ORDER
Nevaskar, J.
1. Accused K. N. N. Ayyangar was prosecuted under Section 161 I. P. C., before the Additional District Magistrate, Railway Lands, Mr. B. R. Dube on a challan submitted by the Delhi Special Police Establishment, Jabulpur. The said Magistrate found the accused guilty under that section and sentenced him to rigorous imprisonment for two years and a fine of Rs. 7000/-.
2. Accused preferred an appeal against this decision which was heard by the Second Additional Sessions Judge, Indore who maintained his conviction but reduced the sentence of imprisonment from two years to six months and of fine from 7000/- to Rs. 1000/-.
3. Accused has now come up in revision to -this Court.
4. Material facts as put forward by the prosecution are that accused Mr. K. N. N. Ayyangar was an Executive Engineer posted at show B. B. & C. I. Railway (now Western Railway) during the entire period material to the present prosecution. P. W. 1 Mulchand is a Contractor who used to take contracts for construction work for the Railway and in connection therewith often used to come in contact with the accused. One such contract relevant to the present prosecution related to the construction of a gate-lodge for the benefit of a factory situated in Indore City known as 'Malwa Vanaspati and Chemical, Co. Ltd.', Construction of this gate lodge was necessitated by the circumstance that the factory was situated on the eastern side of the Railway lines while the approach road to the said factory was on the Western side. Costs of construction of this gate-lodge was agreed to be borne by the said company and not by the Railway Company
5. On a tender-notice Ex. P/2 dated 13-8-1949 issued by the accused as Executive Engineer Mhow P. W. 1 Mulchand among others, submitted his tender Ex. P/1 which was the lowest among those received. Consequently he was informed by letter dated 12-11-1949 that his tender was under consideration. Thereafter a lengthy correspondence took place between the Factory and the Railway Company for a period covering nearly a year during which the Malwa Vanaspati Co. first offered to carry out the work through their own Contractor according to specifications of the Railway Company but ultimately the said Company by letter Ex. D/11 dated 7-11-50 addressed to E. N. C. (Engineer-in-Chief), Ajmer expressed their willingness for the construction of the gate-lodge through the Railway Company. Mulchand expressed his willingness to stick to the old rates which he had given a year before.
Tentative work-order was signed by the Executive Engineer and the contractor on 18-11-1950. It is said that at this time accused obtained Rs. 1253/- representing 10/- per cent commission on the sum representing the contract amount for executing the order. This amount it is said was jotted down by the accused in a chit Ex. P/35. After this the Contractor with the active aid of the Executive Engineer rushed the materials to the site of construction and it is said that he even dug foundation in anticipation of the sanction of the Chief Engineer, Ajmer which was necessary under the rules.
6. There was another matter in which P. W. 1 Mulchand as a Railway Contractor was concerned. Mulchand had accepted a contract to supply materials needed for the repair of buildings damaged during monsoon. There were allegations that the contractor P. W. 1 in league with Mr. Mendis and with the connivance of Executive Engineer had made a short supply of these materials. In the early part of December 1950 Delhi Special Police Establishment were investigating this case regarding short supply of monsoon materials.
7. In connection with this case Mulchand Contractor is said to have made a statement on 12-12-1950 wherein besides making a statement relevant to the subject under consideration complained that fresh tenders had been invited for the construction of a gate-lodge for Malwa Vanaspati and Chemicals Co. Ltd., and that 20th of December was the last date fixed for the purpose. He further complained that accused Mr. K. N. N. Ayyangar was demanding Rs. 1000/- from him for the acceptance of his tender and that three such demands had been made previously by him. He further stated that he could not arrange for Rs. 1000 /- before but that he had by then arranged for the money and was in a position to pay. It was also revealed by him that the Executive Engineer Mr. Ayyangar was to return to Mhow by the 13th evening or morning of 14th and further that he was prepared to act as a decoy in giving him a bribe. Next day i. e. on the 13th he was brought to Indore by Mr. Shirole. D. S. P. of Delhi Special Police Establishment. Mr. Shi-role approached the Sessions Judge, Indore, requesting him to depute a Magistrate to accompany the raiding party which was going to lay a trap the next day (Ex. P/-21).
8. The Sessions Judge asked Mr. Kher, Additional District Magistrate, Indore City, to accompany the raiding party. It is said that Mulchand made a similar statement before Mr. Kher which was reduced to writing and produced as Ex, P/22. It is not shown under what provisions this was done but it was there.
9. By the night train, it is said, Mr. Shirole and other persons of Delhi Special Police accompanied by Mr. Kher went to Mhow. The saloon of the Executive Engineer Mr. Ayyangar was attached to the same train. This saloon on reaching Mhow was placed at the siding on the Southern end of Mhow Railway Station near the level crossing. Mr. Shirole is then said to have suggested that they should go to Mulchand's place. Accordingly the party consisting of Mr. Shirole, D. S. P., Mr. Jagavani I. P., and Mr. Kher went to Mulchand's place where further plans were discussed. Mr. Shirole and Jagavani then left, leaving Mr. Kher and Mulchand together only to return after about two hours. This time they were accompanied by one Madanlal who was to act as a Panch Witness. Five notes of one hundred rupees each were put forward by Mr. Mulchand. These were agreed upon to be given to the Executive Engineer as a bribe. Panchanama of these notes was made and their particulars including serial numbers were put down therein (Ex. P/20).
