# K. SATW ANT SINGH v. THE STATE OF PUNJAB

- **Citation:** [1960] 2 S.C.R. 89
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, Jafer Imam, J. L. Kapur, K. N. W Anchoo, K. 0. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-satw-ant-singh-v-the-state-of-punjab-1799
- **Pages:** 29

## Headnote

Criminal Trial-J oinder of charges and persons in a single trial
-Person charged with three ojf ences of cheating tried jointly with
abettor-Legality-Place of trial-Sanction to prosecute public
servant, requirement of-Minimum fine prescribed by s·ubsequent
Ordinance, if violates constitutional protection-Code of Criminal
Procedure (Act V of I898), ss. I79. I8o, I97• 234, 239(b)-Indian
Penal Code (Act X LV of I86o), s. 420-Criminal Law Amendment
l Ordinance, I943 (XXIX of I94J), as amended by the Criminal Law
• (I943 Amendment) Amending Ordinance, I9.!J.5 (XII of I945), s. IO
-Constitution of India, Art. 20(I).
The appellant, who had been a contractor in Bnrma, in
response to an advertisement issued in August, 1942, by the
evacuee Government of Burma, then functioning at Simla, invit_ing claims from contractors for works of construction and repairs
executed by them, submitted claims aggregating to several lacs of
rupees. The Government of Burma sent these claims. for verification to Major Henderson at Jhansi in March and May, 1943· as
he was the officer who had knowledge of these matters. He
certified many of these claims to be correct and on his certification
the Government of Burma sanctioned the claims and directed the
Controller of Military ciaims at Kolhapur to pay the amounts.
On the request of the appellant cheques drawn on the Imperial
Bank of India at Lahore were posted to him from Kolhapur and
they were encashed at Lahore. The largeness of such claims
aroused the suspicions of the Government and it was discovered
that the claims made by the appellant were false.
He was tried
in several trials under s. 420 of the Indian Penal Code along with
Henderson, charged under s. 420/109 of the Code for abetment of
those offences, before a special Tribunal at Lahore, functioning
ri
I959
Union of India
v.
Amar Singh
Subba Rao].
z959
October 28
90
SUPREME COURT REPORTS [1960(2)]
r959
under Or<linance No. XXIX of 1943, as amended by ordinance
.
No. XII of rg45
After the partition of India, the trials by the
SatUJant Singh
Special Tribunal took place at. Simla. The aprellant \vas convicv.
ted at these trials and sentenced to imprisonment ranging fro'rn
The State of Punjab one year to three years, and payment of fines of variou8 amounts.
The Tribunal div_ided the fines into 'ordinary' and 'compulsory',
the lat1er by virtue of s IO of the Ordinance, \Vhich prescribed a
minimum fine equal to the amount procurecl by the offence. In
default of payment of the 'ordinary' fines it directed the appellant to undergo further imprisonment for ce·rtain periods, but
there was no such direction with res1·ect to the 'compulsory' fines.
The High Court, on appeal, affirme<l the convictions but varied
the sentences by reducing the term of imprisonment and setting
aside the 'compulsory' fines.
The appellant as also the State of
Punjab appealed to this Court. It was conten<led on behalf of
the appellant that (r) the offeoces having been committed at
Kolhapur, then outside British India, the trial at Simla, in the
absence of any certificate or sanction given under s. i88 of the
Code of Criminal Procedure, was illegal; (2) the joint trial of the
appellant and Henderson at Simla was also illegal: (3) ss. 234(1)
and 239(b) of the Code could not be combined to try a person
charged with three offences of cheating with another charged
with abetment in respect thereof in a single trial and (4) sanction
under s. 197 of the Code was necessary for the prosecution of
Henderson and the absence of such sanction vitiated the joint
trial. The contention of the State in the appeals preferred by it
was that the imposition of the 'compulsory' fines by the Tribunal
was perfectly valid in law ancl the High Court was in error in
setting aside the same.
Held, that before the provisions of s. 188 of the Code of
Criminal Procedure could apply to a case. it \Vas necessary to
establish that the crime was committed outside British India. In
the instant case the misrepresentation b

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S.C.R.
SUPHEME COURT REPORTS
89
suit was well within time. In this view it is not
necessary to express our opinion on the question
whether there was a subsequent acknowledgment of
the appAllant's liability within the meaning of art. 19
of the Indian Limitation Act.
In the result, the appeal fails and.is dismissed with
costs.
Appeal dismissed.
K. SATW ANT SINGH
v.
THE STATE OF PUNJAB
(and connected petition)
(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR,
K. N. W ANCHOO and K. 0. DAS GUPTA, JJ.)
Criminal Trial-J oinder of charges and persons in a single trial
-Person charged with three ojf ences of cheating tried jointly with
abettor-Legality-Place of trial-Sanction to prosecute public
servant, requirement of-Minimum fine prescribed by s·ubsequent
Ordinance, if violates constitutional protection-Code of Criminal
Procedure (Act V of I898), ss. I79. I8o, I97• 234, 239(b)-Indian
Penal Code (Act X LV of I86o), s. 420-Criminal Law Amendment
l Ordinance, I943 (XXIX of I94J), as amended by the Criminal Law
• (I943 Amendment) Amending Ordinance, I9.!J.5 (XII of I945), s. IO
-Constitution of India, Art. 20(I).
