# T olaram Relumal and Another v. The State of Bombay. Mehr Chand

- **Citation:** [1955] 1 S.C.R. 168
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-olaram-relumal-and-another-v-the-state-of-bombay-mehr-chand-366
- **Pages:** 7

## Headnote

1954
T olaram Relumal
and Another
v.
The State of
Bombay.
Mehr Chand
/vfaha}an C. J.
1954
April 5.
168
SUPREME COURT REPORTS
[1955]
sub-section Vl'ere
In our opinion,
much assistance
section 18(1).
never intended to be included therein.
the language of that section is not of
in construing the main provisions of
The result therefore is that in our view the receipt
of money by the appellants from the complainant at
the time of the oral executory
agreement of lease was
not made punishable under section 18(1) of the Act and
is outside its mischief, and the Presidency Magistrate
was in error in convicting the appellants and the High
Court was al>o in error in upholding their conviction.
We accordingly allow this appeal, set aside the conviction of the appellants and order that they be acquitted.
Appeals allowed.
M. K. GOPALAN AND ANOTHER
v.
THE STATE OF MADHYA PRADESH.
[MuKHERJEA,
SuDHI
RANJAN
DAs, BHAGWATI,
JAGANNADHADAS and VENKATARAMA AYYAR JJ.J
Constitutt°on of
India-Article
14-Criminal Procedure Code
(Act V of 1898), Section 14 and 197(1) and (2)-Section 14 whether
ultra vires article 14 of the Constitution-Scope of power under sec~
tion 197(2) and section 14-Whether the word "Court" in section 197
(2) means the same thing as ward "person" in section 14.
The petitioner,
an
officer
of
the
Madras Government, was
employed in Central Provinces and Berar for the purchase of grains
on behalf of the Madras Government. He along with many others,
was under prosecution before a Special Magistrate, Nagpur (Madhya
Pradesh), on charges for offences under section 420 of the Indian
Penal Code etc. for causing loss to the Madras Government.
The
Special Magistrate trying the case
was appointed by the Madhya
Pradesh
Government
under
section 14
of the Code of Criminal
Procedure
and as the petitioner was a servant of the
Government
of Madras,
the
prosecution against him was
initiated with the
sanction given by
the Government of Madras under section 197(1)
of the Code of Criminal Procedure.
Held, (i) that section 14 of the Criminal J>rocedure
Code in so
far as it authorises the Provincial Government to confer upo'n any
person all
or
any of
the
powers conferred or conferrable by or
under the Code on Magistrates of the first, second or third class in
"
l
.....
)
-
S.C.R.
SUPREME COURT REPORTS
169
respect of particular cases
and
thereby to
constitute
a Special
Magistrate for the
trial of an individual case, does not violate the
guarantee
under
article
14
of the Constitution as
the Special
Magistrate in the present case had
to
try the case entirely under
the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar's Case ([1952] S.C.R. 284)
.arose in the present case.
A law vesting discretion in an authority
under such circumstances cannot be discriminatory and is, therefore,
not hit by article 14 of the Constitution.
(ii) It is not for the very Government which accords sanction
under section 197 ( 1) to specify also the Court before which the trial
is to be held under section 197(2) and therefore in a case to which
,section 197(1) applies, the exercise of any power under section 14 is
.not excluded. The word "Court" in sub-section (2) of section 197 is
:not the same thing as a "person" in sub-section ( 1) of section 14.
The practice of direct approach to
the Supreme Court under
.article 32 (except for good reasons)
in matters which have been
taken to the High Court and found against, without obtaining leave
to appeal therefrom, is not be encouraged.
Gokulchand
Dwarkadas
Morarka v. The King
(A.LR. 1948
P. C. 82) referred to; and Anwar Ali Sarkar's case ([1952] S.C.R.
184) distinguished.
ORIGINAL JURISDICTION : Petition No. 55 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
..,
N. C. Chatterjee, (!. B. Dadachanji and
Rajinder
Narain, with him) for the petitioners.