Mr. Shirole then instructed each member of the raiding party where he was to stand and the role he was to perform. The place assigned to Mr. Kher, according to the prosecution, was at a distance of about three of four feet behind the saloon on its Southern end. Madanlal occupied a position at a distance of about 12 or 13 steps from the Eastern, side of the saloon. Mr. Kher was to overhear the conversation between the accused and Mulchand while Madanlal was to see through glass pane what would take place during the meeting of Mulchand with the accused. It is said that Mr. Kher covered over himself with a woollen blanket and stood behind the saloon according 'to instructions.
10. In the early morning Mulchand is said to have informed through a peon his arrival to the accused. He was then ushered in and was given a seat in front of the berth occupied by the accused. Meeting took place and the conversation between the accused and Mulchand was, according to prosecution overheard by Mr. Kher. Madanlal saw what took place. Mulchand is said to have given those five one hundred rupee notes to Mr. Ayyangar who took them and placed them underneath his pillow, Mulchand then as previously arranged is said to have coughed and the raid was made at once. In the course of conversation Mulchand is said to have expressed his anxiety in case his tender were not accepted whereupon the accused asked him whether he had arranged for the sum to which Mulchand replied that he could not arrange for the entire amount but that he had brought rupees five hundred which might be taken assuring that he would pay the rest the same evening. Mr. Ayyangar is said to have said alright at this.
11. On making the raid the party recovered those five one hundred rupee notes from underneath the pillow of the accused. Panchanama of this recovery was made on the spot. This is produced as Ex. P/17 and purports to have been signed by Mr. Kher, Madanlal and Mr. Jagavani I. P.
12. Then Mr. Jagavani sought permission to Investigate under Section 3, Prevention of Corruption Act, 2 of 1947 (Ex. P /26). This was accorded by Mr. Kher himself. Mr. Kher ordered his arrest and he was allowed to be released on bail of Rs. 10,000/-.
13. Permission was also sought by Mr. Jagavani to search the saloon. This too was granted by Mr. Kher (Ex. P/25). House of Mr. Ayyangar was also similarly searched. Thereafter Mr. Kher returned to Indore. Mulchand was later brought to Indore and his statement under Section 164, Criminal P. C. was recorded by Mr. Kher (Ex. P/28).
14. Mr. Kher further made a record of what conversation had taken place just before the raid between the accused and Mulchand (Ex. P/24) in the shape of a memorandum.
15. Sanction was then sought to prosecute the accused from Central Government as the accused belonged to Central Services and liable to be removed only under the order of Central Government. Two sanctions were granted. One under Section 197, Criminal P. C. and the other under Section 6, Prevention of Corruption Act. They are produced as Ex. P/41 and P/42. On the basis of these facts accused was prosecuted.
16. The accused in his examination under Section 342. Criminal P. C. denied his concern with the monsoon material case though he asserted that in fact there was no short supply of materials. He denied to have taken 10 per cent commission on the work order which was executed subject to the sanction of the higher authorities. He said he never authorised Mulchand to dig foundation though he had permitted him to carry building materials to the spot where gate-lodge was to be constructed. He admitted that he had informed Mulchand regarding the order from authorities calling for fresh tenders. Demands for Rs. 1000/- as a bribe to secure acceptance of his tender is denied and they are stated to be quite incompatible with the state of his movement diary.
As regards what took place just before the raid the accused stated in his written statement, which he submitted on 11-1-52 that on receipt of. a message of Mulchand through his Chaprasi for a short interview at 6 A.M. on 14-12-1950 he gave his consent with some hesitation. He then went to the bath room to have a wash. While he was inside the bath room Mulchand had entered and was found seated on a chair ad-Joining his berth near the pillow side of his bed. The only conversation that then took place between him and Mulchand related to his tender pertaining to amenities for third class passengers at Indore. The tenders regarding the same were to be opened the same day. Mulchand then had stated that he had not deposited earnest money for the tender as his dues were lying unpaid with the Railway Company and that his tender might not be rejected on that account.
17. The alleged talk regarding the demands for Rs. 1000/- and the facts of its payment to the saloon to him and his having placed the five one hundred rupee notes underneath his pillow were denied though, he admitted their recovery from there. He further asserted that unpleasantness had developed between him and Delhi Special Police Establishment by reason of unlawful methods which they had sought to follow during its investigation of monsoon material case and about which he had complained to higher authorities. He also stated as a circumstance that all the windows including glass panes and wooden shutters had been shut when he went to sleep on reaching Mhow Railway Station; and had not been opened till the advent of the raiding party.
18. The trial Court after consideration of the evidence adduced by the prosecution and in view of the defence raised by the accused convicted him as aforesaid and his decision was upheld in appeal except as regards the sentence.
19. In the present revision petition the propriety of this conviction is assailed both on merits as well as on questions of law which ac-cording to Mr. Shambhudayal, the learned Counsel for the accused, go to the very root of the case and have the effect of rendering his conviction illegal.
20. Before considering the submissions of the learned Counsel on merits I shall first deal with the questions of law raised by him. They are as follows:
First : The present prosecution has been commenced on the basis of a report made by an Officer of the Delhi Special Police Establishment after an investigation by him under the powers conferred upon him under Delhi Special Police Establishment Act, 1946.
The said Act was inapplicable to Rail-way Lands at Mhow at the time of alleged commission of the offence or at the time of investigation. The investigation and the commencement of prosecution under Section 190, Criminal P. C. are both bad in law. The Magistrate, who tried the case assumed jurisdiction on the basis of what he conceived to be a Police report.
