# KESHAVLAL MOHANLAL SHAH v. THE STATE OF BOMBAY

- **Citation:** [1962] 1 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal Appeal No. 127 of 1960
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/keshavlal-mohanlal-shah-v-the-state-of-bombay-2136
- **Pages:** 6

## Headnote

Criminal Trial-Magistrate dismissed from service for criminal misconduct-Prosecution of-Cognizance by court-Sanction to
prosecute, if necessary-Code of Criminal Procedure, r898 (Act 5
of r898), s. r97.
The appellant, 'a Magistrate, was dismissed from service
as a result of a departmental enquiry. On a complaint filed by
the State Government he was convicted under s. 409 of the
Indian Penal Code. The point urged was that the trial Magistrate should not have taken cognizance of the offence without
the previous sanction in view of the provisions of s. 197 of the
Code of Criminal Procedure.
Held, that no previous sanction was necessary for a Court
to take cognizance of an offence committed by a Magistrate while
acting or purporting to act in the discharge of his official duty
if he had ceased to be a Magistrate at the time the complaint
was made or police report was submitted to the Court, i.e., at
the time of the taking of cognizance of the offence committed.
S. A. Venkataraman v. The State, [1958] S.C.R. 1037, applied.
CRIMlliAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 127 of 1960.
Appeal by special leave from the judgment and
order dated August 4, 1958, of the former High Court
Ayyangar ].
March r7.
4
at Bombay in Criminal Revision Application No. 728
> of 1958.
B. P. Maheshwari, for the appellant.
Keshavlal
Mohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ].
452
SUPREME COURT REPORTS
[1962]
Vir Sen Sawhney, R. H. Dhebar and T. M. Sen, for
the respondent.
1961. March 17. The Judgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This appeal, by special
leave, is directed against the judgment of the Bombay
High Court.
The appellant was a Third Class Magistrate at
Sanand in 1951. He received Rs. 200 in cash from
Amar Singh Madhav Singh as deposit for security to
be released on bail. This amount was not credited in
the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to
the amount.
The appellant was dismissed from service on April
4, 1953, as a result of a departmental enquiry. On
June 9, 1954, a complaint was filed on behalf of the
State against the appellant. He was convicted of the
offence under s. 409, Indian Penal Code, by the Trial
Magistrate. The conviction was confirmed by the
Extra Additional Sessions Judge, Ahmedabad. His
revision was dismissed by the High Court.
The only point urged in this appeal is that the
learned Magistrate should not have taken cognizance
of this offence without the previous sanction of the
State Government in view of the provisions of s. 197,
Code of Criminal Procedure.
It is not disputed that a Court could not have taken
cognizance of this offence against t.he appellant if he
had been a Magistrate on June 9, 1954. The appellant was not a Magistrate on June 9, 1954, when the
complaint was filed.
The question then is whether
the provisions of s. 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an
offence committed by a Magistrate while acting or
purporting to act in the discharge of his official duty
even when he is no longer a Magistrate on the date
the Court takes cognizance. Sub-section (1) of s. 197,
Code of Criminal Procedure, reads:
"(l) When any person who is a Judge within the
meaning of section 19 of the Indian Penal Code, or
J
;./
•
I S.C.R.
SUPREME COURT REPORTS
453
when any Magistrate, or when any public servant
who is not removable from his office save by or with
the sanction of a State Government or the Central
Government, is accused of any offence alleged to
have been commjtted by him while acting or purporting to act in the discharge of his official duty, no
Court/shall take' cognizance of such offence except
with the previous sanction-
( a) in the case of a person employed in connection
with the affairs of the Union, of the Central Government; and
(b) in the case of a person employed in connection
with the affairs of a State, of the State Government."
There cannot be much scope for the conten

