Shreekanti4h v. The State of Bombay

In the case of the first accused there was misdirection -charge to the Jury under s. 34. The essence of the misdirection consisted in the Sessions Judge's direction to the jury that though a person may not be present when the offence is actually he remains "behind the screen" he can be committed and even if convicted under s. 34 provided the offence was the common intention. This is wrong because the essence of the section is that the person must be physi cally present at the actual commission of. the crime . is proved 11 committed in furtherance of 1954 Shreekanti4h Ramayya Munipalli v. The State of Bombay The misdirection is plain and goes to the root of the case be cause the jury returned a verdict of guilty under s. 409 read with s. 34 alone and not under s. 409 read with s. 109, I.P.C . Held, that in cases which raise questions of substance and importance the High Courts should not pass summary orders of rejection without giving some indication of their views on the points raised before them. Mushtak Hussein v. The State of Bombay ([1953] S.C.R. 809), The State v. Gurucharan Singh (A.LR. [19521 Punjab 89), Gokul. chand Dwarkadas v. The King (A.LR. [1948] P.C. 82), Hori Ram Singh v. The Crown ([1939] F.C.R. 159), Madan Mohan v. The State of Uttar Pradesh (A.LR. [1954] S.C. 637), Lieutenant Hector Thoma.< Huntley v. The King-Emperor ([1944] F.C.R. 262), and Barendra Kumar Ghosh v. The King-Emperor I.A. 40), ref erred to. ([1924] L.R. 52 'r CRIMINAL APPELLATE peals Nos. 89 and 90 of 1954. JuRISDICTION: Criminal Ap- Appeals by Special Leave from the Judgment and Order dated the 23rd November 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 1213 of 1953, and ·from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 1121 of 1953 arising out of the judgment and decree dated the 6th August 1953 of the Court of Sessions Case No. 36 of 1952. S. Narayanaiah and Dr. C. V. L. Narayan, for the appellant in Criminal Appeal No. 89 of 1954. C. Sanjeevarow Nayadu and R. Ganapathy Ayyar, for the appellant in Criminal Appeal No. 90 of 1954. ) • M. C. Setalvad, Attorney-General of Joshi and Porus A. Mehta, with him) dent. India ( G. N. the respon : 1954 Shreekantiah Ramayya Munipalli v. The State of Bombay 1180 SUPREME COURT REPORTS [1955]

1954. December 22. The Judgment of was delivered by the Court (the BosE J.-These two appeals arise out of the same trial. The two appellants, Shreekantiah accused in the trial Court and the appellant m Appeal No. 89 of 1954) and Parasuram (the second accused. the appellant in Appeal No. 90 of 1954) were: tried with a third accused Dawson on a number of different charges centering trust by a Indian Penal Code: criminal breach of public servant. The trial was by jury and all three section 409 read with section 34. They were convicted and sen tenced as under : found guilty of an offence under round section 409 of Accused No. 1. Shreekantiah to one year a fine of Rs. 500 with four months in default; Accused No. 2. Parasuram to two years and a fine of Rs. 500 with six months in default; and Accused No. 3. Dawson to six months and a of Rs. 200 with two months in default. • - trial and are third accused admitted, and a reasoned The appeal of the second accused to the High Court the one was dismissed summarily on 25-8-1953 with word "dismissed".

The first and al>' pealed separately. Their appeal was heard by another Bench and was judgment followed on 23-11-1953. This, to say the least, was, in the circumstances of this case, anomalous. The al>' from one peals arise out of the same judgment and relate to the same Jury, and what is more they raise points. This Court was appeal> disapproval of which raise . w~· draw attention to the remarks in Mushtak Hussein v. The State of Bombay ( 1 ). Those observations apply. with even greater force in the present case. The three accused are Government servants. At all material times, the first was the Officer Command~ ing the Military Engineering Stores Depot at Dehu Road near Poona. He was in over-all charge. The summary issues of substance rejections of and importance. charge to the substantially to express constrained 1) [1953) S.C.R. 809, 820. · 1 954 · Shreekantiah Ramayya Munipalli v. The State of Bombay . Bose]. S.C.R. SUPREME COURT REPORTS 1181 second was under him as· the officer -in charge of the Issue control section.