K. V. Tambe and I. N. Shroff for the respondent.
1954.
April 5. The
Judgment of the
Court was
·delivered by

## Text

1954
T olaram Relumal
and Another
v.
The State of
Bombay.
Mehr Chand
/vfaha}an C. J.
1954
April 5.
168
SUPREME COURT REPORTS
[1955]
sub-section Vl'ere
In our opinion,
much assistance
section 18(1).
never intended to be included therein.
the language of that section is not of
in construing the main provisions of
The result therefore is that in our view the receipt
of money by the appellants from the complainant at
the time of the oral executory
agreement of lease was
not made punishable under section 18(1) of the Act and
is outside its mischief, and the Presidency Magistrate
was in error in convicting the appellants and the High
Court was al>o in error in upholding their conviction.
We accordingly allow this appeal, set aside the conviction of the appellants and order that they be acquitted.
Appeals allowed.
M. K. GOPALAN AND ANOTHER
v.
THE STATE OF MADHYA PRADESH.
[MuKHERJEA,
SuDHI
RANJAN
DAs, BHAGWATI,
JAGANNADHADAS and VENKATARAMA AYYAR JJ.J
Constitutt°on of
India-Article
14-Criminal Procedure Code
(Act V of 1898), Section 14 and 197(1) and (2)-Section 14 whether
ultra vires article 14 of the Constitution-Scope of power under sec~
tion 197(2) and section 14-Whether the word "Court" in section 197
(2) means the same thing as ward "person" in section 14.
The petitioner,
an
officer
of
the
Madras Government, was
employed in Central Provinces and Berar for the purchase of grains
on behalf of the Madras Government. He along with many others,
was under prosecution before a Special Magistrate, Nagpur (Madhya
Pradesh), on charges for offences under section 420 of the Indian
Penal Code etc. for causing loss to the Madras Government.
The
Special Magistrate trying the case
was appointed by the Madhya
Pradesh
Government
under
section 14
of the Code of Criminal
Procedure
and as the petitioner was a servant of the
Government
of Madras,
the
prosecution against him was
initiated with the
sanction given by
the Government of Madras under section 197(1)
of the Code of Criminal Procedure.
Held, (i) that section 14 of the Criminal J>rocedure
Code in so
far as it authorises the Provincial Government to confer upo'n any
person all
or
any of
the
powers conferred or conferrable by or
under the Code on Magistrates of the first, second or third class in
"
l
.....
)
-
S.C.R.
SUPREME COURT REPORTS
169
respect of particular cases
and
thereby to
constitute
a Special
Magistrate for the
trial of an individual case, does not violate the
guarantee
under
article
14
of the Constitution as
the Special
Magistrate in the present case had
to
try the case entirely under
the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar's Case ([1952] S.C.R. 284)
.arose in the present case.
A law vesting discretion in an authority
under such circumstances cannot be discriminatory and is, therefore,
not hit by article 14 of the Constitution.
(ii) It is not for the very Government which accords sanction
under section 197 ( 1) to specify also the Court before which the trial
is to be held under section 197(2) and therefore in a case to which
,section 197(1) applies, the exercise of any power under section 14 is
.not excluded. The word "Court" in sub-section (2) of section 197 is
:not the same thing as a "person" in sub-section ( 1) of section 14.
The practice of direct approach to
the Supreme Court under
.article 32 (except for good reasons)
in matters which have been
taken to the High Court and found against, without obtaining leave
to appeal therefrom, is not be encouraged.
Gokulchand
Dwarkadas
Morarka v. The King
(A.LR. 1948
P. C. 82) referred to; and Anwar Ali Sarkar's case ([1952] S.C.R.
184) distinguished.
ORIGINAL JURISDICTION : Petition No. 55 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
..,
N. C. Chatterjee, (!. B. Dadachanji and
Rajinder
Narain, with him) for the petitioners.
K. V. Tambe and I. N. Shroff for the respondent.
1954.