## Text

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1 S.C.R. SUPREME COURT REPORTS
451
On the construction which we have adopted of the
'96'
expression 'tribute' in s. 4 of the Rajasthan Act the
Thakur
petitioner can have no legal or legitimate grievance Bahadu• Singh
against the enforcement of the payment made against
v.
him. The petition fails and is dismissed. There will State of Rajasthan
be no order as to costs.
Petition dismissed.
KESHAVLAL MOHANLAL SHAH
v.
THE STATE OF BOMBAY
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Criminal Trial-Magistrate dismissed from service for criminal misconduct-Prosecution of-Cognizance by court-Sanction to
prosecute, if necessary-Code of Criminal Procedure, r898 (Act 5
of r898), s. r97.
The appellant, 'a Magistrate, was dismissed from service
as a result of a departmental enquiry. On a complaint filed by
the State Government he was convicted under s. 409 of the
Indian Penal Code. The point urged was that the trial Magistrate should not have taken cognizance of the offence without
the previous sanction in view of the provisions of s. 197 of the
Code of Criminal Procedure.
Held, that no previous sanction was necessary for a Court
to take cognizance of an offence committed by a Magistrate while
acting or purporting to act in the discharge of his official duty
if he had ceased to be a Magistrate at the time the complaint
was made or police report was submitted to the Court, i.e., at
the time of the taking of cognizance of the offence committed.
S. A. Venkataraman v. The State, [1958] S.C.R. 1037, applied.
CRIMlliAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 127 of 1960.
Appeal by special leave from the judgment and
order dated August 4, 1958, of the former High Court
Ayyangar ].
March r7.
4
at Bombay in Criminal Revision Application No. 728
> of 1958.
B. P. Maheshwari, for the appellant.
Keshavlal
Mohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ].
452
SUPREME COURT REPORTS
[1962]
Vir Sen Sawhney, R. H. Dhebar and T. M. Sen, for
the respondent.
1961. March 17. The Judgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This appeal, by special
leave, is directed against the judgment of the Bombay
High Court.
The appellant was a Third Class Magistrate at
Sanand in 1951. He received Rs. 200 in cash from
Amar Singh Madhav Singh as deposit for security to
be released on bail. This amount was not credited in
the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to
the amount.
The appellant was dismissed from service on April
4, 1953, as a result of a departmental enquiry. On
June 9, 1954, a complaint was filed on behalf of the
State against the appellant. He was convicted of the
offence under s. 409, Indian Penal Code, by the Trial
Magistrate. The conviction was confirmed by the
Extra Additional Sessions Judge, Ahmedabad. His
revision was dismissed by the High Court.
The only point urged in this appeal is that the
learned Magistrate should not have taken cognizance
of this offence without the previous sanction of the
State Government in view of the provisions of s. 197,
Code of Criminal Procedure.
It is not disputed that a Court could not have taken
cognizance of this offence against t.he appellant if he
had been a Magistrate on June 9, 1954. The appellant was not a Magistrate on June 9, 1954, when the
complaint was filed.
The question then is whether
the provisions of s. 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an
offence committed by a Magistrate while acting or
purporting to act in the discharge of his official duty
even when he is no longer a Magistrate on the date
the Court takes cognizance. Sub-section (1) of s. 197,
Code of Criminal Procedure, reads:
"(l) When any person who is a Judge within the
meaning of section 19 of the Indian Penal Code, or
J
;./
•
I S.C.R.
SUPREME COURT REPORTS
453
when any Magistrate, or when any public servant
who is not removable from his office save by or with
the sanction of a State Government or the Central
Government, is accused of any offence alleged to
have been commjtted by him while acting or purporting to act in the discharge of his official duty, no
Court/shall take' cognizance of such offence except
with the previous sanction-
( a) in the case of a person employed in connection
with the affairs of the Union, of the Central Government; and
(b) in the case of a person employed in connection
with the affairs of a State, of the State Government."
There cannot be much scope for the contention that a
Court is prohibited from taking cognizance of an
offence committed by a Judge while acting or purporting to act in the discharge of his official duty only
when that person is a Judge at the time cognizance is
taken, as otherwise full effect will not be given to the
expression 'any person who is a Judge', in the subsection. Similar expression is not used in describing a
Magistrate or a public servant. But it is clear that
those two persons should also be 'Magistrate or a
public servant' at the time cognizance is taken of an
offence committed by them while acting or purporting
to act in the discharge of official duty.
_In connection with 'public servant' the expression
'who is not removable from his office save by or with
the sanction of a State Government or the Central
Government' indicates that. It is only when the
public servant concerned is in service that the question of his removal from office can arise. If the public
servant has ceased to be a public servant, no such
question arises. Therefore it seems proper to construe the expression 'when any Magistrate' in the subsection to mean 'when a person who is a Magistrate'.
Even if the expression be not construed in this form,
the section says: '.when any Magistrate ...... is accused
of any offence'.
This indicates that it is only when
the accusation is against a Magistrate that the Court
will not take cognizance of an offence committed by
(
[{ eshavlal
M ohanlal Shah
v.
The State of
Rombay
Raghubar
Dayal ].
z96I
Keshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ].
454
SUPREME COURT REPORTS
[1962]
him while acting in the discharge of his official duty,