The third worked Receipts and the · secon<;l as the Assistant Stores directly under Officer. several lacs of The depot is maintained by the Central Govern ment and covers an area of some 150 acres. Govern rupees ment stores worth are kept there. On 11-9-1948 stores worth about Rs. 4,000 were illegally passed out of the depot and were Ibrahim Fida Hussain,. an agent handed over to one (P.W. 1). The case for of the approver Mohsinbhai the prosecution is that the three accused, who were in charge of these stores and to whom they had been entrusted in various capacities, into a con spiracy to defraud Government of that in pursuance of this conspiracy they arranged to sell them to the approver (P.W. 1) for a sum of Rs. 4,000. The money is said to have been paid and then the de; pot. The money the stores were passed out of is said to have been pocketed by three accused and not credited to Government. entered these properties and . On these facts a number of charges were framed.

The first set was drawn up on 9-7-1953. All three accused were jointly charged with an offence punish able under section 5(2) of the Prevention of Corrup tion Act, jointly criminal breach of charged with having committed intention of all trust in furtherance of the common under section 409 of with section 34. 1947 and all three were Indian Penal Code further ) , • Then followed a number of alternative which each was separately charged with having mitted criminal breach of trust personally under tion 409. charges m As a further alternative, jointly three were charged under section 409, Indian Penal Code read with section 109 for having abetted each other in the under sec commission of a criminal breach of tion 409. Objection was at once taken to these charges an_d the one which concerns us now was couched in the following terms: ns2 SUPREME COURT REPORTS (1955] ShretkfJhliah Rama)ya Murzipnlli v.

The Sltitl oj ·Bombay Bose]. '".Jt is ftinher submitted that the trial under sec ti01i 5(2), Corruption Act, 1947 with Indian Penal Code seetion 409 is likely to ·embarrass their defence as it would to efface the evidence (if any) of the accused persons given on oath from the lnilids of charge under section 409, lhdian Penal Code. Jurors when consideting the accused be difficult 1t is therefore prayed that the charges under section 409, Indian Penal Code and section 5(2) of the Corrup tion Att may not be tried together in one trial". The Assistant Public Prosecutor said he had no objec the one charges tion to separating the under section 5(2) for another trial. 'the Court then made the following order on 10-7-1953 : and leaving • • "Thus, though a joint trial for offence under sec tion 5(2) of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid, I think, in view of the circumstances mentioned above, it would be in the interest of justice and also in the interests of the accused it the trial for the offence under secticili 5(2) of . the Prevention of Corruption Act i~ separated. application to this extent and order that the charge should be amended accordingly".

In view of the charges 11-7-1953. The only difference section 5(2) the charge under others remained. .re-framed was dropped. of substance I therefore grant The themselves y .. accused contend Now it will be observed that the and they are all public servants that as, according to the prosecution, they purported to act in the dis sanction was necessary charge of their ·official ·duties, under section 197 of the Criminal Procedure Gode. There is ·sanction so far as is con accused there is cerned btit the ·second accused contends that none -in his case· .to justify tht present so his trial, trial, conviction and sentence 'are bad. the first The position about this is as follows : On 27·10..1949 'Gbverhor-Gefietal, act·ihg under settion 197 .of the 'Code of Criminal Procedure, sa:naioned the prosecU' the first accused for offences under sections tion of .. ... - :S.C.R. SUPREME COURT REPORTS 1183 120-B, 409, 109 and so forth, for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is con ·cerned and thus for having abetted the commission of :that offence, and also for having committed it.