The appellant, who had been a contractor in Bnrma, in
response to an advertisement issued in August, 1942, by the
evacuee Government of Burma, then functioning at Simla, invit_ing claims from contractors for works of construction and repairs
executed by them, submitted claims aggregating to several lacs of
rupees. The Government of Burma sent these claims. for verification to Major Henderson at Jhansi in March and May, 1943· as
he was the officer who had knowledge of these matters. He
certified many of these claims to be correct and on his certification
the Government of Burma sanctioned the claims and directed the
Controller of Military ciaims at Kolhapur to pay the amounts.
On the request of the appellant cheques drawn on the Imperial
Bank of India at Lahore were posted to him from Kolhapur and
they were encashed at Lahore. The largeness of such claims
aroused the suspicions of the Government and it was discovered
that the claims made by the appellant were false.
He was tried
in several trials under s. 420 of the Indian Penal Code along with
Henderson, charged under s. 420/109 of the Code for abetment of
those offences, before a special Tribunal at Lahore, functioning
ri
I959
Union of India
v.
Amar Singh
Subba Rao].
z959
October 28
90
SUPREME COURT REPORTS [1960(2)]
r959
under Or<linance No. XXIX of 1943, as amended by ordinance
.
No. XII of rg45
After the partition of India, the trials by the
SatUJant Singh
Special Tribunal took place at. Simla. The aprellant \vas convicv.
ted at these trials and sentenced to imprisonment ranging fro'rn
The State of Punjab one year to three years, and payment of fines of variou8 amounts.
The Tribunal div_ided the fines into 'ordinary' and 'compulsory',
the lat1er by virtue of s IO of the Ordinance, \Vhich prescribed a
minimum fine equal to the amount procurecl by the offence. In
default of payment of the 'ordinary' fines it directed the appellant to undergo further imprisonment for ce·rtain periods, but
there was no such direction with res1·ect to the 'compulsory' fines.
The High Court, on appeal, affirme<l the convictions but varied
the sentences by reducing the term of imprisonment and setting
aside the 'compulsory' fines.
The appellant as also the State of
Punjab appealed to this Court. It was conten<led on behalf of
the appellant that (r) the offeoces having been committed at
Kolhapur, then outside British India, the trial at Simla, in the
absence of any certificate or sanction given under s. i88 of the
Code of Criminal Procedure, was illegal; (2) the joint trial of the
appellant and Henderson at Simla was also illegal: (3) ss. 234(1)
and 239(b) of the Code could not be combined to try a person
charged with three offences of cheating with another charged
with abetment in respect thereof in a single trial and (4) sanction
under s. 197 of the Code was necessary for the prosecution of
Henderson and the absence of such sanction vitiated the joint
trial. The contention of the State in the appeals preferred by it
was that the imposition of the 'compulsory' fines by the Tribunal
was perfectly valid in law ancl the High Court was in error in
setting aside the same.
Held, that before the provisions of s. 188 of the Code of
Criminal Procedure could apply to a case. it \Vas necessary to
establish that the crime was committed outside British India. In
the instant case the misrepresentation by the appellant, the false
certification by Henderson and the resulting payment having been
made respectively at Simla. Jhansi and Lahore, then in British
India, no part of the offence could be Sflid to have taken place
outside British India. The contention that the posting of the
cheques at Kolhapur was tantamount to delivery of them to the
appellant at Kolhapur, the Post Office being the agent of the
appellant, ¥.'aS wholly misconceived in the facts and circumstances
of the case.
MoreQver, what might be a relevant consideration
as to the place of payment for the purpose of the Income-tax Act
would not necessarily be relevant fur the purposes of a criminal
case.
The Commissioner of Income~tax, Bombay South, Bombay v.
Messrs. Ogale Glass Works Ltd., Ogale Wadi, [1955] r S.CR. 185,
held inapplicale.
Thr- (ommissioner of Incomr-tax, Bihar & Orissa v. Messrs.
Pain y & Co. [r959] 36 I.T.R. 488, referred to.
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S.C.R.
SUPREME COURT REPORTS
91
The words" an offence" in s. 239(b) of the Code which is
r959
singular, must, by virtue of s. 13 of the General Clauses Act,
1879, include the plural and, therefore, a person accused of
$atwant Singh
several offences of the same kind can be tried in a single trial
v.
with another accused of abetment thereof. The concluding words The State of Punjab
of s. 239 of the Code obviously. mean that, in framing charges
against each of fhe several persons mentioned in its different
clauses, not only the provisions relating to the form of charges
but also those in respect of joinder of charges should apply.