As the officer of Delhi Special Police Establishment has no power to act as Police Officer and to make investigation in Madhya Bharat on the date of the offence as well as when investigation was made and as Railway Lands at Mhow are within Madhya Bharat the assumption of jurisdiction under Section 190, Criminal P. C. is bad. The trial is therefore, vitiated.
Second : The investigation was made by Mr. Jagavani, Sub-Inspector of Police of Delhi Special Police Establishment after securing permission from Mr. Kher, Additional District Magistrate, Indore City. The latter had no jurisdiction to authorise investigation outside Indore City limits nor could he order an arrest or the making of a search. Proceedings of investigation, arrest and search thus made in consequence of his orders are bad in law.
Third : Mr. B. B. Dube, who tried the case as Additional District Magistrate, Railway Lands, which included those at Mhow, was not duly appointed. Trial and consequent conviction by him are therefore illegal.
Fourth : Sanction obtained under Section 6, Prevention of Corruption Act from the Central Government is defective in form as it is not expressed in the name of the President and authenticated in the manner provided by the Rules made by the President in that behalf.
21. As regards the first it is necessary to refer to the history of legislation pertaining to the Delhi Special Police Establishment upto the date of offence or period of investigation.
22. By Ordinance No. 22 of 1946, Governor-General of India in exercise of powers conferred upon him by Section 72, Government of India Act as set out in the Ninth Schedule to the Government of India Act, 1935 made and promulgated the Ordinance called the Delhi Special Police Establishment Ordinance, 1946. Under Section 5 of the Ordinance Central Government was empowered to extend, by order, to any area including Railway areas in British India outside Chief Commissioner's' Province of Delhi the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any offences or classes of offences specified in a notification under Section 3 of the Ordinance.
23. Under the powers thus conferred Central Government by Political Department Notification No. 482 I. B. dated 1-10-1946 published in the Gazette of India Extraordinary of the same date extended the powers and jurisdiction of the Delhi Special Police Establishment for investigation of offences referred to above to areas in Central India Agency and Central India Railway Lands. This was later repealed and re-enacted as the Delhi Special Police Establishment Act, 1946.
24. By Section 30, General Clauses Act, Central Act included an Ordinance made and promulgated in exercise of the powers conferred upon Governor-General under Section 72 of the Government of India Act vide - 'In re Raju Chettiar' AIR 1946 Mad 254 (A).
25. By Section 24, General Clauses Act where any Central Act is repealed and re-enacted with or without modification Notifications issued under the repealed Central Act are to continue in force and be deemed to have been made or issued under provisions so re-enacted.
26. Thus by the joint operation of Sections 24 and 30, General Clauses Act the Delhi Special Police Establishment Act became applicable to Central India Railway Lands which included Railway Lands, Mhow.
27. Thus the Delhi Special Police Establishment Act continued to apply to Railway Lands at Mhow till 14-8-1947.
28. On 15-8-1947 Indian Independence Act came into force. This had the result firstly that the territories which included Railway Lands Which had been assigned to the Crown for specified purposes were retroceded and became part of corresponding Indian States and Railway Lands at Mhow became part of Holkar State territory. Secondly that but for the saving contained in the proviso to Section 7 the nexus between the Indian States and the Central Government was lost. However proviso to Section 7 saved the continuance of agreements entered into between the Rulers of Indian States and the British Crown relating to specified subjects which included 'Transit and Communication' until denounced.
29. Standstill Agreement providing for the continuance of existing arrangements on specified subjects which included Railway including, Police and other arrangements, was executed by His Highness the Maharaja Holkar on 14-8-1947.
30. The formation of Madhya Bharat did not affect this position and the same law continued to be in force.
31. Thus it will be clear that in spite of the fact that no direct legislation was made by His Highness Holkar for bringing into force the Delhi Special Police Establishment Act, 1946 provision in the Standstill Agreement which should be liberally construed had the same effect.
32. It is, therefore, erroneous to contend that an Officer of Delhi Special Police Establishment was not a Police Officer and could not investigate an offence committed within Railway Lands at Mhow which is situated in Madhya Bharat and that cognizance taken on his report is not valid.
33. As regards competency of Mr. Kher, Additional District Magistrate, of the First Class, Indore City to grant permission to Investigate and to order arrest and search in respect of an offence within the limits of Railway Lands at Mhow it is contended by Mr. Shambhudayal that Mr. Kher was appointed a Magistrate for the City of Indore with powers of Additional District Magistrate and he was to exercise his powers as a Magistrate of First Class within the limits of Indore City including Siyaganj. As. Mhow fell outside this limit, he could not exercise any powers there under provisions of Criminal P. C.
34. In order to appreciate this contention i6 is necessary to refer to Sections 12 and 13, Criminal P. C.:
Section 12 : (1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate, to be Magistrate of the first, second or third class in any district outside the presidency-towns; and the State Government or the District Magistrate, subject to the control of the State Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.
'Section 13 : (1) The State Government may place any Magistrate of the first class or second class in charge of a sub-division, and relieve him of the charge as occasion requires. (2) Such Magistrate shall be called Sub-Divisional Magistrate.
(2) The State Government may delegate its powers under this Section to the District Magistrate.
35. This Sub-section (2) of Section 12 makes it clear that unless it is otherwise provided by such definition, jurisdiction and powers of persons appointed to be Magistrate of first, second or third class in a particular District shall extend throughout such district.