Similar sanction could easily have been given again~t the other ·two accused but it was not. The sanction for these ·offences was limited to the first accused . ig54 Shreekantiah Ramqva Munipalli v. The State of Bombay Bose J. On the same date sanction was also given for _prosecution of the first accused under section 5(2) of the Prevention of Corruption Act and a similar sanc :tion was given against the second accused. The ques tion is whether •Cused can be extended to cover his prosecution under section 409 of the In our opinion, it cannot. this sanction against the Indian Penal Code. second (II of 1947) was in At the date of the sanction the unamended Preven force. '.tion of Corruption Act •Criminal breach of section 409 of the trust under Indian Penal Code was included in the definition of "''criminal misconduct" under section 5 ( 1) ( c) of Act of 1947. Therefore, an offence under section 409 ·could be tried under the Act of 1947 and the question :arose whether it would have to be tried under that Act, or whether it could also be tried in the ordinary way by the ordinary Courts.

The Punjab High Court .held in The State v. Gurucharan Singh(1) that it could not. Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and section 4 of the ing Act makes it clear that the trial can be under •either law. But in the same year the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) was passed section 5(2) of .and because of this Act trials under the Prevention of Corruption Act must be before a .Special Court and a special procedure must be fol lowed. Therefore, these various Acts created was this. First, a choice was conferred .on some authority to choose whether any given ·ac cused should be tried in a special Court with a special .Procedure and be subject to a lesser punishment under :section 5(2) or vvhether he should be tried in the ordi- the position which ( 1) A.LR. 195~ Put.jab 89. 1 954 Shreekantiah ··Ramayya Munipalli' v. · The. State of Bomhf!Y . BoseJ. • .1184 SUPREME COURT REPORTS .(1~55) nary way under section 409 ·of the with the risk of a higher pnnishment.

Indian Penal Code the two mean judgment" had by The question then 1s though the words "exercising his . who 1s to do the choosing. Under section 197 of the Code of Criminal Procedure sanction the Governor-General was at that date . mg authority .indi vidual time been deleted . Under the Prevention of Corruption Act the sanc tioning authority was "Central Government". Now it may well be that thing because of section S(a) of the General Clauses Act but that makes no difference at the moment. The that either one, or two, Government fact remains authorities were . given invested with the duty, of making an election. They had the right to say whether a certain class of public servant who trust should be had committed criminal breach of tried for that offence under section 409 "of the Indian Penal Code in the ordinary courts of the land accord ing to the normal procedure obtain.ing there and be subject to a maximum penalty of ten years plus unlimited fine or be tried for the same offence under another name in a special court by a special proce dure and be subject to no more than seven years plus a fine which is also unlimited. the right, and At this stage of the arguments we asked the learned · counsel for intended to the appellants whether they challenge the vires of this law under article 14 of the Constitution because, if they did, the matter would have to go to a Constitution Bench as we, being only three Judges, would have no power to decide it.

The learned Attorney-General at once objected because and was not point had not been raised at any stage . to be found even rn the grounds of appeal Court. The learned counsel replied · that they did not wish to take the point. Accordingly, we have to proceed in this assumption that the amending Act of 1952 (Act LIX of 1952) valid. That results in the position we have outlined above. There is a choice, not only of forum, but also the maximum penalty. . of procedure· ~d the extent of If two separate authorities are give_n ... t;h~. _ii~h~ · fo 1 for the appellants case on ,-_, S.C.R. SUPREME COURT REPORTS 1185 trial because · choose arid neither can encroach upon the preserve of the other, then the Governor-General ·has · not ·sanc tioned - the present prosecution against . the second accused and no other authority has the power ·to do so. Therefore, in that event, the sanction given tQ to cover prosecute under section 5(2) cannot be used the present it is given by another authority not competent to give it.