without previous sanction. If a person is not a Magistrate at the time the accusation is made, the Court can
take cognizance without previous sanction.
It has been strenuously urged on behalf of the appellant that the expression 'when any Magistrate is
accused of any offence' refers to the stage when the
accusation is first made against the Magistrate, that is
to say, when it is alleged for the first time that the
Magistrate has committed such an offence. There
seems to be no justification to add the word 'first' and
read this expression as 'when any Magistrate is first
accused of any offence'. The occasion when such an
allegation is made for the first time against a Magistrate is not in connection with the Court's taking
cognizance of the offence but will always be either
when a complaint is made to a superior officer in the
department or to the police. Both these authorities
are free to inquire into the accusation. It is only
when the departmental enquiry or the police investigation leads to the conclusion that the matter is fit for
going to Court that a complaint would be made or a
police report would be submitted to the proper Court
for taking action against the Magistrate. It is at this
stage that the Magistrate would be accused of the
offence for the purposes of the Court and therefore it
would be then that the Court will see whether the
person proceeded against is a Magistrate or not.
This view finds further support from the language
of the clauses (a) and (b).
The previous sanction,
according to these clauses, will be of the Central
Government if the Magistrate is employed in connection with the affairs of the Union and of the State
Government if he is employed in connection with the
affairs of a State. If the person is not employed, no
sanction is necessary. Whether the person is so employed or not, is to be seen shortly before the submission of the complaint or police report to the Court.
The sanction can be given by the proper authority on
a consideration of the allegations and evidence available to establish them and therefore only after the
investigation is complete. The submission of the
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1 S.C.R. SUPREME COURT REPORTS
455
complaint or police report is expected to follow the
grant of sanction within a reasonable time.
A similar question arose in S. A. Venkataraman v.
The State (1) in connection with the interpretation of
the provisions of s. 6 of the Prevention of Corruption
Act, 1947 (Act II of 1947). Sub-section (1) of that
section reads:
"(l) No Court shall take cognizance of an offence
punishable under s. 161 ors. 165 of the Indian Penal
Code or under sub-section (2) of section 5 of this
Act, alleged to have been committed by a public
servant except with the previous sanction-
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central Government, of the Central
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the sanction of the State Government, of the State Government;
( c) in the case of any other person, of the authority competent to remove him from his office."
This Court said at p. 1046:
"The words in s. 6( 1) of the Act are clear enough
and they must be given effect to. There is nothing
in the words used in s. 6( 1) to even rnmotely suggest
that previous sanction was necessary before a court
could take cognizance of the offences mentioned
therein in the case of a person who had ceased to
be a public servant at the time the court was asked
to take cognizance, although he had been such a
person at the time the offence was committed ........
A public servant who has ceased to be a public
servant is not a person removable from any office
by a competent author~ty."
The same can be said with respect to the provisions of s. 197 of the Code of Criminal Procedure. We
therefore hold that no previous sanction is necessary
for a Court to take cognizance of an offence committed
{I) [1958] S.C.R. 1037.
Keshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal ],
J(eshavlal
M ohanlal Shah
v.
The State of
Bombay
Raghubar
Dayal].
March 2I.
456
SUPREME COURT REPORTS
[1962]
by a Magistrate while acting or purporting to act in
the discharge of his official duty if he had ceased to be
a Magistrate at the time the complaint is made or
police report is submitted to the Court, i.e., at the
time of the taking of cognizance of the offence committed. We accordingly dismiss the appeal.
Appeal dismissed.
F AZAL BHAI DHALA
v.
CUSTODIAN-GEKERAL OF EVACUEE
PROPERTY, DELHI
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Evacuee Property-Meaning of-Malafide transfer-Effect of
-Custodian-Interference with questions not before him in appeal
-Revisional Jurisdiction-Notice, if essential before exercising
jurisdiction-Non-issue of notice, when fatal-Partnership at will
-Dissolution of-Assets, if and when vest in Custodian-Indian
Partnership Act, r932 (IX of r932), s. 43-Government of India
Ordinance No. XXV II of r949, s. 7(I)-Administration of Evacuee
Property Act, z950 (XXXI of z950), ss. 2(f), 26, 40.
F, the appellant, and A his brother, were partners in a business of hides and skins. On August ro, 1949, A executed a deed
of sale in respect of some immoveable properties in Orissa and
Madras in favour of F. A deed of dissolution of the partnership was also executed on August 12, 1949, wherein it was inter
alia stated that the partners had agreed that the said partnership shall stand dissolved as from November 2, 1948.
On receipt of information that A had migrated to Pakistan
after transferring his properties to his brother F, the Assistant
Custodian of Evacuee Property, issued a notice to Funders. 7(1)
of the Ordinance 27 of 1949 in respect of immoveable properties
in Orissaincluding the properties covered by the sale deed and
the business in hides and skins and certain immoveable properties standing in the name of the firm.
In reply F contended that he had become the sole proprietor of the business with all assets and liabilities, with effect
from November 2, 1948, when the partnership was dissolved
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