36. Mere definition of areas of jurisdiction or the appointment of a Magistrate to a certain Sub-Division cannot be taken to be a provision Which has got the effect of excluding his jurisdiction in the rest of the District. I am supported in this view by the cases reported in 'Gulabrao Laxmanrao v. Emperor' AIR 1935 Bom 409 (B). In this case judgment was delivered by Beaumont C. J. with which Wadia J. concurred. At page 409 of the judgment the learned Judge is reported to have said:
So that under that Section the Local Government can appoint a Magistrate in a particular district and then the Local Government or the District Magistrate may carve up the district and define particular areas within which particular Magistrates are to exercise their functions. If the matter stood there, it might be suggested that where the District Magistrate has made an order directing that a particular Magistrate is to exercise jurisdiction within a particular area, the Jurisdiction of that Magistrate is confined to that area and does not in future extend to the rest of the district. But then comes Sub-section (2) which says:
Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.That seems to me to be a saving clause which prevents the mere carving up of the district into areas amongst Magistrates from having the effect of depriving magistrates of Jurisdiction in the whole district, unless the order, defining the areas so provides. It is obvious to my mind that the mere definition of areas cannot be taken as a provision excluding jurisdiction in the rest of the district, for if it did, Sub-section (2) would be meaningless. I think the sub-section clearly requires some provision excluding jurisdiction in the rest of the district, which is either express or must be inferred by necessary implication.
37. The same view appears to have been taken in - 'Gulam Hussain v. Sajawal Shah' AIR 1933 Lah 143 (C).
38. These cases are followed in a more recent case reported in - 'Amritrao Udaybhanji v. Chandrabhan Sabooji' AIR 1947 Nag 79 (D).
39. I respectfully agree with the view taken in these cases and hold that the grant of permission to investigate and other powers exercised by Mr. Kher cannot be said to be without jurisdiction.
40. It was also contended in this connection that Mr. Kher purported to grant permission to Investigate under Section 3, Prevention of Corruption Act, 1947 which was inapplicable in Madhya Bharat on the date in question.
41. In the first place though permission was sought referring to Section 3, Prevention of Corruption Act there is nothing in the order to confine the same to the said Act. Moreover, if the Magistrate had power to grant permission the permission is not invalidated by reason of reference to an erroneous provision of law. At the most this would be a mere irregularity not affecting jurisdiction and cannot vitiate trial or consequent conviction if it is otherwise good.
42. There is abundant authority to hold that irregularities at the stage in investigation or in the arrest of the accused cannot affect the validity of the trial. I might in this connection refer to the cases reported in - 'Parbhu v. Emperor' AIR 1944 PC 73 (E); - 'Raghunath Lahanusa V. Emperor' AIR 1932 Bom 610 (F) and - 'Rustam Ardeshir Banaji v. Emperor' AIR 1948 Bom 163 (G).
In the last mentioned case it was held that:
Even if an irregularity has been committed by a Sub-Inspector in the investigation of a cognizable offence and in arresting the accused, the charge sheet submitted by him to the Magistrate can be treated as 'a report made in writing by a Police Officer' within the meaning of Section 190(1) (b) and the Magistrate has jurisdiction to try the case in view of the provisions of Section 156(2).
'Even supposing that the charge-sheet cannot be treated as a report within the meaning of Section 190(1) (b) it can be treated as a 'complaint' within the meaning of Section 4(1) (b) and would therefore fall under Section 190(1) (a) and the Magistrate has jurisdiction to take cognizance of the offence.
43. As regards third contention this involves question of fact. The contention was never raised at the trial. Even in this Court the petitioner was asked to file an affidavit in support of this ground by my learned brother Khan J. who had heard the case before me but no such affidavit was filed.
44. I, therefore, cannot permit this contention to be raised. The learned Sessions Judge before whom the contention was raised for the first time has chosen to act on the presumption regarding regularity of official acts. This cannot be considered to be erroneous. He could as well have refused to permit this point to be urged as it involved a question of fact.
45. That Fourth point is as regards validity of sanction under Section 6, Prevention of Corruption Act.
46. Learned Counsel for the accused challenged this validity on two grounds.
47. It is urged that although Prevention of Corruption Act, 1947 was not in force on the date of the alleged commission of the offence it had come into force when the prosecution was commenced. The provision as regards sanction under Section 6 of the Act is, it is urged, one pertaining to procedure and has the retrospective effect in the sense that it would apply to cases of prosecutions launched after the Act comes into force though the offence was committed earlier. Reliance is placed in this connection on the case reported in - 'Karim Bux v. Rex' : AIR1950All494 where Agarwala J. took this view. If this be accepted as the correct view, then the sanction under Section 6 of the Act obtained and produced is not in the name of the President and authenticated in the manner provided by the rules made by the President as required by Article 77 of the Constitution. It was urged relying upon the cases reported in - 'Basdeo Agarwalla v. Emperor' AIR 1945 PC 16 (I) and - 'Gokulchand Dwarkadas v. The King' AIR 1948 FC 82 (J) that if the sanction is absent or invalid in law the entire trial is without jurisdiction.
Reliance is also placed in this connection upon cases reported in - 'State or Bombay v. Purushottam Jog Naik' : 1952CriLJ1269 and-- 'State v. Biswanath Naik' : AIR1952Ori220 .
48. Secondly it is urged that even if it is assumed that the sanction though defective in form is substantially one granted by the authority contemplated under the Act the same should toe considered to be invalid as there is a substantial departure in the facts put up before the sanctioning authority for obtaining sanction from those sought to be proved for securing the conviction of the accused.