On the other hand, if the two authorities ai:e really one, then the election has been made clearly and un equivocally. The sanction is to proceed in the special second courts with accused is not to be exposed to the risk of the higher penalty. second accused is incompetent. In that event, the present the special procedure trial against Shreekantiah . Ramay;•a Munipalli v, The State of Bombay Boie]. second That a defect of this kind is fatal and cannot be cured is well settled. See the Privy Council in Gokul chand Dwarkadas v. The King( 1 ), the observations of 'Varadachariar, J. in Hori Ram Singh v. The Crown(2) and tl1e decision of this Court in Madan Mohan v. The State of Uttar Pradesh(3). But the learned Attorney General argued that no sanction was necessary because, according to him, despite what accused says, by no stretch of imagination can he be said to have been acting, or even purporting to act, in the discharge of his official duty.

The argument ran as follows :-The act complained of here is the breach of trust and the prior abetment of it: the breach occurred :ls soon as loaded on Mohsinbhai.'s it was no part of this accused's official duties lorries: to permit an unauthorised the goods: therefore, when he allowed that he neither acted, nor of_ his official purported duties. Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley. v. ) where Zafrullah Khan, J. held The King-Emperor( 4 that the ·act complainea that "it must be established of was an official act"' and to the observatio11s of Varadachariar, J. in Hori Ram Singh v. The Crown(•} (2) [1939] F.C.R. 159, 184. · (4) [1944] F.Q.R. 262, 269. the goods were the discharge removal of (1) A.LR. 1948 P.O. 82. ~)_ A.LR. 1954 S.C .. 637, 641. , ,;_ • •(5)"[i9391 F.C.R.:t59;186; - to act, in . .. : . ,_- - - - ·1954 ·Shreekantiah Ramayya Muhipalli v.

"Thd!ta/i of Bombay~ Bo<e]. ll86 SUPREME COURT REPORTS [1955] where, dealing with section 409 of the ·Code, he says- Indian Penal there is an ·public servant is "Though a reference to the capacity of the involved both m the charge under sec important difference between the act 1s cused as a charge under section 409 and in tion 477-A, the ·two cases, when one comes to deal with In the first, complained of. 'entrustment' · material only m connection with and does not necessarily enter later act of misappropriation or convers10n, which 1s the act com plained of". the official capacity into the What this .argument overlooks is that the stress m the passage quoted is on the word "necessarily" which we have underlined. A later passage at page 187 ex plains this: "I would observe at the outset the question to be determined with is substantially one of fact, reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of ·(he section m attempt ing to lay down hard and fast tests".

With that we cases and each must be decided on its own facts. respectfully agree. There are cases and Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too -narrowly it can never be applied, for of course it ·is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act ·can be performed the discharge of official duty as well as m dereliction of it. The section has content and its language must be given meaning. What it says is- .. - "when any public servant ...... is accused ·of any offence alleged to have been committed by him while acting or purporting to of his official duty .... ,, We have '~offence"-. act in the discharge to concentrate on therefore 'first the word Now an offence seldom consists of ·a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be l- 1 954 Shreekantiah· Ramayya Munipalli v.

The State ef Bombay Bose]. - • J - S.C.R. SUPREME COURT REPORTS 1187 third, servant"; "dominion"; the elements the disposal was In the present case, accused are, first, that alleged established. there was against the second an "entrustment" and/or second, .capa the entrustment and/or dominion was "in- his there was a city as a public "disposal"; and fourth, that "dis honest". Now it is evident that the entrustment and/ or dominion here were in an official capacity, and it in this case be no is equally evident that there could disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. There fore, the act complained of, namely the disposal, could not have been done in any other way. nocent, it was an official act; if dishonest, dishonest doing of an official act, but in either event the act was official · because the second accused could not dispose of the goods save by the doing of an their disposal; official act, namely officially permitting their release and that he did.