April 5. The
Judgment of the
Court was
·delivered by
JAGANNADHADAS J.-This is a petition under article 32 of the Constitution and is presented to this Court
under
the
following
circumstances.
Petitioner No. 1
•
before us was an Agricultural Demonstrator of the
Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar
for the purchase and movement of blackgram and other
.grains on behalf of the Madras Government. He, as
well as
the second petitioner and 44 others, are under
prosecution before Shri K. L. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. 1 of
;,... 1949 pending before him on charges of
cheating,
:attempt to commit cheating, criminal breach of trust
1954
M. K. Gopalan
and Another
y.
The State of
Madhya Pradesh
1954
M. ·K. Gopalan
and Another
v.
The State of
MadhJ'a Pradesh
Jagannadhadas J.
170
SUPREME COURT REPORTS
[1955]
and criminal conspiracy,
(i.e., for.
offences punishable
under section 420 read with section 120-B or 109 of the
Indian Penal
Code, section 409 and section
409 read
with section 120-B of the Indian Penal Code) and the
allegation is that by reason of the acts committed by
the accused, the Government
of Madras had to incur
an
expenditure
of
Rs. 3,57,147-10..0 in. excess of
the amount due. The Special Magistrate before whom
the case is now pending was appointed by the Madhya
Pradesh Government under section 14 of the Criminal
Procedure Code, and as the first petitioner was a servant of
the
Government of Madras, the prosecution
against him has been initiated by sanction given by
the Government of Madras under section 197 ( 1) of the
Criminal Procedure Code.
,
The validity of the prosecution is challenged on
various grounds, and the present petition is for quashing the proceedings
on the ground of their invalidity.
The three main points taken before us are : (1) Section
14 of the Criminal Procedure Code, in so far as it authorises
the Provincial Government to confer upon any
person all or any of the powers conferred or conferrable
by or under the Code on a Magistrate of the first,
second or third class in respect of particular cases and
thereby to .constitute
a Special Magistrate for the trial
of an individual case,
violates
the guarantee under
article 14 of the Constitution ; (2) The sanction given
under section 197 ( 1) of the Criminal Procedure Code
for the prosecution as against the first petitioner is invalid, inasmuch as the 01:der of the Madras Government
granting the sanction does not disclose that all the facts
constituting the offences
to be
charged· were
placed
•.
befor.e the ·sanctioning authority ; nor does the sanction. 1
s'tate the time or place of the occurrence or the transactions involved in it, or the persons with whom the
offences were committed. This contention is
raised
relying on the Privy Council case in Gokulchand
Dwarkadas Morarka v. The King(') ; (3). Even if the
sanction under section 197 ( 1)
of the Criminal Procedure Code is valid, it is for the very Government which
accords the sanction .to specify also .. the Court before
. (1) A.I.R. 1948 P.C. 82.
•
-
' '.
-T
)
-
•
S.C.K
SUPREME COURT REPORTS
.
.
'
\
171
which the trial .is to be held under section 197(2) arid
in the absence of any such . specification by. the said
Government, the power under section 14 of the Criminal
Procedure Code of appointing a Special Magistrate for
the trial of the case cannot be exercised by the Madhya
Pradesh Government ..
These points . may now be dealt with seriatim. In
support of the objection raised under article 14 of the
Constitution, reliance is placed on the decision of this
Court in Anwar Ali Sarkar's case( 1 ). That decision,
however, applies only to a case where on the'. allotment
of an individual case to a special Court authorised to
conduct the trial by a procedure substantially· different
from the normal procedure, discrimination arises · as
between persons who have committed similar offences,
by one or more out of them being subjected to a procedure, which is materially
different from the ·normal
procedure
and prejudicing them thereby.
In the present case, the Special Magistrate under section 14 of
!he Criminal Procedure Code has to try the case entirely under the normal procedure, and no discrimination
of the kind .contemplated by the decision in Anwar
Ali Sarkar's case( 1)
and the other cases following it
arises here. A law vesting discretion in an authority under such circumstances cannot · be said to be
discriminatory
as
such,
and is therefore not hit by
article 14 of the Constitution.
