. s.
5(2) of the Prevention of Corruption Act was separated from the
trial· under s. 409 of the Indian Penal Code. The charges were reframed. One under s. 5(2) was dropped while others remained. On
27-10-1949 the Governor~General acting under s. 197 of the Code of ,-
Criminal Procedure sanctioned the prosecution of the first accused
\-"-
(appellant No. I) for offences under ss. 120-B, 409, 109 for having ,
conspired with the other two to commit criminal breach of trust in
respect of properties belonging to Government and for having thus
abetted the commission of that offence and also for
having con1mitted it. Similar sanction was not given against the other two accused and was limited only to the Rrst accused. On the same date
sanction was given for the prosecution of the first accused under s.
5(2) of the Prevention of Corruption Act, 1947 and a similar sanctibn was given against the second accused.
The question ·was whether this sanction. against the second accused could be extended to
cover his prosecution under s. 409 and whether his trial was valid.
Held, (answering the question in the n~gative) that under s.
197 of the Code of Criminal Procedure the sanctioning authority
was the Governor~General. Under the Prevention of Corruption Act,
1947 the sanctioning authority was the Central Government, Either
one, or two, Government authorities were given the right and invested with the duty of making an election.
If two Government
authorities are given the right to' choose and neither can encroach
upon the preserve of the
other, then the
Governor-General
has
not sanctioned the present prosecution
agains.t
the second accused
(appellant No. 2) and no -other authority ·has the power to do so.
Therefore the sanction given to prosecute under s. 5(2) of Act II of
1947, could not be used to cover the present trial,
bec~use it was
given by an authority not competent to give it.
If, on the other hand, the twO authorities are really one, then
.the election has been made clearly. The sanction under s.
5(2) of
the Prevention of Corruption Act, 1947 as amended by Act LIX of
1952 and Act LXVI of 1952 is to proceed in special courts with a
special procedure so the present ,tf.ial against the second accused was
incompetent.
It is well-settled tha:t a <lefecl ·of lhis nalure is falal' and cannot
be cured when s. 197 applies and, as it did, sanction was necessary
so the trial was vitiated from the start. The proceedings were accordingly quashed.
If s. 197 of the ·Code of Criminal Procedure is

## Text

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•
S.C.R.
SUPREME COURT REPORTS
1177
have also held that there is no proof that
the defendants claimed to hold under a rent-free grant to
the
. knowledge of
the plaintiff prior to 1931, and that
what all has been established
by
them is
non-payment of
rent
for a
considerable
but unascertained
period of time.
That,
in itself, is
not sufficient
to
m,ake their possession adverse.
It was only in
1931
that the defendants
could be
said clearly
to
have
asserted a hostile title,
and the suits are within time
. from that
date.
There is no substance
in this plea,
which is accordingly rejected .
In the result, the appeals are allowed,
the decrees
of the District
Court and of the High
Court are set
aside, and those of the District Munsif restored with
costs in this Court and in the two Courts below.
The
decrees of the
District Munsif will stand as regards
. costs in that Court.
Appeals allowed.
SHREEKANTIAH RAMA YYA MUNIP ALLI
v.
THE STATE OF BOMBAY
(With Connected Appeal)
[MuKHERJEA, S. R. DAs and V1vIAN BosE, JJ.]
Criminal Procedure Code, (Act V of 1898), s. 197-Prevention of
· Cofruption Act, 1947 (II of 1947), s. 5(2)-Charge thereunder and
charge under s .. 409 of the Indian Penal Code (Act XLV of 1860Separated from each other-Sanction granted under s. 5(2) of the Prevention of Corruption Act-Whether could be extended as to cover prosecution under s. 409 of the Indian Penal Code-S. 197 of the Code
of Criminal Procedure-Scope and
construction of-Indian Penal
Code, s. 34--Essence of-Whether the person must be. physically
. present at the actual commission of the crime.
·
The three accused-Government servants-were jointly charged
with an offence punishable under s. 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with ,
having committed breach of trust in furtherance of the common intention of all under s. 409 of the Indian Penal Code read with s. 34.