He actually permitted capacity, and to do it in an official and purported apart from the fact that he did not pretend privately, there was no other way in which he could intention or have done it. Therefore, whatever the motive behind the the physical if it was official in part of it remained unaltered, so the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it. If it was it was act may have been, The act of abetment alleged against him stands on the abetment was to the same footing, for his part in permit the disposal of the goods by the doing of an suffer" another person official act and thus "wilfully to use them dishonestly: section 405 of the Indian in his case Penal Code. would be incomplete without proving the official act. In both cases, the "offence" We therefore hold that section 197 of the Code of sanction was there was none the trial is vitiated therefore quash the proceedings: Criminal Procedure applies necessary, and as the start. We 1954 Shreekantiah' Ramayya MUnipalli v. The State of Bombaj Boie].

1188. SUPREME COURT REPORTS [1955] against · the second accused as also his conviction and sentence. We now turn to the appeal of the first accused. He the Indian has been convicted under section 409 of Penal Code read with section 34. The main poi!\t here concerns a vital misdirection m the section 34. The learned Additional the jury content Judge misunderstood the scope and Sessions of this section and so misdirected the 1ury about the law. charge the common it 1s proved in furtherance of The section was expounded at length in paragraphs 15 and 16 of the charge and though some of the illus there 1s much lines, the right trations given are on that 1s wrong and which, if acted on, would the. justice. The essence of cause a mtscarnage of misdirection consists m his direction to even though a person "may not be present when if he remains offence is actually committed" and even "behind the screen" he can be convicted under sec the offence was tion 34 privided intention. committed This is wrong, for it is the essence of the section the person must be physically present at the actual comnuss1on of the crime.

He need not be present· in the actual room; he can, for instance, stand guard by a gate outside ready to warn his compamons any approach of danger or wait in a car on a nearby but )le must be road ready to facilitate their physically present at the scene of the occurrence and commission must actually participate m the the crime is offence in some way or other at the 1s between actually being committed. The antithesis the preparation, the preliminary stages, the planning, which is covered by section 109, and the stage of are put into effect and carried out. Section 34 1s concerned with the latter. there must be some sort of preli nunary plarming which may or may not be at thl:' taken place scene of the cnme and which may have long beforehand, but to it the element of physical presence at the scene of occur participation which, of rence coupled with actual commission when the plans there must be added the agreement, It is true escape, •• '...,.-~ ' ' .. ... Shreekantiah Ramayya Munipalli v.

The State of BomhD:Ji Bose]. S.C.R. SUPREME COURT REPORTS- 1189; character such as standing course, can be of -a passive the intention of by a door, provided _that is done with intention of common assisting in furtherance of them all and there is a readiness to play his -part in the pre-arranged plan when the time comes for him to , The emphasis in section 34 is on the word "done": "When a criminal act is done by several persons ...... " It is essential that they join in the actual doing of the act and not merely in planning its perpetration. The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh v. The King-Emperor(1). At page 52, he explains that "participation in action" is the' leading feature of section 34. And at page 53 in explaining section 114 of the Indian Penal Code, he says- " act. , -'-. ... - (as in detail, it this case participation de "Because sometimes be obscure shows) may -established by the presumption 7uris et de jure that actual presence plus prior abetment can mean nothing else but section 114 brings the case within the ambit of sec tion 34".

At page 55 he says about section 34 that- participation. The presumption raised - "participation and joint action in the actual com mission of crime are, in substance, matters which stand in antithesis to abetments or attempts". The misdirection is plain and it goes to the root of the jury returned a verdict of the matter because -guilty· under section 409 of the Indian Penal Code -read with section 34 alone and not under section 409 read with section 109. It is part of the defence of the first accused that he was not present when the goods were loaded nor was he present when to pass out of the they were allowed that he was not present when gates, that is to say, It is true there is evidence the offence was committed. left but to show is a small discrepancy apart from the fact that there on the point, there is nothing If he was not present he evidence was believed. that he was there when the lorries indicate (1) [1924] L.R. 52 I.A. 40.