49. The learned Counsel in this connection brought to my notice the fact stated in the sanction Ex. P / 42 and those stated in the charge framed against the accused. He also referred to the judgment of two courts below to show what Were the facts found by them on the basis of which conviction was made. It is contended that on comparison of the document produced as sanction on the one hand and charge-sheet and the judgment of the court below on the other it would appear that there is substantial difference as regards factual ingredients contained in them, while from the sanction Ex. P/42 it would seem that the demand for bribe and its giving took place in the Railway saloon itself. The facts subsequently proved and found by the courts below indicate that there had been three prior demands interspersed between the period when fresh tenders were known to have been called and the date of the offence. Secondly, whereas in the sanction bribe is said to have been taken by the accused for acceptance of the tender by him in the charge-sheet it was stated that the bribe was taken on representation by the accused that he would secure the acceptance of the tender.
The facts found by the courts below indicate that it was not competent for the accused to accept the tenders. The matter lay in the hands of the Chief Executive Engineer and initial re-commendation could be made by a Tender Committee consisting of three members one of whom would be the executive Engineer. Thus both as regards the facts relating to previous demands as well as those relating to the acceptance of the tender there is a serious departure in the factual ingredients and the conviction based on facts so widely and substantially differing from those in the sanction is invalid. Reliance, is placed for this purpose on AIR 1948 PC 82 (J).
50. To appreciate the contention on behalf of the accused, it is useful to set forth the convents of sanction Ex. P /42 which are as follows:
Whereas it has been made to appear to the Central Government
THAT .Shri K. N. N. Ayyangar while posted as Executive Engineer, Mhow, B. B. & C. I. Railway on about 14-12-1950 in the early morning at his saloon demanded a sum of Rs. 1000/- as gratification other than legal remuneration from Shri Moolchand Contractor for accepting his tender for construction of the Gate-Lodge for Malwa Wanaspati Mills at Indore and accepted a sum of Rs. 500/- as part payment as gratification other than legal remuneration as a motive or reward for accepting the tender of the Contractor Shri Moolchand and thereby committed acts which constitute offence Under Section 161, I. P. C.
That the Central Government is satisfied that Shri K. N. N. Iyyangar has committed the above alleged offence and is of the opinion that he should be tried in a court of law of competent jurisdiction.
Whereas Under Section 6(a) of Act 2 of 1947, no court can take cognizance of an offence punishable Under Section 5 (2) of Act No. 2 of 1947 or Section 161, I. P. C. alleged to have been committed by a public servant, who is not removable from his office save by or with the sanction of the Central Government except with the previous sanction of the Central Government.
NOW
Therefore the Central Government is pleased to accord sanction for the institution of criminal proceedings against Shri K. N. N. Ayyangar for having committed the above alleged offence and orders that he be tried in a court of law of competent jurisdiction.
By order of Central Government,
Sd/ U.K. GHOSHAL,
Deputy Secretary to the Government of India.
Ministry of Home Affairs.
51. Article 77 of the Constitution lays down as follows:
(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) * * * *
52. In Ex. P/42 the name of the President no doubt does not appear any where and both in the body of the sanction as well as in the signature authority referred to is the Central Government. Question for consideration is whether the sanction is invalid on that account
53. In this connection it is useful to refer to two recent decisions of the Supreme Court reported in - 'Dattatraya Moreshwar v. State of Bombay' : 1952CriLJ955 and : 1952CriLJ1269 . In the former case petitioner Dattatraya Moreshwar was detained by the State of Bombay under Preventive Detention Act under the orders of the District Magistrate of Surat and this was later confirmed by the Government and this decision was communicated to the District Magistrate by a confidential letter signed by one Kharkar for Secretary to Government of Bombay, Home Department. Affidavits were filed in the case indicated that G. K. Kharkar who signed the letter for Secretary to the Government of Bombay, Home Department, was at the time Assistant Secretary and as such, was under Rule No. 12 of the Rules of Business made by the Government of Bombay under Article 166 of the Constitution, authorised to sign orders and instruments of the Government of Bombay.
It was urged on behalf of the petitioner Dattatraya before their Lordships of the Supreme Court that no valid order of confirmation had been made in proper legal form at all and that a confidential communication referred to above could not be regarded as an order under Section 11(1) of the Act. On behalf of the State the learned Attorney-General sought to support the case on two grounds, viz., that all that the Act requires is the taking of decision and not making of any formal order and, secondly, even if it were necessary, provision contained in Article 166(1) is directory and not imperative and failure to express the order in requisite form does not make the decision itself illegal.'
54. Their Lordships accepted the second of these two contentions. At page 185 of the report Das J. while dealing with this question said thus:
Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. , If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the confirmation of an order of decision under Section 11 (1), that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein, laid down but an omission to comply with those provisions does not render the executive action a nullity.
B.K. Mukherjea J. dealing with the same question held as follows:
In my opinion, Article 166 of the Constitution which purports to lay down the procedure for regulating business transacted by the Government of a State should be read as a whole. Under Clause (3), the Governor is to make rules for the more convenient transaction of such business and for allocation of the same among the Ministers in so far as it does not relate to matters in regard to which the Governor is required to act in his discretion. It is in accordance with these rules that business has to be transacted. But whatever executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the Governor in whom the executive power of the State is vested and it shall further be authenticated in the manner specified in the rules framed by the Governor.
Clauses (1) and (2) of Article 166, in my opinion, are to be read together. Clause (1) cannot be taken separately as an independent mandatory provision detached from the provision of Clause (2). While Clause (1) relates to the mode of expression of an executive order or instrument, Clause (2) lays down the way in which such order is to be authenticated; and when both these forms are complied with, an order or instrument would be immune from challenge in a court of law on the ground that it has not been made or executed by the Governor of the State.