Consequently, the joint trial of the appellant with tbe abettor on
the charges as framed did not vitiate the trial
The pirovisions. of ss. 179 and 180 of the Code are wide
enough to enable either the court within whose territorial jurisdiction anything was done, or the court where the consequences
ensued, to take cognisance of the matter. Under s. 179 the
appellant could be tried either at Lahore or Simla and. under
s. 180 Henderson could be tried at either <lf the two places.
There was, therefore, no illegality in trying the appellant and
Henderson together at Simla.
Section 420 of the Indian Penal Coc;le, read with s. 63 of the
Code, prescribes a fine that is unlimited. It was not, therefore,
correct to contend thats. IO of the Ordinance, in prescribing the
minimum fine, imposed a penalty that was greater than what
could be inflicted under the former so as to contravene Art. 20(1)
of the Cons ti tu tion.
As s. IO of the Ordinance prescribed a minimum fine, no
question as to its excessive character could arise and the--order of
the High Court setting aside the compulsory fines must, therefore,
be set aside and the orders of the Special Tribunal restored.
Rao Shiv Bahadur Singh and Another v. The State of Vindhya
Pradesh, [1953] S.C.R. n89 and Kedar Nath Bajoria v. The State
of West Bengal, [1954] S.C.R. 30, explained and distinguished.
Per Sinha, CJ., Imam, Wanchoo and Das Gupta, JJ.-
Offences such as bribery and cheating or abetment thereof cannot
by their very nature be. regarded as having been coinmitted by
public servants while acting or purporting to act in the discharge
of their official duties. Such offences can have no. reasonable
connection with the performance. of their duties as such; no
sanction, therefore, is necessary under s. 197 of the Code of
Criminal Procedure for their prosecution.
Amrik Singh v. The State of P EPSU, [1955]
l S.C.R. 1302
and Matajog Dobey v. H. C. Bhari, [1955] 2 S.C.R. 925, referred to.
Per Kapur, J.-In order that the protection afforded by
s. 197 of the Code of Criminal Procedure might be available to
Henderson, it was not enough to show that he was a Major in the
Army but it must also be shown that he was an officer not
removable from office except with the sanction of the Central
Government and that in certifying the appellant's claims, which
was the crux of the offence charged against him he was acting or
purporting to act in the discharge of his official duty.
92
SUPRE:i\1E COURT REPORTS [1960 (2)]
x959
The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether the
'
Satwant Singh
act complained of \Vas directly connected with his official duties
v.
or it was done in the discharge of his official duties or it was so
The State of Punjab integrally connected with or attached to his office as to be
inseparable from it.
.
Gill v. The King, 75 I.A. 41; Albert West Meads v. The King,
75 I.A. 815, Phenindra Chandra Neogy v. The King, 76 I.A. IO,
~ '
Jniam ].
Hori Ram Singh v. The Crown, [1939] F.C.R. 159, Amrik Singh v.
The State of PEPSU, [1955] l S.C.R. 1302, Ronald Woad Mathams
c
v. State of West Bengal, [1955] l S.C.R. 316 and Skree Kanthiah
Ramayya M11nipalli v. The State of Bombay, [1955] I. S.C.R. rr77,
referred to.
As there \vas no evidence, in the instant case, to show that
Henderson was an officer as contemplated by s. 197 of the Code
and th"at in verif)'ing the appellant's claims he was discharging
his official duty, s. 197 could not apply.
CRIMINAL
APPELLATE
JuRISDIC'fION:
Criminal
Appeals Nos. 100 to 105 and 124 to 129 of 1954.
Appeals from the judgment and order dated
August 2, 1954, of the Punjab High Court in Criminal
Appeals Nos. 112 of 49, 333, 382, 383 and 410 of 1950
and 241 of 1951, arising out of the judgment and erder
dated June 26, 1950, of the Punjab Special Tribunal.
WITH
Petition No. 31 of 1952.
Petition under Article 32 of the Constitution of
India for enforcement of :Fundamental rights.
Harnam Singh, Hardyal Hardy and P. 0. Aggarwala,
for the appellant in Cr. As. Nos. 100 to 105 of 1954,
Petition .No. 31 of 52 and H.espondent in Cr. As. Nos.
124 to l;W of 1964.
0. J(. Daphtary, Solicitor-General of India, Kartar
Singh Chawla, 'l.'. M. Sen and D. Gupta, for the appellant in Cr. As. Nos. 100 to 105 of 1954 and Petition
No. ;n of 1~52 and Appellant in Cr. As. Nos. 124 to
129 of 1954.
1959. October 28.
The judgment of Sinha, C.J.,
Imam, W anchoo and Das Gupta, J J ., was delivered by
Imam, J. Kapur, J ., delivered a separate judgment.
IMAM J.-These appeals are on a certificate granted
by the Punjab High Court and they have been heard
.
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S.C.R.
SUPREME COURT REPORTS
q3
together as they arise out of a single judgment of the
· z9s9
High Court. In Criminal Appeals Nos. 100 to 105 of
Satwant Singh
1954 Satwant Singh is the appellant and in Criminal
v. ·
Appeals Nos. 124 to 129of1954 the State of Punjab is The State of Punjab
the appellant.