1954 Shreekantiah Ramayya Munipalli v. The Stale of Bombay Bose]. ll90 SUPREME C01JRT REPORTS [1955] ,,_' carm0t be convicted with the aid of section 34. He could hav.e been convicted of the abettnent had the that effect becaus.e there is returned a verdict to the charge about abetment: evidence 0f abetment and is right in law, But the jury the abetment part of the charge and we have no means of knowing whether ·they believed :this part of not. the evidence ignored There is also non-directi0n on .an important point which may have caused a miscarriage of justice. The case for the prosecution is that the accused disposed of the goods to Mohsinbhai for a sum of Rs. 4,000 to the second accused on the which was duly paid 10th. The learned trial Judge told the jury that- or "1v- · ,, 1 - to be utterly use, "the evidence led by the prosecution and expose and possible disgrace payment of the Rs. 4,000 is proved less", .and in telling them why he gave them a number of reasons.

But he omitted to follow this up by telling them that if they rejected this part of the prosecution to do, then the strongest part case, as he invited them of the case accused collapsed because against ·the the accused do not commit officers in the position of to a illegal acts prosecution .are prompted by some strong [email protected], usually self interest; and though a conviction can be based on evidence which does not disclose a mo ti v.e facts proved justify such a .course, yet it would ordinarily be un- safe to convict in a case like .ab- reason. for sence of proof accused. Had criminal behaviour on the jury been told this, as they should have .been, is p0ssible they would not have returned a. verdict 9£ guilty. the present indicating an adequate the part of the themseJyes unless if the -·'-" ... In the .circumstances, we have no alternative but ., to quash this .con¥iction also. We have now to consider whether there should be a retrial.

As the present tr-ial cannot proceed against the second .accused, and as all the accused are said have acted in concert each playing an appointed part in a common plan, we do not .think it would be right t. < ; ) I .. >.y· - S;C.R. SUPREME COURT REPORTS 1191 though rionnal course . t.he e.ntire matter or to direct a retrial this is. when a jury frial is set aside on the grounds of i:nis direction non-direction. We tl).erefore discharge (nqt acquit) both the appellants leaving it to Govern ment ~ither to drop p~oceed in such. manner as it may be advised.,. We do .this because the accused· expressly asked the • · charge· ·Corruption Act shbuld· be''· under the Prevention · of left over ··for a separate ~rial,. ·The two convictioµ:s ~re, ' therefore quashed and. ·also . the sentences: ~e. are . told that the first accused has already .served out his.; if paid, will be sentence. The fine refunded.

The bail bond of the second accused will .be cancelled. 1954 · Shreekanliak .Ramayya · Munipalli v. The Stale of Bomha.J Bose]. MAHANT SALIG RAM v. MUSAMMAT MAYA DEVI. 1955 January ~1 ' (~: ~· DAS, BHAGWAT! and SYED JAFER IMA¥ JJ.] '.' Custom-succession-Non-ancestral virsus collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in the District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of -Riwaj-i-am of Gurdaspur District of the year 1913-Whether a t·eliable document-,-Answer to questions 16 and 17.-Value of, property-Daughter It is now well-settled that the general custoin of the P~njab, being that a daughter excludes the collaterals from succession to the self-acquired property of her father. the initial onus, therefore, must, on principle, be on. the. collaterals to show that the general custom in the. self-acquired property <1f favour of the daughter's succession to her tather has been varied by a special local .custom . excluding· t~c, daughter which is binding on the parties. , . • . . . It is also well-settled that though the entri~s ·in the'· Riwaj-i~am are entitled to an initial presumption in favour of their cortectne,s· irrespective of the question whether or not the custom, 'as recorded, is in accord ·with the general custom, the quantum of evidence neces' sary to rebut that presumption will, however, 'vary with the ·facts the Riwaj-i and circumstances of each case.

Where, for instance; am lays down a custoin in consonance with the general agricultural custom of the province, very strong proof would be required to dis- · place that presumption; but where, on the other hand, the custom as recorded in the Ri waj'i-am is opposed to the custom generally prevalent; the presumption will be considerably weakeneq, Likewise 40-89 S. C. India/59 1