Then followed a number of !!lternative charges in which each was
separately charged with having eommitted criminal breach of trust
personally under s. 409.
As a further alternative, all three were
Sri Monohar Das
Mohanta
v.
Charu Chandra
Pal and Others
Venkatarama
Ayyar J .
1954
December 2a
Bhreekantiah
RamaY.Jla
Munipalli
v.
TheSlate of
Bombay
1178
SUPREME COURT REPORTS
[1955]
jointly charged under s. 409. read with s. 109 for having abetted each
other in the commission of a criminal breach of trust under s. 409.
On objection taken to these charges, the trial for the offence under. s.
5(2) of the Prevention of Corruption Act was separated from the
trial· under s. 409 of the Indian Penal Code. The charges were reframed. One under s. 5(2) was dropped while others remained. On
27-10-1949 the Governor~General acting under s. 197 of the Code of ,-
Criminal Procedure sanctioned the prosecution of the first accused
\-"-
(appellant No. I) for offences under ss. 120-B, 409, 109 for having ,
conspired with the other two to commit criminal breach of trust in
respect of properties belonging to Government and for having thus
abetted the commission of that offence and also for
having con1mitted it. Similar sanction was not given against the other two accused and was limited only to the Rrst accused. On the same date
sanction was given for the prosecution of the first accused under s.
5(2) of the Prevention of Corruption Act, 1947 and a similar sanctibn was given against the second accused.
The question ·was whether this sanction. against the second accused could be extended to
cover his prosecution under s. 409 and whether his trial was valid.
Held, (answering the question in the n~gative) that under s.
197 of the Code of Criminal Procedure the sanctioning authority
was the Governor~General. Under the Prevention of Corruption Act,
1947 the sanctioning authority was the Central Government, Either
one, or two, Government authorities were given the right and invested with the duty of making an election.
If two Government
authorities are given the right to' choose and neither can encroach
upon the preserve of the
other, then the
Governor-General
has
not sanctioned the present prosecution
agains.t
the second accused
(appellant No. 2) and no -other authority ·has the power to do so.
Therefore the sanction given to prosecute under s. 5(2) of Act II of
1947, could not be used to cover the present trial,
bec~use it was
given by an authority not competent to give it.
If, on the other hand, the twO authorities are really one, then
.the election has been made clearly. The sanction under s.
5(2) of
the Prevention of Corruption Act, 1947 as amended by Act LIX of
1952 and Act LXVI of 1952 is to proceed in special courts with a
special procedure so the present ,tf.ial against the second accused was
incompetent.
It is well-settled tha:t a <lefecl ·of lhis nalure is falal' and cannot
be cured when s. 197 applies and, as it did, sanction was necessary
so the trial was vitiated from the start. The proceedings were accordingly quashed.
If s. 197 of the ·Code of Criminal Procedure is construed too
narrowly it can never Pe
applied for it .is no part of an official's
duty to commit an offence and never can be.
But it is not the duty
of an official which has .to be examined so inuch as his act, because
an official act can be performed in the discharge of official duty as
.well as in
dereliction of it.
The section
has
content and its
·-language must be given meaning.
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S.C.R.
SUPREME COURT REPORTS
1179
In the case of the first accused there was misdirection in the
-charge to the Jury under s. 34.
The essence of the misdirection
consisted in the Sessions Judge's 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 s. 34 provided it is proved that the offence was
11 committed in furtherance of the common intention. This is wrong
because the essence of the section is that the person must be physically present at the actual commission of. the crime .
The misdirection is plain and goes to the root of the case because the jury returned a verdict of guilty under s. 409 read with
s. 34 alone and not under s. 409 read with s. 109, I.P.C .
Held, that
in cases
which raise
questions of substance and
importance the High Courts should not pass summary orders of
rejection without giving some indication of their views on the points
raised before them.