Imam].
Although in these appeals only questions ·of law
have been urged it is necessary to set out briefly some
of the facts which led to the prosecution a.nd conviction
of Satwant Singh. ·As a result of the Japanese invasion
of Burma in 1942 the Government of Burma and the
Allied forces stationed there were compelled to leave
that country. In connection with the evacuation from
Burma. and the defence of that country, the Government of Burma and the army had to execute certain
works such as the construction of roads, repairs and
construction of bridges, strengthening and repairing of
old traclts and converting railway lines into motor
roads. Some of these works were executed by the
army and some were entrusted to contractors.
After evacuation of Burma its Government was
located at Simla. In August, 1942, the Government of
Burma advertised inviting claims from contractors
who had executed works or had supplied materials in
Burma and had not yet been paid. Satwant Singh had
worked as a contra·ctor in Burma. He at first submitted a claim for a sum of a little over Rs. 18,000.
Later on, he put in further claims the total amount of
which ran into several lakhs of rupees. These claims
were sent by the Government of Burma to Major
Henderson at Jhansi in March and May, 1943, for
verification as he was the officer who had knowledge'
of these matters. This officer certified many of these
claims to be correct and sent the papers back to Simla.
He did not pass one claim because it was within the
knowledge of another officer Mr. Nasee. On the certification of the claims by Henderson, the .Finance
Department of the Government of Burma sanctioned
the same and the Controller of the Military Claims at
Kolhapur was directed to pay the amounts sanctioned.
On the request of Satwant Singh cheques drawn on
the Imperial Bank of India at Lahore were posted
to him from Kolhapur and these cheques .were
I959 °
94
SUPREME COURT REPORTS [1960(2)]
encashed at Lahore. In all Sn,twant Singh was paid
Rs. 7,44!865-12-0.
Satwant Singh
v.
Subsequently, suspicions of the Government of
Th• State of Punjab Burma were aroused concerning the many cla.ims
Imam].
made on it and it was discovered that many of them,
including some of those of Satwant Singh, were false.
A police investigation followed which revealed that a
large number of claims made by various persons including Satwant Singh in respect of works done for the
benefit of the army were false. Satwant Singh was
arrested on the 12th of April, 1944, at Ambala and was
taken to Lahore. He had also submitted a claim in
the name of his wife Surjit who was also arrested.
Henderson was arrested at Imphn,l and brought to
Lahore for interrogation.
According to the prosecution, Satwant Singh had
committed the offence of cheating punishn,ble under
s. 420, Indin,n Penal Code and Henderson hn,d abetted
him in the commission of that offence by falsely certifying Sn,twant Singh's cln,ims to be true, knowing that
they were false and thereby had committed an offence
punishable under s. 420/109, Indian Penal Code.
Satwant Singh having expressed a desire to make a
confession, his confession was recorded by a First Class
Magistrate on the 9th of :Nfay, 1944.
0
There being ma.ny cases of acceptance of bribe and
criminn,l breach of trust by public servants and cheating of Government by certn,in persons and cases similar
to that of Satwant Singh, Ordinance No. XXIX of
·1943, hereinafter referred to as the Ordinance, for trial
of such cases was promulgated by the GovernorGeneral of India in 1943. Subsequently, this Ordinance
was amended by Ordinance XII of 1945.
By vir'tue
of a notification issued under the Ordinance as amended
the case of Satwant Singh· was allotted to the Third
Special Tribunal at Lahore for trial with Henderson
as his co-accused. After the partition, the trial by the
Special Tribunal took place at Simla.
·
Henderson had absconded to Engln,nd and extradition proceedings had to be taken against him under
the Fugitive Offender's Act of 1881. He was brunght
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S.C.R.
, SUPREME COURT REPORTS
95
before the Special Tribunal in December, 1949. In the
I959
meantime, Satwant' Singh's case was sep::trated and
Satwant Singh
the trial against him alone continued. On He:Aderson's
v.
return, the trial once again became a joint trial. The State of Punjab
Henderson applied for examination of certain witnesses
on commission in England. His prayer was granted.
Tmam J.
Satwant Singh fearing that the trial of the cases
against him would be delayed, requested that his rases
be separated from the cases against Henderson. This
prayer was allowed and his trials proceeded against
him as the sole accused except in the trial of Cases
Nos. 54, 55 and 56 in which Henderson was a coaccused with him.
,
•The Special Tribunal imposed sentences of imprisonment ranging from one year to three and a half years
in the several trials. In addition, it imposed fines of
various amounts. It divided the fines into "ordinary"
and "compulsory", the latter by virtue of s. 10 of the
Orftinance. In default of payment of the "ordinary "
fines it directed the· appellant to undergo further
imprisonment for certain periods. There was no such
direction with respect to the "compulsory" fines.
The High Court reduced the sentence of imprisonment
to two years in all the trials where such sentence was
in excess of that period. The sentences of imprisonment in all the trials were to run concurrently. The
High Court maintained the sentence of " ordinary"
fines imposed by the Special Tribunal but set aside the
. sentence of " compulsory" fines.
