RAMESHWAR BHARTIA versus THE STATE OF ASSAM

Oct. 29

~UPREME COURT REPORTS [1953]

RAMESHW AR BHAR'l[1]IA v. • THE S'fATE OF ASSAM

[CHANDHASEKHAHA ArYAll and BHAGWATI JJ.]

Criminal Procednre C~de (V of J 898), "· 556~-" Per,01iall11 interested", rneanina of-0.tficer giving sa11.ction to prosecute, whethe1' disquali.fied froni trying the case-Di.(fcrencc bettveen sanction to prosecute and dh·cction to prosec1tte. "'

Tbe question whether 1fagistrate is "personally interested" iu case within the rneaning of s. 556, Crirninal Procedure Code, has essentially to be decided on the facts of each case. · ·

Where an officer as District Magistrate exetcis1ng his powers under s. 7(1) of the Essential Supplies (Temporary Powers) 1\ct, 1946, sanctioned the prosecution of person for violation of ss. 3 and 7 of the Assam Food Grairis Control Order, 1947, and the same officer as Additiona1 District Th.iagistrate tried a.ncl con-victed the accused, and it was contended that as the officer had given sa.nction for prosecution he \Vas "personally interested" in the case within the meaning of s. 556, Criminal P1·ocedure Code, and the trial and conviction were therefore illegal: Held, that by merely giving sanction for prosecution he did not become "person-a.lly interested" in the case and the trial and conviction were not illeg~l.

In both cases of sanction and direction to prosecute, an appli-cation of the mind is necessary, but there is this essential differ-ence that in the one case there is legal impediment to the prosecu-tion if there is no sanction and in the other case th.ere is positive order that the prosecution should be launched. For sanction, all that is necessary for one to be satisfied about is the existence of prima facie case. In the case of direction, further element that the accused deserves to be prosecuted is involved. Whether sanction should be granted or not may conceivably depend on con-siderations extraneous to the merits of the case. But where prosecution is directed, it means that the authority who gives the sanction is satisfied in his own mind that the case mtlst he initiated. Sanction is in the nature of permission, while direction is in the nature of command. •

Gokulchand Dwarka Das v. The King (1948) 52 C.W.N. 325, Government of Bengal v. Heera Lall Dass and Others (1872) 17 W. R. Cr. 39, Queen Empress v. Chenchi Reddi (1901) I.L.R. 24 Mad. 238, Girish Chunder v. Queen Empress (1893) I.L.R. 20 Cal. 857, and Emperor v. Ravji (1903) 5 Born. L.R. 542, referred to.

CRIMINAL APPELLATE JURISDIC'i'ION: Criminal Appeal No. 40 of 1951,

Appeal from the Judgment and Order dated the 1st June, 1951, of the High Court of Judicature in Assam (Thadani C.J. and Ram Labhaya l.) in. Cri-minal Reference No. 1 of 1951, arising out of Judgment and Order dated the 15th November, 1950, of the Court of the Additional District Magistrate, Lakhimpur, in Case No. 1126C of 1950.

Jindra Lal for the appellant. Nur1tddin Ahmed for the respondent .

1952. October 23. The Judgment of the Court was delivered by

CHANDRASEKHAHA A-IYAH J.-Rameshwar Bhartia, the appellant, is shopkeeper. in Assam. He was prosecuted for storing paddy without licence in excess of the quantity permitted by the Assam Food Grains Control Order, 1947. He admitted storage and possession of 550 maunds of paddy, but pleaded that he did not know that any licence was necessary. The Additional District Magistrate recorded plea of guilty, but imposed on him fine of Rs. 50 only, as he considered his ignorance of the provisions of the Food Grains Control Order to be genuine. The stock of paddy was left in the possession of the appellant by the Procurement Inspector under Jimnianama or security bond executed in his favour. He was sub-sequently unable to produce it before the court, as the whole of it was taken away by Congress M.L.A. for affording relief to those who suffered in the earth-quake, and so, the appellant was ordered to procure similar. quantity of paddy after taking an appropriate licence, and to make over the same to the procure-ment department on payment of the price.