'This is the purpose which underlines these provisions and I agree with the learned Attorney-General that non-compliance with the provisions of either of the clauses would lead to this result that the order in question would lose the protection which it would otherwise enjoy had the proper mode for expression and authentication been accepted. It could be challenged in any court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under Article 166 of the Constitution.
The same learned Judge further held:
Even if Clause (1) of Article 166 is taken to be an independent provision unconnected with Clause (2) and having no relation to the purpose which is indicated therein, I would still be of opinion that it is directory and not imperative in its character. It prescribes a formality for the doing of a public act. As has been laid by Maxwell (Maxwell on Interpretation of Statutes, pp. 379-380):
'Where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconsistencies or injustice to persons - who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or in other words as directory only.
55. In : 1952CriLJ1269 , Bose J. who gave the leading judgment held as follows:
Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regarding the permissible limits of departure from the language of a Statute or of the Constitution will be worth-while, taut when all is said and clone we must look to the substance of Article 166 and of the Order.
In that case the order in question contained the expression 'Government of Bombay', in its body and at the foot signature was made by the Secretary, Home Department, Government of Bombay stating 'By order of the Governor of Bombay.'
While dealing with the question as regards quantum of evidence needed to prove the order in question if it did not prove itself his Lordship said:
We do not intend to discuss this matter because once an order of this kind is unable to prove itself and has to be proved by other means it becomes impossible to lay down any rule regarding either the quantum of evidence necessary to satisfy the Court which is called upon to decide the question or the nature of the evidence required. That is a question of fact which must be different in each case. Of course, sitting as a Court of appeal, it would have been necessary for us to decide this had we reached a different conclusion on the first point and had the State Government desired the re-arrest of the respondent. But as we are only asked to deal with general principles, all we need say as regards this is that it is not necessary in every case to call the Minister in charge. If the Secretary, or any other person has the requisite means of knowledge and his affidavit is believed that will be enough.
The expression used in that case in the signature was 'By order of Governor of Bombay' and the actual decision there turned on the question whether the use of the words 'By order of affected the question whether the order was or was not expressed to have been made in the name of the Governor.
56. In both these cases the view has been taken that even if the provisions of Article 166(1) are not strictly complied with it is still open to prove otherwise that the executive action in question is in fact taken by the Government. The provisions of Article 166(1) are directory and not imperative. Failure to express the action in the name of the Governor and to authenticate in the manner laid down in the Article only results in depriving the particular action of immunity from challenge that the same is not an order or Instrument made by the Governor.
57. In this case Ex. P /42 is not expressed to be made in the name of the President though it is mentioned at the foot that it is made by the order of Central Government.
58. Under General Clauses Act 'Central Government' no doubt means 'President' but use of the expression 'Central Government' is not in strict compliance with Article 77(1). The question, therefore, arises whether it is the sanction of the Central Government as required by law for taking cognizance of the offence. On behalf of the prosecution P. W. 7 Mr. Motiram Bhatia, Assistant, Ministry of Home Affairs, Police Section, was examined. He stated that Ex. P/42 bears the signature of Mr. Ghosal, Deputy Secretary, Ministry of Home Affairs and that Mr. Ghosal is authorised to issue sanction in question on behalf of the Government (Central). At the trial question of sanction was not raised and no question was asked to Mr. Bhatia in the cross-examination. But the statement of Mr. Bhatia who had requisite means of knowledge is enough under the circumstances to remove any doubt created by the use of a form though complying with the provisions of the Prevention of Corruption Act is not in strict conformity with Article 77(1) of the Constitution. Such departure does not vitiate Hie order is further indicated by the decision of the Federal Court in AIR 1945 FC 16 (I) where Spens C. J. who delivered the judgment observed as follows:
It was argued before us that the sanction in the above form did not comply with the provisions of Sections 49 and 59, Government of India Act, 1935. It was suggested that under those sections the sanction must be expressed to be given by the Governor and that it was improper that the Provincial Government should have purported to sanction the prosecution. This argument was apparently based on what were assumed to have been the views of the majority of this Court in - 'Emperor v. Shibnath Banerjee' AIR 1943 FC 75 (N). But as pointed out in that case, where special statutory powers are conferred and specific provision is made in the statute as to the manner in which the powers are to be exercised, they should be exercised by the authority and in the manner specified in the statute and in strict conformity with the provisions thereof.
59. As regards second contention on the question of sanction I am unable to agree that appropriate facts were not placed before the sanctioning authority or that there is a material difference between the facts represented to the sanctioning authority and those sought to be proved at the trial.
60. In substance the factual ingredients were that the accused in the morning of 14-12-1950 at his saloon accepted a sum of Rs. 500/- as a part payment as gratification other than legal remuneration from Moolchand Contractor as a motive or reward for doing an official act in respect of his tender regarding Gate-Lodge of Malwa Wanaspati at Indore. Further details as regards existence of previous demands and as regards the same being either for accepting the tender or securing its acceptance do not in my opinion affect the validity of sanction on the ground of failure to represent fact before the sanctioning authority.
61. In the case reported in AIR 1948 PC 82 (J) sanction set forth no facts and it was held that in the absence of such a reference burden lay on the prosecution to establish that the sanction related to facts sought to be established at the trial and that the same had been placed before the sanctioning authority. This authority cannot extend to every variation, addition or subtraction as regards every relevant piece of evidence produced at the trial in support of the prosecution case. The crucial question in Such cases is, is the departure such as might reasonably be taken to affect the judgment of the sanctioning authority on the question of sanction with regard to the matter placed before it? In my opinion the variations in this case, if at all they are called as such are not so substantial as might reasonably be taken to have affected the judgment of the sanctioning authority. They relate more to relevant pieces of evidence than to factual ingredients of the offence in respect of which sanction was given.