The State had filed a petition before the High Court
for the enhancement of the sentences of fine passed
against Satwant Singh which was dismissed on the,
ground that the "compulsory~, fines imposed were
invalid in view of the decisions of this Court in the
case of Rao Shiv Bahadur Singh and Another v. The
State of Vindhya Pradesh (1) and the case of Kedar
Nath Bajoria v. The State of West Bengal (2).
In the
opinion of the High Court, enhancement of sentences
of fine would be a method by which the provisions of
Art. 20 of the Constitution would be circumvented.
(I) (1953] 8.C.R. u89
96
SUPREME COURT REPORTS [1960(2)]
r950
Satwant Singh has appealed against his convic-
.
tion and sentence as ordered by the High Court. The
Satwanl Singh State of.Punjab has also appealed agai11st the decision
The 510,;~f Punjab of the High Court that the "compulsory " fines imposed were illegal. The State also has made a prayer
Imam J.
that the "ordinary" fines imposed upon Satwant
Singh may be enhanced.
On behalf of the appellant his conviction was cha!.
lenged on several points of law.
Firstly, it was urged
that the provisions of s. 188 of the Code of Criminal
Procedure had not been complied with. The charge
framed against the appellant stated that he had committed the offence of cheating at Simlll. and Kolhapur.
Kolhapur was a place outside British India at tb.e
relevant time. In the present case there was neither
a certificate of the Political Agent nor a sanction of
the Provincial Government as required under s. 188
of the Code of Criminal
Procedure. The facts
established that the offence of cheating was committed at Kolhapur and therefore it could not be enquired
into in British India without such a certificate or such
sanction. The trial of the appellant therefore was
without jurisdiction. Secondly, it was urged that the
appellant committed the offence at Kolhapur and
Henderson at Jhansi. They could not be tried together
in a single trial by the Special Tribunal at Simla
as neither s. 179 nor s. 180 of the Code of Criminal
Procedure -applied to the facts of the case and in view
of the provisions of s. 188 of the Code. Thirdly, it
was submitted that ss. 233 to 239 of the Code of
Criminal Procedure deal with joinder of charges and
joinder of persons in a trial. Sections 234 and 239 of the
Code could not be combined to try the appellant and
Henderson in a single trial for 3 offences of cheating by
the former and 3 offences of abetment thereof by the
latter. Section 239 of the Code was a self-contained
provision and had to be read without bringing into
aid the provisions of s. 234. ]fourthly, it was pointed
out that as no sanction under s. 197 of the Code by
the proper authority had been given for the prosecution of Henderson, he could not be tried without
such a sanction. Joint trial of Henderson and the
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SUPREME COURT REPORTS
97
appellant without such a sanction vitiated the trial.
z959
Fifthly, it was submitted that as Burma was not a
Satwant Singh
Dominion of His Majesty's Government in 1943 the
v.
Ordinance did not apply.
The State of Punja~
In the course of the argument the fifth submission
was abandoned and, we think, rightly.
It would be convenient to deal together with the
first and the fourth submissions regarding the noncompliance with the provisions of ss. 188 and 197 of
the Code of Criminal Procedure. Before the provisions of s. 188 can apply it must be established that
the offence for which the appellant was charged was
committed outside British India. The appellant was
charged with the offence of cheating. He had filed
certain claims before the Government of Burma at
Simla. Those claims were certified as true by Henderson at Jhansi. The claims of the appellant were
found to be untrue. In fact, he was not entitled to
any payment in respect of these claims., The misrepresentation by Satwant Singh was at Simla and the
false certification of the claims as true by Henderson
was at Jhansi. Simla and Jhansi were places ill
British India. As the result of the misrepresentation
by the appellant and the false certification by Henderson the Government of Burma was induced_ thereby
to make the payment of a large sum of money to the
appellant at Lahore. The payment at Lahore to the
appellant was made at his own request by cheques on
the Imperial Bank .of India at its La)1ore Branch.
Lahore was also a place at the relevant time in British
India. It is true that in the charge framed Kolhapur
was mentioned as one of the places where the cheating
had taken place. In our opinion, it was an error in
the charge, as framed, to have mentioned that any
offence of cheating. took place at Kolhapur .. That
error in the charge, however, was a mere irregularity
on a misunderstanding of the facts which could not
vitiate the trial. . It was, however, urged that as the
cheques in favour of the appellant were posted at
Kolhapur, in law, the payment to the appellant had
been made in Kolhapur and delivery of property,
namely, the cheques, which must be regarded as
I;J
Imam].