The District Magistrate, on being moved to do so by the procurement department, referred the case to the High Court under section 438, Criminal Pro-cedure Code, for enhancement of the sentence, as in his opinion the sentence was unduly lenient and the Jimmanarrui, which was admittedly brnken, should !Jaye been forfeited.

Ranieshwa,. Bhartia

v. Tha State of Assam.

i952 The· reference was accepted by the High Court, and Rdm.eshwar the sentence was enhanced to rig·orous imprisonment Bhartia for si.x months and fine of Rs. 1,000. As regards the v. Jimmanama, the case was sent back to the trial ceiurt The' state of for taking action according to law under section 514, Assam. Criminal Procedure Code, for its forfeiture.

'rhe appellant applied to the High Court for certificate under artic_le 134 (1) (c) of the Constitu-tion that the case was fit one for appeal to this Court. This application was granted. Out of the three points urged.for the appellant, Lwo were reject-ed, but the third one was accepted as good ground, namely, that there was contravention of the pro-. 'visions of section 556, Criminal Procedure Code, and 'that consequently 'the trial before the Additional District Magistrate was ,;oid .

Chandrasekhara Aiyar J.

. . One. of the contentio~s urged before us was that Shri C.K. J3huyan was not "Director".at all and -therefore there was no valid sanction under section 38 of the Order. notification dated lGth May, 1950, and published in the Assam Ga~ette of the 24th May, 1950, was produced before us to show. that Sri O.K. Bhuyan was an Additional Deputy Commis-sioner, and it was couceiled by the appellant's counsel before the .High Court that if he was Deputy Com-mitsioner, he would be Director under the Order, as all Deputy Commissioners in Assam were notified as Directors for the purposes of the Order. Mr. Jindra Lal sought to draw distinction between Deputy Commissioner and an Additional Deputy Commis-sioner in this respect, but there is no warrant .for the same, apart from the circumstance that it is ques-tion of fact which has to be investigated afresh, and .which we cannot allow to be raised now for the first time.

'rhe primary question to consider in this appeal is ·whether there has been any infringement of section 556, Criminal Procedure Code, and consequent want of jurisdiction in the court which tried the offence. The facts relevant to this que-;tiou lie

S.C.R. SUPREME COURT REPORTS

1953 within narrow compass. The Procurement Inspector sent report on 1st July, 1950, about the nature of Rameshwar the offence; he wrote out short note on the sul>ject, Bhartia and requested that the accused might be prosecuted v. and the Assistant Director of Procurement, Dibru gar h, 1'he State of might be authorised to dispose of the paddy immedi-A.ssam. ately Bhuyan, to void loss due to deterioration. Sri who was t t en istnct [. ]. M ag1strate, . C. K. Ch a11 lliyar d-kh rase J. Lakhimpur, made the following order :--"Prosecution sanctioned under section 7 (1) of the Essential Supplies (Temporary Powers) Act, 1946, for violation of sections 3 and 7 of the Assam Food Grains Control Order, 1947." -

Rameshwar Bhartia

v. 1'he State of A.ssam.

rase ara a11 lliyar d-kh rase lliyar d-kh rase J.

The case happened to be tried by the same gentle-man in his capacity as Additional District Magistrate, and the accused was convicted as aforesaid.

T~.e argument for the appellant was that having sanctioned the prosecution, Sri C.K. Bhnyan became "personally interested" in the case within the mean-ing of section 556, and was therefore incompetent to try the same. It was contended. that the trial was not only irregular but illegal.

There is no question that "personal interest" within the meaning of the section is not limited to private interest, and that it may well include official interest also. But what is the extent of the interest which will attract the disability is subject on which different views are possible and have been taken. Section 556 itself indicates the difficulty. The Explanation to the section runs in these terms :-

"A Judge or M~gistrate shall not be deemed party, or personally interested, within the meaning of this section, to or in any case by reason only that he is ·a :M: unicipal Commissioner or otherwise con-cerned therein in public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which ainy other transaction material to the case is alleged to ha Ye occurred, and made. an inquiry in connection with the case."

This shows that to be connected with case in public capacity is not by itself enough to render the pers9n incompetent to try it. Even if he had made an enquiry in connection with this case, it would not matter. But look at the illustration:

Woa Ramdshwar Bhartia v. The State of matter. A~. Ohandra,.khara Aiya~ J.