There is, therefore, no
substance in this contention.
.
As regards the second ground which is put forward
on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka v. The King(2), it is admitted that the trial has not yet commenced; The Privy
Council itself in the case mentioned above has recognised that the lacuna, if any, in the sanction of the kind
contemplated by that decision can be remedied in the
course of the trial by the specific evidence in that
behalf. Learned counsel for the State, without conceding the objection raised, has mentioned to us that
evidence in that behalf will be given at the trial. It
is, therefore,
unnecessary to decide the point whether
or not the sanction, as it is, and without such evidence
is invalid.
(1) [1952] S.C.R. 284.
12-86 S. C India/59
(2) A.I.R. 1948 P.C. 82.
1954
M. K. Gopalan
and Another
v.
The State of
Madhya Pradesh
Jagannadhadas].
1954 -
.M • .K. Gopalan
':and Another
v.
The State of
MadfEYa ·Pradesh
-·-
Jagannadhailas J.
1'72
SUl!REME COt:JR:T ·REP0RTS
f 1955]
.. It is the·tlllrd point ·that has been somewhat•"sehous'
ly pressed before us; The contention of learned · coun'
sel for the petitioners is ·based on sub-section (2) of sec~
tion 197 of die Criminal Procedure Code, ·which· 'tuns as
follows:-
·
"The Governor-General or Governor, as the 'case
may be, exercising his individual judgment may determine the person by whom, the manner in .which, the
offence or . offences for. which, the prosecution .. of such
Judge, Magistrate, or. public . servant .is to. be conducted,
and may specifry the Court before which the. trial :is to be
held."
.
The argument is that it is for the very Government
which sanctioned the .. prosecution· under section d97 ( 1)
to specify the Court before which ·the trial .is ·to be held
and no other, and th~t consequently, in a ·case to which
seGtion 197 ( 1) . applies, the exercise of any power under
section 14 is excluded. It is said that though the exercise of the power under ·section . 197(2) ·in so far as it
relates to specification · of the Court is concerned. is• dis-.
cretionary and optional, but if. in an .individual case,
that power is not exernised, it must . be taken that . the
appropriate Government did
not feel called upon .to
a.[lot the case· to any special Court, ·and that, therefore,
such allotment by. another . Government . under ·. section
14 would affect· or .nullify the power of the appropriate
Government under section 197(2). It is also suggested
that such dual exercise of the power by two : Govern- .
rnents would be contrary tC) the policy underlying section 197 which is for the protection .of the public . servant. concerned, by interposing the sanction , <;>f
the
Government between · the · accuser · .and its ser.vants of
the categories specified therein. This argument, is far.
fetched. In the ·first instance, there .is no . ,.reason to
think ih'at section 197(2) is inspired by any pqljc;y, of
protection of the co:icerned public. servant, . as section
197(1) is. There .can. be no question of .. protection_ involved by an accused being tried by one Court r!lther
than by another at the ·choice of the Government. The
power under section 197(2)° appears to be vested hi .the
'\ppropriate Government· for being exer.cised, on grounds
of convenience, or the complexity or gravity of the -case
or other _relevant. considerations. The . argwnent as to
1 .
~-.