98
SUPREME COURT REPOR'l'S [1960(2)]
'959
valuable security, was made at Kolhapur. The offence
Satwant Singh of cheating, therefore, was committed at Kolhapur
v.
and neither at Simla nor at Lahore. In our opinion,
The State of Punjab this submission is misconceived. The posting of the
cheques at Kolhapur cannot be regarded as delivery
Imam J.
of the cheques to the appellant at Kolhapur because
the Post Office at that place could not be treated, in
the circumstances of the present case, as the agent of
the appellant to whom the delivery of the cheques had
been made. In fact, they were not delivered to the
appellant at Kolhapur but were delivered to him at
Lahore. As regards the place of payment it was
urged that when the cheques were i~sued and posted
at Kolhapur, the payment to the appellant must be
regarded as having been made at Kolhapur. Reliance
was placed on The Commissioner of Income Tax,
Bombay S.outh, Bombay v. Messrs. Ogale Glass Works
Ltd., Ogale Wadi (1 ).
That case was considered by
this Court in the case of The Commissioner of Income
Tax, Bihar & Orissa v. lliessrs. Patney · & Co. (')
decided on the 5th of May, .1959, and it was held that
the rule in the Ogale Glass W arks' case (1) was inapplicable to the facts of the case. In the latter case it was
found by this Court that : "'Vhatever may be the
position when there is an express or implied request
for the cheque for the amount being sent by post or
when it can be inferred from the course of conduct of
the parties, the appellant in this case expressly
required the amount of the commission to be paid at
Secunderabad and the rule of 'Ogale Glass Works'
case(') would be inapplicable." In the present case
an inquiry was made from the appellant how he
would like the payment to be made and he replied
that cheques payable at the Imperi;>l Bank of India,
Lahore Branch, should be sent to him. Accordingly,
cheques on the Imperial Bank of India, Lahore
Branch, were sent to the appellant by post in Lahore
and the appellant encashed them there. In these
circumstances, the rule in Ogale Glass W arks' case (1) is
'inapplicable and it must be held that the payment was
(1) [1955] I S.C.R. 185.
(2) [1959] 36 l.T.R. 488,
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SUPREME COURT REPORTS
99
made to the appellant at Lahore .and not at Kolhapur
z959
where th_ e cheques had been posted. Furthermore, 5
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atwant
ing"
what may be relevant for cons1derat10n as to the pace
v.
of payment for the purpose of the I;ncome Tax Act The £tate of Punjab
may not necessarily be relevant for the purposes of a
criminal case in which the Courts have to ascertain
Imam J.
where the offence of cheating was committed. It
seems to us, on the facts established in this case, that
no part of the offence of cheating was committed by
the appellant outside British India.
His false representation to ·the Government .of Burma that money
was due to him was at a place in British India which
induced that Government to order payment of h_is
claims. In fact, he was paid at Lahore at his own
request by means of cheques on the Branch of the
Imperial Bank of India at Lahore. The delivery of
the property of the Government of Burma, namely,
the money, was made at Lahore, a place in British India,
and we cannot regard, in the circumstances of the
present case, the posting of the cheques at Kolhapur
either as delivery of property to the appellant at
Kolhapur or payment of his claims at Kolhapur. The
entire argument founded on the provisions of s. 1°88 of
the Code. therefore, fails.
As the offence committed
by the appellant was not at a place beyond British
India, there was no need for the existence of a certific.
ate of a Political Agent or, in the absence of such a
person, a sanction of the Provincial Government.
Coming to the question whether the absence of a
sanction under s. 197 of the Code vitiated the trial, it
has to be established that Henderson was a public
servant removable by the Governor General-in-Councll
or the Provincial Government. As no objection had
been taken before the Special Tribunal by the appellant in this respect it was urged by the SolicitorGeneral that the prosecution had no opportunity of
establishing that Henderson, though a public servant,
was a person not removable by the Governor Generalin-Council or the Provincial Government. On the other
hand, it was urged by Mr. Harnam Singh that in the
High Court the objection had been taken but it had
been overruled on the ground that there was in fact a
100
SUPREME COURT REPORTS [1960 (2)]
1 959
sanction in existence. The High Court was under a
misapprehension. The sanction which was in existence
Sa.twant Singh
v.
was under s. 270 of the Government of India Act, 1935,
Thi State of Punjab which is given by the Governor General himself, whereas the sanction under s. 197 of the Code is given by
Imam J.
the Governor General-in-Council. The sanction under
s. 270 of the Government of India Act, 1935, could not
therefore be treated as a sanction under s. 197 of the
Code. In the High Court, apparently, no submission
was made that Henderson was not a public servant
removable by the Governor General-in-Council or the
Provincial Government. If it is being urged now that
Henderson was not such a person then the appellant
should be given an opportunity to show that he was
a public servant so removable. It is unnecessary to
deal with these submissions, which relate to a question
of fact, in view of our conclusion as mentioned below
with respect to the applicability of the provisions of
s. 197 of the Code in the present case.
Under s. 197 no Court shall take cognizance of an
offence committed by a public servant who is removable from his office by the Governor General-in
Council or a Provincial Government, save upon a
sanction by one or the other as the case may be, when
such offence is committed by him while acting or purporting to act in the discharge of his official duty.