Mushtak Hussein v. The State of Bombay ([1953] S.C.R. 809),
The State v. Gurucharan Singh (A.LR. [19521 Punjab 89), Gokul.
chand Dwarkadas v. The King (A.LR. [1948] P.C. 82), Hori Ram
Singh v. The Crown ([1939] F.C.R. 159), Madan Mohan v. The State
of Uttar Pradesh (A.LR. [1954] S.C. 637), Lieutenant Hector Thoma.<
Huntley v. The King-Emperor ([1944] F.C.R. 262), and
Barendra
Kumar Ghosh v. The King-Emperor ([1924] L.R. 52 I.A. 40), referred to.
'r
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal Ap-
)
•
peals Nos. 89 and 90 of 1954.
Appeals by Special Leave from the
Judgment and
Order dated the 23rd
November 1953 of the
High
Court of Judicature at
Bombay in
Criminal
Appeal
No. 1213 of 1953, and ·from the
Judgment and Order
dated the 25th
August
1953 of the
High Court of
Judicature at
Bombay in
Criminal
Appeal
No. 1121
of 1953 arising out of the judgment and decree dated
the 6th August 1953 of the Court of Sessions
Case No.
36 of 1952.
S. Narayanaiah and Dr. C. V. L. Narayan, for the
appellant in Criminal Appeal No. 89 of 1954.
C. Sanjeevarow Nayadu and R. Ganapathy Ayyar,
for the appellant in Criminal Appeal No. 90 of 1954.
M. C. Setalvad, Attorney-General of India ( G. N.
Joshi and Porus A. Mehta, with him)
for
the respondent.
1954
Shreekanti4h
Ramayya
Munipalli
v.
The State of
Bombay
: 1954
Shreekantiah
Ramayya
Munipalli
v.
The State of
Bombay
1180
SUPREME COURT REPORTS
[1955]
1954. December 22.
The Judgment of the Court
was delivered by
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 sentenced 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.
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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
Government and covers an area of some 150 acres.
Government 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 conspiracy 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
punishable under section 5(2) of the
Prevention of
Corruption 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
committed criminal breach of trust personally under
section 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 section 409.
Objection was at once taken to these charges
an_d
the one which concerns us now
was couched in the
following terms:
· 1954
· 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 secti01i 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 Corruption Att may not be tried together in one trial".
The Assistant Public Prosecutor said he
had no objection 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 section 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
discharge 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 concerned 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
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: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 question 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
amending 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 followed.
Therefore,
the position which
these various
Acts created was this.
First, a choice was
conferred
.on some authority to choose whether any
given ·accused 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.
1954
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
.individual judgment" had
by
that time
been
deleted .
Under the
Prevention of
Corruption
Act the sanctioning 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 according 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
procedure 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
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S.C.R.
SUPREME COURT REPORTS
1185
· choose arid neither can encroach
upon the preserve of
the other, then the
Governor-General ·has · not ·sanctioned - 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 unequivocally.
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 Gokulchand 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 AttorneyGeneral 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.
• -
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•(5)"[i9391 F.C.R.:t59;186; -
-
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Shreekantiah
. Ramay;•a
Munipalli
v,
The State of
Bombay
Boie].
·1954
·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
accused as a ·public servant is
involved
both
m
the
charge under section 409 and in the charge under section 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 complained 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 explains 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 attempting 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
lis usually composed of several
elements and, as a rule,
a whole series of acts must be proved before it can be
..
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•
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 "inhis .capacity as a public
servant"; third, that
there was
a
"disposal";
and fourth, that
the disposal
was
"dishonest".
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.
Therefore, the act complained of, namely the disposal,
could
not have been done in any other way. If it was
innocent, 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:
1954
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 illustrations 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 section 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 prelinunary 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 occurrence
coupled
with
actual
participation
which, of
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S.C.R.
SUPREME COURT REPORTS1189;
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 section 34".
At page 55 he says about section 34 that-
"participation and joint action in the actual commission 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].
1954
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 "1vnot.
·
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 unsafe to convict in a case like the present in the
.absence
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
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< ;
)
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:nisdirection
and
non-direction. We tl).erefore discharge
(nqt acquit) both the appellants leaving it to Government ~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-iam 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