-
(
•
'
S.C.Jt
SUPREME COURT REPORTS
173
the implication ; of non•exertise of the 1power by · the
appropriate Government under section 197 (2) ·'is ·also
untenable. The power to' specify· a' Court for trial · in
such cases
is a permissive power;. and there ca~ be no
such implication, as is ·contended for,· "arisi_ng' froin ··'the
honcexercise of the power.·
· : ~"
" · " · · · 1
. This · entire argument, ·h'owever; is. based . oh!'a _'mi~~
conception of the respective scopes of the powerS under '
section 197(2) and section; 14. The'· one r~lates· ~.to the
"Court" and the. other to -·the
''person"~ Under suhc
section. ·(2) of section 197, the sancti<~ning
G<?vern~ent
may specify a Court for the trial of the case but ·is' riot
bound to do so. When it. 'does not . choose to specify
the . Court, the· trial is subject to the "operation of· the
bther provisions of the' Code. 'Bu( even when iCchooses
..... • to exercise . the power of specifying the ' Court 'before
whith the trial is to be held, such specification of the
Court does not touch the question as to who is the person to function in such Court before which the trial is
to take place. That is a matte!'. still left to be exercised
by
the Provincial 'Government or :the arta where the
trial is to take place. The argument of learned counsel
proceeds on treating · .the _ 'Yorcl 1 "Cffmd' in s,ubcsection
_,_
(2) of. section 1?7
a~ peing, the sarp.e. as. a . "pers~n" in
sub-section (1)
of section 14, for which there· 1s no
warrant. There is. accordingly no" substance in this
.contention.
· Iri addition to the above three points, 'learned counsel
for the petitioners has also raised a further '_ppint · that
. in the present case Shri K. L. Pandey who was first ·
appointed as a Special Magistrate
for' t~e trial h( ,the
r case, and to whose file on such appointment. this case: was
transferred, was later on appointed as
acting Sessions
·Judge for some time and ceased to have this case before
him. He reverted back from his position as actiilg
Sessions Judge to his
original post. The .•point ·•taken
is that without a fresh notification· ·appointing him as :
·Special Magistrate ·and transferring _the_ ··case to him' as
such, he cannot be said . to be seized of this case. as'
/.. _ Special .Magistrate. Here · again, learned .coμnsel .for.
the State informs us, without· conceding the point"•.so
taken, that he is prepared to advise 'the· ·Government
1954
M, K. 'Clipalan and
Another
v.
.
The State of..
Madhya Pradesh
Jagannadhadas j,.
1954
. .Af. K. Gopalan
~!Id
Another
v.
The State of
Madhya Pradesh
Jagannadhadas J.
1954
April 14.
1'74
[l?55]
to issue the necessary. notifiqtjon .. and
h~ve ... dle case
transferred. In view of that statemep.t, it is unnecessary to. pronounce pn the obje~tion sg raised. .
.
In the result, all the. points .raised on behalf of the
petitioners fail, and. this petition must be dismissed.
It is desirable to observe that the questions above
dealt with appear to have been raised before the High
Court at previous stages ·by 'means of appliqtions urider
article 226
and decided . against. . No appeals. to this
Court have been taken
against the orders therein.
Nothing that we have said is . intended to be a pronouncement as to ·the correctness or otherwise of those
orders,
J,10r to encourage the practice ·of direct approach
to this Court (except for good reasons) in matters which
have been taken \o the High Court and fou.nd. against,
without obtaining leave· to appeal ther.efrom. ·
Petition dismissed.
PANDIT CHUNCHUN JHA
tJ.
SHEIKH EBADAT ALI AND ANOTHER.
[MuKHERJEA, VIV!AN BosE, GHULAM I{AsAN and
.VENKATARAMA AvvAR JJ.J
Transfer of Property Act (Act IV of 1882)-Section 58(c) as
·""' .
' -
amended by Act XX of .J929-,Document-Whether a mortgage or
-
sale outright-Principles. for determining whether the
document is
one or the other.
·
' .
·
The.re is 1?-C? hard and fast" rule for de~ermining )Vhether a given
transaction is a mortgage by coh_ditional sale Or sale outright with
a con_dition for- repUrchase.
·
·
(
:Each case must be dCcided On its
own facts.
The numerous
decisions of the High Courts on the point are of no help because
two documents are seldom expressed in identical -terms.
The intention of the parties is the determining. factor but the
intention must be _gathered from the document itself which has to
be construed to find out the legal effect of the word~ used by the
parties.
If the . words are express and clear, effe~t must be given to
them and any extraneous enquiry into what was thought or
inte.nded is ruled <.>ut.
If ho¥,rever there is ambiguity. in the language k
employed- then it is Permissible to look to the surrouflding circumstances to determine what was inten·ded.
..