Henderson was charged with intentionally aiding the
appellant in the commission of an offence punishable
under s. 420 of the Indian Penal Code by falsely stating as a fact, in his reports that the appellant's claims
were true and that statement had been made knowjng all the while that the claims in question were false
and fraudulent and that he had accordingly committed
an offence under s. 420/109, Indian Penal Code. It
appears to us to be clear that some offences cannot by
their very nature be regarded as having been committed by public servants while acting or purporting to
act in the discharge of their official duty. For instance,
acceptance of a bribe, an offence punishable under
s. 161 of the Indian Penal Code, is one of them and
offence of cheating or abetment thereof is another.
We have no hesitation in saying that where a public
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St1PR:B1ME COURT REPORTS
101
servant commits the offence of cheating or abets
r959
another so to cheat, the offence committed by him is
5
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not one while he is acting or purporting to act in the
atwa~. Sing
discharge of his official duty, as such offences have no The State of Punjab
necessary connection between them and the performance of the duties of a public servant, the official
Imam J.
status furnishing only the occasion or opportunity for
the commission of the offences (vide Amrik Singh' s
case (1 ) ). The Act of cheating or abetment thereof
has no reasonable connection with the discharge of
official duty. The act must bear such relation to the
duty that the public servant could lay a reasonable
but not a pretended or fanciful.claim, that he did it in
the course of the performance of his duty {vide Matajog
Dobey' s case {2) ). It was urged, however, that in the
present case the act of Henderson in certifying the
appellant's claims as true was an official act because
it was his duty either to certify or uot to certify a
claim as true and that if he falsely certified the claim
as true he was acting or purporting to . act in the
discharge of his official duty. It is, however, to be
remembered that Henderson was not prosecuted for
any offence concerning his act of certification. He was
prosecuted for abetting the appellant to cheat. We
are firmly of the opinion that Henderson's offence was
not one committed by him while acting or purporting
to act in the discharge of his official duty. Such being
the position the provisions of s. 197 of the Code are
inapplicable even if Henderson be regarded as a public
servant who was removable from his office by the
Governor General-in-Council or a Provincial Govern,
ment.
Elaborate arguments were advanced in support Of
the contention that the provisions of s. i97 of the
Code were not inconsistent with the Ordinance and
therefore had to be complied with before the Special
Tribunal could try Henderson. It was pointed out
that under s. 6 of the Ordinance the Special Tribunal
was specifically authorized to take cognizance of an
offence without the accused·being committed to it for
trial and sub-s. (2) of that section stated that "Save
(1) (1955] l S.C.R. 1302.
(2) (1955] 2 S.C.R. 925.
102
SUPREME COURT REPORTS [1960 (2))
r959
as provided in sub-s. (1) the Code of Criminal Procedure,
.
1898 (V of 1898), except the provisions of section 196-A
Satu,ant 5"•gh and of Chapter XXXIII, shall so far as they are not
TheStatev~f Pun·abinconsistent with this Ordinance, apply to proceedings
1 of a Special Tribunal ; and for the purposes of the said
Imam J.
provisions the Special Tribunal shall be deemed to be
a Court of Session, trying cases without a jury, and a
person conducting a prosecution before a Special
Tribunal shall be deemed to be a Public.Prosecutor."
It was urged that by virtue of this sub-section the
provisions of the Code of Criminal Procedure would be
applicable except the provisions of s. 196-A and Chapter XXXIII which had been expressly excluded.
Ifs. 197 of the Code was intended to be excluded, the
Ordinance would have said so.
Having regard to the
view we take that the provisions of s. 197 of the Code
do not apply to the facts of the present case as the
offence of abetment of cheating by Henderson cannot
be regarded as an offence committed by him while
acting or purporting to act in the discharge of his
official duty, it is unnecessary to consider the arguments advanced in this connection.
Coming now to th0 2nd and 3rd submissions made
on behalf of the appellant we have to consider whether
the appellant and Henderson could at all beo jointly
tried, having regard to the fact that they were jointly
tried up to a certain stage in some of the trials and to
the conclusion of the trial concerning cases Nos. 54,
55 and 56. We have already held that no part of the
offence of cheating was committed by the appellant
outside British India and consequently the provisions
of s. 188 of the Code did not apply. The provisions of
ss. 179 and 180 are wide enough to enable cognizance
to be taken either by a Court where anything was done
within the local limits of its jurisdiction or a court
where the consequences ensued. Illustration (c) to
s. 179 clearly states that if A is put in fear of injury
within the local limits of the jurisdiction of Court X,
and is thereby induced, within the local limits of the
jurisdiction of Court Y, to deliver property to the
person who put him in fear, the offence of extortion
committed against A may be inquired into or tried
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SUPREME COURT REPORTS
103
either by X or Y. The appellant could have been
r959
therefore tried either at Lahore or at Simla for the
5
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t
atwant ing
o ence o c eatmg as t e mISrepresen a 10n was a
v.
Simla and the consequence was at Lahore as then.state of Punjab
Government of Burma was induced by the misrepresentation to deliver property (money) at Lahore.
Imam J.