62. For these considerations I see no force in this part of the contention pressed before me on behalf of the accused.
63. I shall now consider the submissions made before me on merits.
64. Counsel on both sides addressed lengthy arguments on question of fact involved in this case and on the reliability of principal witnesses examined on behalf of the prosecution.
65. However I propose to deal only with salient points raised in these submissions as I consider that a detailed examination of all the points raised will be out of place in a revision petition more particularly as both the courts below have arrived at a concurrent finding as regards the truth of the prosecution case.
66. Prosecution case mainly rests on the statements of Mr. Kher, Additional District Magistrate and First Class Magistrate Indore City, who accompanied the raiding party under the orders of the Sessions Judge, Indore. Madanlal, a Panch-witness, who too accompanied the raiding party, Mulchand Contractor, who acted as a decoy and Mr. Jagavani of Delhi Special Police Establishment.
67. Mr. Kher who was assigned a place just behind the saloon and at a few feet from the berth occupied by the accused gives an account of the talk that he is said to have heard between the accused and Mulchand Contractor. Madanlal is said to have seen the incident through glass pane. He was standing at a distance and could not hear the talk between Mulchand and the accused. But he says he saw Mulchand passing notes to the accused and accused placing (them?) under his pillow.
68. Mulchand, of course gives the details of the incident and all these four witnesses depose about what took place at the search which was made immediately on Mulchand having coughed after acceptance of the money by the accused as previously arranged.
69. Scathing criticism was levelled against these prosecution witnesses in the trial court by calling P. W. 1 Mulchand as a 'self-condemned swindler', P. W. 2 Madanlal as a chance witness and a neighbour of Mulchand and 'having no status in life', P. W. 3 Mr. Kher, as a 'mesmerised agent of the Police' and Police Officers of Delhi Special Establishment as 'great concoctors who were out to harm the accused at any costs'. The criticism with regard to the reliability of witnesses could have been more restrained without any substantial loss of effectiveness of the same. But the court too seemed to have fallen in line with this in failing to deal with this part of the learned Counsel's argument in restrained but effective language. The learned Counsel for the accused was accused of having 'attempted to throw dust' an expression which could easily have been avoided. In my opinion both exhibited want of balance in dealing with this part of the case.
70. Before me the learned Counsel for the accused compared the statements of P. W. 1 Mulchand and P. W. 3 Mr. Kher who were the only witnesses who gave account of the talk between the accused and Mulchand just before the raid. He contended that this comparison revealed a difference which cannot be dismissed as immaterial and natural. In the account given by Mulchand a reference is made to the accused having already taken Rs. 1253/-, got all the material stocked at the site and then having made a further demand of Rs. 1000/- which is absent in that given by Mr. Kher. The counsel particularly laid stress upon the tone of remonstrance exhibited in the account of Mulchand which according to him could not have been missed by Mr. Kher if he really was in a position to hear. He further pointed out that whereas in Mr. Kher's statement reference is made to the circumstance of Mulchand not having deposited earnest no subject matter was mentioned while P. W. 1 Mulchand referred to the subject matter of the tender but not to 'Earnest'. Moreover in Mulchand's account reference is made to the circumstance of accused having suspected some trouble and having asked Mulchand why he was talking aloud; both these are absent in Mr. Kher's account.
71. These differences indicate intrinsic evidence, according to the learned Counsel, that the story of Mr. Kher having heard full or material part of the conversation cannot be believed.
72. Then the entire conduct of Mr. Kher firstly before the raid in agreeing to accompany raiding party and in taking down statement of F. W. 1 Mulchand and secondly after the raid in ordering searches, arrest of the accused and in permitting investigation as well as in making a memorandum of the alleged conversation and submitting report of the event to the police authorities was unjustified and illegal and this indicated that he was too willing a witness of the prosecution and became an enthusiastic member of the raiding party wedded to the successful fruition of the raid. It was possible, therefore, the counsel contended, that he might have contributed from imagination what he failed to hear. He urged that there were undoubtedly certain portions which were not heard by him and what guarantee was there that he did not miss the material part of the conversation.
In this connection the counsel referred to - 'Barindra Kumar v. Emperor', 37 Cal 467 (508) (O) and - 'Nisar Ali Khan v. Muhammad Ali Khan' AIR 1929 Oudh 494 (509) (P) and urged that though no interest or motive could be attributed to Mr. Kher, placed as he was, yet surrounding circumstances indicate that the attitude of his mind was one of 'self-deception produced sub-consciously'. The counsel further contended that witness Mulchand was partially disbelieved by the appellate court as regards his story regarding earlier bribe of Rs. 1253/- and if he is unreliable no credence can be given to him in other parts of his story. Moreover, his version that there were three earlier demands in respect of this sum of Rs. 1000/- after fresh tenders were invited stands self-condemned when we take into account the facts that the accused first came to know this fact on the 9th and he was absent from Mhow from 9th to 14th. How could there be opportunities asked the learned Counsel for Mulchand to have three occasions of contacting the accused over this matter each separated by the next by 2 or 3 days.
73. Madanlal was stamped as a chance-witness of no status and it was not probable that he would actually see particular notes being handed over to the accused. So when he says that he saw the passing of notes he is evidently not telling the truth having regard to the distance at which he was standing.