A~. "A, as collector, upon consideration of informa-Ohandra,.khara ti on furnished to him, directs 'the prosecution of Aiya~ J. for breach of the .excise laws. is disqualified from trying this case as Magistrate."

It is evident from the words of the illustration that if prosecution is d_irected by person in one capa-city, he shall not try the case acting in another capa-city as Magistrate. ·

'rhe explanation and illustration lend some support to the view that there is distinction between pas-sive interest and an active interest, and that it is only in the latter case that the disqualification arises or intervenes.

Under sub-section (3) (a) of section 2 of the Assam Food Gr:i.ins Control Order "Director" means "the Director of Supply, Assam, and includes, for the pur-pose of any specific provision of this Order, any other officer duly authorised in that behalf by him or by the Provincial Government by notification in the Official Gazette." Section 38 provides:

"No prosecution in respect of an alleged contra-vention of any provision of this Order shall be insti-tuted without the sanction of the Director."

little confusion is likely to arise from the employ-ment of the word " Director" in the Control Order and the word "directs" in the iilustration to section 556 of the Code. It has to be borne in mind that sanction by the Director within t.he meaning of the Code does not necessarily mean "a direction given by · him that the accused should be prosecuted."

In both cases of sanction and direction, an applica-tion of the mind is ne-0essary, but there is this essen-tial difference that in the one case there is legal impediment to the prosecution if there be no sanction, 11nd in the other case, there is positi'l'e order that

S.O.R. SUPREME COURT REPORTS

the prosecution should be launched. For sanction, all that is necessary for one to be satisfied about is the existence of prima jacie case. In the case of direction, further element that the accused deserves to be prosecuted is involved. 'rhe question whether Magistrate is personally interested or not has essen-tially to be decided on the facts in each case. Pecu- 01 niary interest, however small, will be disqualifica-tion, but as regards other kinds of interest, there is no measure or standard except that it should be sub-stantial one, giving rise to real bias, or reasonable apprehension on the part of the accused of such bias. The maxim "Nemo debet esse judex in propria sua caiisa" applies only when the interest attributed is such as to render the case his own cause. The fulfil-ment of technical requirement imposed by statute may not, in many cases, amount to mental satis-faction of the truth of the facts placed before the officer. VVhether sanction should be granted or not may conceivably depend upon consideration extrane-ous to the merits of the case. But where prosecu-tion is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of permission, while direction is in the nature of command.

Rameshwar Bhartia

v. 'I'he State of Assam.

d-k ia~i;~::~ ~~ara ·

Let us now examine some of the decisions on the subject. For the appellant, strong reliance was placed on the judgment of the Privy Council in Gokiilchand Dwarkadas v. King(1), and it was argued on the basis of some of the observations of the Judicial Committee that sanction was an important and substantial matter and not mere formality. The facts in that case were that while there was sanction of the Govemment for prosecution under the Cotton Cloth and Ya·rn Control Order, there was nothing in the sanction itself, or in the shape of extraneous evi-dence, to show that the sa.nction was accorded after the relevant facts were placed before the sanctioning authority. To quote their Lordships' own word,s; (1) (19t8) 52 C.W.N. 32,5,

"There is no evidence to show that the report the report report of the Suh-Inspector to to the District District Superintendent. of of Police, which was not put in evidence, was forwarded to th'e District Magistrate, nor is is there any any evidence as to the contents of the endorsement of the District Magistrate, referred to in in the sanction, which endorse-sanction, which endorse-ment also was not put in evidence. in evidence. The prosecution prosecution · · • · was 111 position eit er to pro nee or to account to pro nee or to account account for the absence of the report report made to the District Super-District Super-intendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts on which the sanction was given."

