Devi Ram Deep Chand and anr. Vs. the State

Devi Ram Deep Chand and anr. vs The State

Disposition Petitions dismissed Court Punjab and Haryana Decided Feb 01, 1954

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Citation: sooperkanoon.com/614419
Court: Punjab and Haryana High Court
Judge: Falshaw and; Dulat, JJ.
Decided On: Feb 01, 1954
Case Number: Criminal Misc. No. 450 of 1953
Subject: Service;Criminal
Disposition: Petitions dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Service;Criminal
Outcome / disposition: Petitions dismissed
Acts & sections: Railways Act, 1890 - Sections 137; Indian Penal Code (IPC) - Sections 21 and 408; Prevention of Corruption Act, 1947 - Sections 2

Parties & Advocates

Appellant / Petitioner

Devi Ram Deep Chand and anr.

Advocate H.L. Sibal, Adv.

Respondent

The State

Advocate D.N. Avasthy, Adv. General

Legal References

Acts: Railways Act, 1890 - Sections 137; Indian Penal Code (IPC) - Sections 21 and 408; Prevention of Corruption Act, 1947 - Sections 2
Reported In: AIR1954P& H189

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - at..........and it is therefore suggested that the cases may be transferred from the court where they are pending to the court of the special judge.2. no evidence has been heard in these casesyet and it is therefore not possible to say withany precision what facts exactly the prosecutionwill succeed in proving. in a general way, however,the allegations against the petitioners are thatthey received from certain persons certain sumsof money by way of deposits in connection withthe booking of some goods wagons, the depositsbeing refundable, but that the petitioners did notrefund the entire amount that had to be refundedto the persons making the deposits but kept backsome part of it with themselves & thus committedcriminal breach of trust. at one stage, it appearsthat the suggestion was that these amounts ofmoney were retained by the petitioners as bribes,but the learned assistant advocate-general hasstated before us clearly that that is not the caseto be proved. 3. mr. sibal on behalf of the petitioners contends that even on the facts sought to be established the offences would fall under act ii of 1947 because the breach of trust has been committed by public servants which would be an offence under section 5 of act 2 of 1947. in reply, the learned assistant advocate-general states that the prosecution do not think and do not intend to prove that the petitioners are public servants within the meaning of act 2 of 1947 and they cannot, therefore, undertake a prosecution under that act. it is common ground that act 2 of 1947 applies only to public servants. section 2 of the act says:'for the purposes of this act, 'public servant' means a public servant as defined in section 21 of the indian penal code'so that it is clear that if the petitioners are not public servants within the meaning of section 21, penal code, they cannot be called public servants for the purposes of act 2 of 1947 either. a reading of section 21, penal code, would show that in the absence of any exception in.....

Full Judgment

Dulat J.

1.The petitioners are Goods Clerks employed by the Railway and they are being prosecuted in the Court of a first class Magistrate on charges under Section 408, Penal Code. It is contended on their behalf that the offences imputed to them are offences under Section 5 of Act II of 1947 triable by a Special Judge alone and not capable of being tried by a Magistrate and it is therefore suggested that the cases may be transferred from the Court where they are pending to the Court of the Special Judge.

2. No evidence has been heard in these casesyet and it is therefore not possible to say withany precision what facts exactly the prosecutionwill succeed in proving. In a general way, however,the allegations against the petitioners are thatthey received from certain persons certain sumsof money by way of deposits in connection withthe booking of some goods wagons, the depositsbeing refundable, but that the petitioners did notrefund the entire amount that had to be refundedto the persons making the deposits but kept backsome part of it with themselves & thus committedcriminal breach of trust. At one stage, it appearsthat the suggestion was that these amounts ofmoney were retained by the petitioners as bribes,but the learned Assistant Advocate-General hasstated before us clearly that that is not the caseto be proved.

3. Mr. Sibal on behalf of the petitioners contends that even on the facts sought to be established the offences would fall under Act II of 1947 because the breach of trust has been committed by public servants which would be an offence under Section 5 of Act 2 of 1947. In reply, the learned Assistant Advocate-General states that the prosecution do not think and do not intend to prove that the petitioners are public servants within the meaning of Act 2 of 1947 and they cannot, therefore, undertake a prosecution under that Act. It is common ground that Act 2 of 1947 applies only to public servants. Section 2 of the Act says:

'For the purposes of this Act, 'Public Servant' means a public servant as defined in Section 21 of the Indian Penal Code'

so that it is clear that if the petitioners are not public servants within the meaning of Section 21, Penal Code, they cannot be called public servants for the purposes of Act 2 of 1947 either. A reading of Section 21, Penal Code, would show that in the absence of any exception in respect of Railway servants a Goods Clerk in the service of Government would ordinarily be included in the definition. It appears, however, quite clearly that an exception has been made by the Indian Railways Act, 1890 in respect of Railway servants. Section 137 of that Act runs:

'Every railway servant shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code'

and then Sub-section (4) adds:

'Notwithstanding anything in Section 21 of the Indian Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in Sub-section (1).'

Chapter IX of the Indian Penal Code consists of Sections 161 to 171 only, and, it is for the purposes of these sections alone therefore that a Railway servant can be called a public servant within the meaning of Section 21, Penal Code, and he cannot otherwise be called a public servant for the purposes of Penal Code. If, therefore, the prosecution case is that the petitioners committed offences under Section 408, Penal Code, only they cannot call the petitioners public servarits and no question of the application of Act 2 of 1947 arises. In my opinion, therefore, the petitioners are being rightly proceeded against in the Court of a Magistrate and there is no occasion for withdrawing these cases from that Court. These petitions fail and are dismissed.

4. FALSHAW J.: I agree.

Same Parties Devi Ram Deep Chand and anr. vs The State Same Subject Service;Criminal Same Judge Falshaw and; Dulat, JJ. Acts & Sections Railways Act, 1890 - Sections 137; Indian Penal Code (IPC) - ...

Service;Criminal