74. Apart from the consideration that, all these statements and circumstances have been carefully weighed by two courts below and they have arrived at a concurrent finding regarding the truth of the prosecution case as regards the talk in the saloon between Mulchand and the accused and also the actual passing of the notes and their subsequent recovery I was unable to pursuade myself to the view that these findings are unjust, improbable and irrational. On the other hand, I am inclined to hold that the account given by Mr. Kher regarding the details of conversation cannot be dismissed as imaginative and untrue nor am I inclined to hold that Madanlal did not see passing of notes. I shall briefly deal with the merits of the aforesaid contentions.
75. First as regards the difference between the account of the talk in the saloon given by Mr. Kher and that by P. W. 1 Mulchand it will be observed that both these broadly conform to each other, They both refer to the topics regarding (I) Anti-corruption men, (II) Tender regarding Gate-Lodge and (III) Tender regarding some other matter which Mulchand referred to as of Indore Third Class Waiting Hall. There is some difference as regards actual words used but when we remember that the account of the oral talk is being given by two persons if different intellectual standards and after a lapse of some time this is natural.
76. The tone of remonstrance in the account given by Mulchand is connected with the earlier payment of Rs. 1253/- by him to the accused. The learned Sessions Judge has not believed Mulchand on this part of his story. Naturally therefore when Mulchand introduced this subject he would connect it with the fresh demand of Rs. 1000/- by the use of expressions of remonstrance. Moreover the talk in the saloon was supported by the conduct of the accused and Mulchand. This is observed by P. W. 2 Madanlal. Mulchand saw passing of papers of the size and colour of notes in an electrically lighted saloon and it is natural therefore that he called them notes in his account, more particularly as when an immediate search was made those very notes of which Panchanama was made earlier were found below the pillow of Mr. Ayyangar. The precision of a highly trained logician in the use of expressions cannot be expected of him.
77. The fact that these notes were recovered from underneath the pillow of the accused is not seriously challenged. The suggestion of the accused is that immediately on the arrival of Mulchand he had been to the bath-room which afforded an opportunity to Mulchand to plant the same. He also asserts that the only talk that took place in the saloon was regarding third class passengers' hall at the Indore Railway Station. The suggestion of planting is inconsistent with what Mr. Kher heard as their talk and what Madanlal saw. He did not see the accused go to the bath-room when Mulchand was seated on the chair in the saloon but the passing of notes. No cross-examination was directed to bring out to Madanlal's statement the fact regarding accused having gone to the bath-room and Mulchand having handled the pillow behind his back.
78. It is only if we believe that Mr. Kher heard. nothing and Madanlal saw nothing that the prosecution case is liable to be disbelieved.
79. In the course of the argument some stress was laid on the circumstance that no Panchanama was made regarding the condition of the shutters but failure to make Panchanama of shutters cannot be taken to be such a defect as to induce us to reject Madanlal's statement altogether.
80. As regards Mr. Kher being an enthusiastic member of the raid the argument is mainly based on the assumption that all his orders were without jurisdiction. I have already indicated that some of them were not without jurisdiction but even, assuming that at least some of them were irregular they could not but be bona fide. His mentioning in the Panchanama of recovery that the notes were found in the possession of the accused and subsequent correction that they were recovered from underneath his pillow was another basis of attack on this aspect of the prosecution case. But this cannot be seriously taken into consideration as weakening the prosecution case, as judicial conception of possession may include this kind of possession and subsequent correction in the Panchanama at the instance of the accused in fact confirms recovery from there and proves bona fides of Mr. Kher than partisan nature which would detract from his reliability,
81. I cannot leave this part of the case without referring to the question with regard to the advisability of Magistrate being deputed to accompany raiding parties. The learned Counsel for the accused cited before me the decision reported in - 'M. C. Mitra v. The State' : AIR1951Cal524 , wherein P.B. Mukharji J. has criticised the practice of sending Magistrates as witnesses of Police traps in the following words:
To make the Magistrate a party or a limb of the Police during the Police investigation seriously undermines the independence of the Magistrates and prevents their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgment on the acts and conduct of the Police. It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case.
This practice is all the more indefensible here specially when there is no separation of the executive from the judiciary. The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the Police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case, without the Magistrate himself being in any way a partisan or a witness to the Police activities. There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved.
I entirely agree with the view expressed by the learned Judge. A Division Bench of this Court in Cri. Appeal No. 53 of 1S53 (B) consisting of Chief Justice and Dixit J., I am told, took similar View.
82. But however profound our disapprobation be with regard to this practice it is difficult to shut our eyes to the materials which might appear before us in particular cases. We cannot decide cases except on the basis of a careful weighing of such evidence as is placed before us.
83. I have not dealt with other aspects of the case which have a distinct bearing on the question under consideration though considerable material was piled up at the trial with regard to the same. These topics are firstly acceptance by the accused of Rs. 1253/- as an earlier instalment of bribe with regard to the same contract and secondly the earlier demands referred to by Mulchand. The learned Sessions Judge has already weighed evidence on those topics and came to the conclusion that all that it will lead to is to take the evidence of Mulchand with caution and not to accept his version unless it is materially corroborated.
84. I agree that this is the utmost limit to which things can be taken in favour of the defence even if we agree with the entire criticism. levelled on behalf of the accused with respect to those topics.
85. On the whole I see no justification for interfering with the decision of the court below on any of the grounds urged. The application is therefore dismissed.