1952 "There is no evidence to show that the report the report report of Ra·1ncshwar the Suh-Inspector to to the District District Superintendent. of of Bhartia Police, which was not put in evidence, was forwarded v. to th'e District Magistrate, nor is is there any any evidence The State of as to the contents of the endorsement of the District Assani: Magistrate, referred to in in the sanction, which endorse-sanction, which endorse--ment also was not put in evidence. in evidence. The prosecution prosecution Chandrasekhara · · • · A. J was 111 position eit er to pro nee or to account to pro nee or to account account for •yar · the absence of the report report made to the District Super-District Super-

It-is in this connection that their r~ordships em-phasise that the sanction to prosecute is an important step constituting condition precedent, and observe:

"Looked at as matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold sanction without knowledge of the facts of tbe case. Nor, in their Lordships' view, is sanction given without reference to the facts constituting· the offence compliance with the actual terms of clause 23." This, however, is no authority for the position that sanction stands on the same footing as direction. It is true that the facts should be known to the sanc-tioning authority; but it is not at all necessary that the authority should embark also on an investigation of the facts, deep or perfunctory, before according the sanction. The decision lends no support to the view that wherever there is sanction, the sanction-ing authority is disabled under section 556 of the Code from trying the case initiated as result of the sanction. On the other hand, there is plenty of support for the opposite view.

In the very early case of "!'he Government of Bengal v. Heera Lall Dass and Others('), at time when there

~1) (1872) 17 Weekly Reporter, Criminal Rulings, jg.

S.C.R. SUPREME COURT REPORTS

was no such statutory provision as section 556 of the Code but only the general rule of law that man could not be judge in case in-- which he had an interest, the facts were that Sub-Registrar, ·who was also an Assistant Magistrate, having come to know in his official capacity as registering officer comm1tte , sanct10ne prosecu that an . offence under · the Registration t' 10n, an Act su had sequent-been 0 ly tried the case himself. Full Bench consisting of Sir Richard Couch C. J. and five other learned Judges came to the conclusion, after an examination of some of the English cases, that the trial was not vitiated. The learned Chief Justice said:-

Ra'Jlieshwar Bhartia

The State of Assam.

d-han rasekhara ·ya J i r ·

"In this case, I think, the Sub-Registrar has not such au interest in . the matter as disqualifies him from trying the case; and I may observ.e with reference to some of the arguments that have been used as to the Sub-Registrar having made up his mind, and that the accused would have no chance of fair trial, that the sanction of the superior officer, the Registrar, is required before the prosecution can be instituted, and certainly I do not consider that the prosecution.will not be instituted unless the Sub-Registrar has made up his mind as to the guilt of the party. It is his duty, when he comes to know that an offence has been committed, to cause prosecution to be instituted, by which I understand that there is prima acie evidence of an offence having been committed, that there is that which renders it proper that there should be an enquiry, and the Registrar accordingly gives his sanc-tion to it; and certainly, I cannot suppose that, because an officer in his position sanctions the institution of prosecution, his mind is made up as to the guilt of the party and that he is not willing to consider the evidence which may be produced before him when he comes to try the case. In this case, there appears to be .no sucli interest as would prevent the Qase from going before the Magistrate 11is the trying authority ........ ,"

1952 In Queen-Empress v. Chenchi Reddi([1]) it was pointed Ratneshwa1· Rha.-tin out not i: that direction, tll'!lre was no when there was on]v an supervening J authorisation disability; and v. and the ca>Je of Girish Chimde1· Ghose v. The Queen-Thc State of Empress(') was dir;tinguished on the ground tliat A.""""'· there the Magistrate had taken very active part in Chnnd:;;hha.-a connection.with the case as an executive officer. 'l'he .i;y,,· J. Bombay High Court went even step further rn the case reported in Emperor v. Ravji('), \Yhere the Magistrnte who tried the case had earlier held departmental enquiry and forwarded the papers to tho Collector with his opinion that there was sufficient · - evidence to justify criminal prosecution. As he did no more than express an opinion that there was evidence, which he bad neither taken novsifted, which made criminal prosecution desirable, it was held that tho Magistrate was not disqualified from holding the trial, though, no doubt it would have been more expedient had the· Collector sent the case for disposal to another of his subordinates.

As stated already, the question whether the bar uniklr section 556 comes into play depends upon the facts and circumstances of each particular case, the dividing line being thin one somewhat but still sufficiently definite and tang\ble, namely, the removal of legal impediment•by the grant of sanction and the initiation of criminal proceedings as the result of direction. In the present case before us, we have nothing more than sanction, and consequently we are unable to hold that the trial. has become vitiated by reason of the provisions of section 55fl, Criminal Procedure Code.