Under s. 180 when an act is an offence by reason of its
relation to any other act which is also a.n oft:ence, a
charge of the first-mentioned offence may be inquired
into or tried by a Court within the local limits of
whose jurisdiction either act was done.· Illustration (a)
· to this section states that a charge of abetment ·may
be inquired into or tried either by the Court within
the local limits of whose jurisdiction the abetment
was committed or by the Court within the local limits
of whose jurisdiction the offence abetted was committed, The offence· of cheating by the appellant could
have been tried either at Lahore or at Simla. Consequently, Henderson could also have been tried for the
abetment of that offence either at Lahore or at. Simla.
The case of these accused was allotted to the Special
Tribunal at Lahore and would have normally been
tried there but for the partition of India. The
trial under the authority of law, was concluded at
Simla. There seems, ·therefore, to have been no
illegality committed in trying the appellant and
Henderson together at Simla.
The other line of argument in support of the objection that the appellant and Henderson could not be
tried together was based on the provisions of ss. 233
and 239 of the Code. It was pointed out that under
the provisions of s. 233 of the Code for every distinct
offence of which any person is accused there shall be
a separate charge and every such charge shall be tried
separa.tely except in the cases mentioned in ss. 234,
235, 236 and 239.
Unless, therefore, the joinder of
trial of the appellant and Henderson was permitted
under s. 239 of the Code they could not be tried together. It was urged that .in construing s. 239 of the
Code it was not permissible to take into consideration
the provisions of s. 234. The only provision by which
a person accused of an offence and a person accused
104
SUPREME COURT REPORTS [1960 (2)]
x959
of abetment of that offence can be tried together in a
single trial is under s. 239(b) which permits persons
SatwantSingh
accused of an offence and persons accused of abetment
TheStatev;f Punjab to be charged and tried together. Under the terms of
_
these provisions any number of persons accused of
Imam .f.
commiting a single offence could be tried together
with any number of persons who had abetted that
offence.
But cl. (b) did not permit the trial of persons
accused of several offences and persons accused of
abetment of those offences in one trial and to try a
person accused of three offences along with a person
accused of abetment of those offences would be contrary
to the provisions of cl. (b).
If the provisions of
s. 239(b) and s. 234 were combined the result would
be to create another exception to be added to the exceptions stated ins. 233 of the Code. No Court had
any authority to create a new exception to s. 233.
S. 239 being an exception to s. 233 its provisions had
to be construed strictly. The plain words of s. 239(b)
make it quite clear that persons who had committed
a single offence and those who abetted it only could be
tried together. Since the appellant is said to have
committed three offences of cheating and Henderson
three offences of abetment thereof, the provisions of
s. 239(b) did not apply and their trial together was
vitiated. It was further pointed out that if there had
. been misjoindPr of trial in the present case it could not
reasonably be said that the appellant had not been
prejudiced. If the appellant had been tried apart
from Henderson. Henderson's confession and all the
evidence against him would have been excluded at the
trial of the appellant. As the result of Henderson and
the appellant being tried together all the evidence
against Henderson a1:1d his confession must have
necessarily adversely affected the case of the appellant.
On the other hand, the Solicitor-General submitted
that the provisions of the Code of Criminal Procedure
must be construed as they stand and reference to
decided cases may be made to assist the court in the
matter of construction if necessary. The Code itself
nowhere stated that ss. 234 and 239 of the Code were
mutually exclusive. The e1:1tire scheme of joinder of
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SUPREME COURT REPORTS
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charges and joinder of persons in a single trial has
been set out in the Code.
Although s. 233 of the Code
is clear enough, it has expressly. expected from the
application of its provisions ss. 234, 235, 236 and 239.
Sections 234, 235, 236 and 239 are permissive sections.
They are not compelling sections. · That is to say,
although these sections permit joinder of charges and·
joinder of persons a Court may well consider it desirable in the interest of justice and having regard to
the circumstances of a particular case that the charges
framed should be split up and separate trials should
take place in respect of them and the accused be tried
separately. It was to avoid multiplicity of trials,
harassment to the accused and waste of time that the
permisive ss. 234, 235, 236 and 239 enable a court,
within their terms, to join charges· and persons in a
single trial. Section 239 permitted joinder of charges
and persons in a single trial in cases covered by
els. (a) to (g):
These clauses permitted the joinder of
persons as accused in one trial .and they contemplated
the various circumstances in which such persons co.uld
be tried together. J oinder of several persons· in one trial .
necessarily involves the framing of more than one
charge. If the joinder of charges was within the terms
of ,the &ection, then the provisions of s. 233 had no
application. Although in cl. (b) of the section theivords
used are "persons accused of an offence and persons
accused of abetment, or of an ·attempt to commit
such.offence", a reasonable construction of these words
could not lead to the conclusion that the words " an
offence" meant a single offence because under s. 13 of
the General Clauses Act (Central Act X of 1897) words
in the singular shall include the plural and vfr,e versa.
Under cl. (b), therefore, persons accused of several
offences and persons accused of abetment thereof could
be tried together in a single trial. The: concluding
words of s.