The other point taken on behalf of the appellant is more substantial one. The security bond was taken from him not by the court but by the Procure-ment Inspector. It is true that it contained the under-taking that the seized paddy would be produced. be-fore the court, but still it was promise made to the particular official and not to the court. '1'he High (1) (1901) l.L.R. 24 Mad. 238. (3) (1903) 5 Bom. L.R. 5~2.

\2) (1893) I.L.R. 20 Cal. 857.

S.C.R. SUPREME COURT REPORTS

Court was in error in thinking that section 514, Criminal Procedure Code, applied. Action could be taken only when the bond is taken by the court under the provisions of the Code such as section 9t for appearance, the several security sections or those relating to bail. Clause (1) of section 514 runs:

Rameshwar Bhartia

The State of

Aasa1n.

"Whenever it is proved to the satisfaction of the Ghandrasekh<tra Court by which bond under this Code has been Aiyar J, taken, or of the Court of Presidency Magistrate or Magistrate of the first class, or when the bond is for appearance before Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound 1lY such bond to pay the penalty thereof, or to show cause why it should not be paid."

The language is perfectly clear; the power to for-feit and the imposition of the penalty provided for in the later parts of the section arise only if the preli-minary conditions are satisfied. '

'rhere was no argument addressed to us that the High Court in suggesting that action should be taken under section 514 for forfeiture of the bond acted in the exercise of its inherent powers under section 561-A. It did not purport to exercise any such power; and, moreover, there will then arise the ques-tion whether when the Code contains an express provision on particular subject, there could be any resort to inherent jurisdiction under general prov1s10n.

\Ye have got au additional circumstance in the appellant's favour in this case that the seized paddy was taken away by member of the Legislative As-sembly for giving relief to those affected by the earth-quake, and if that is true, as it seems to be from the letter written by the M.L.A. to the Additional District Magistrate on the' 1st November, 1950, it appears to us harsh, if not unjust, to ask him to produce the same paddy or similar quantity of paddy. 'l'he order of the High Court sending back the case to the

1S6 SUPREME COURT REPOR'fS [1953]

Magistrate for taking action according to law under section 514 will, therefore, stand set aside.

Ramesh war Bha»tia v. The State [[0]]Assam.

Bha»tia V'-7 generally do not interfere in the matter of sen-v. tenc~, but in this case we find that the Magistrate has The State [[0]]1 held that the appellant's plea that he was ignorant of Assam. the provisions of the Assam Food Grains Control Ghan;;:;,hhara Order, 1947, was genuine one. Having regard to Aiyar J. this circumstance and the fact that from fine of Rs. 50 to 6 months' rigorous imprisonment and fine of Rs. 1,000 is big jump, we think it is appropriate that the sentence of imprisonment imposed by the High Court should be set aside and we order a.ccord-ing ly. The fine of Rs. 1,000 will stand.

Sentence rediwed.

Agent for the appellant: Rajinder Narain.

Agent for the respondent: Naunit Lal.

1952 Oct. so.,

KESHARDEO CHAMRIA

RADHA KISSEN CHAMHIA AND OTHERS

KESHARDEO CHAMRIA

[MEHB CHAND MAHAJAN, DAS, VIVIAN BOSE and GHULAM HASAN JJ.]

Civil Proccditre Code (Act Vof 1908), ss. 47;115, 151-Execn· lion proceedings-Dismissal of adjoibrnment 1Jelition-Dis1nissa.l of execu,tion case also by same order without askinft pleader what he ha.s to sny-Restoration of case iinder inherent voivers-Appeal and revi-sion petition to IIigh Court froni orfler of restorcition-Maintainabi-lity of appeal-Interference by High Oonrt in revision-Legality-Bevisional powers of High Gou.rt-Appeal frvrn orders 1na.de u,nder {nherent poivers.

Subordinate Judge dismissed an application by decree· holder for adjournment of an execution case and by the same order dismissed the execution case itself '\vithout informing the decree--holder's pleader that the application for adjournment had been dis-missed and asking him whether he baa to make any suhmission in